LAWS13017_05 Pleading and Summary Disposition

1301 7 Civil Procedure topic 5 pleading

and summary disposition I'm Steven Kolb

RAM in topic 5 will be considering

planning and summary disposition

pleadings are documents exchanged

between parties to litigation in which

they set out the material facts they

intend to allege at the hearing of the

action we'll also examine situations in

which a party to a civil legal

proceeding may take steps to bring about

a summary disposal of the matter this

involves situations where a court either

upon application of a party or rarely on

its own initiative may call upon the

other party to show cause usually act by

affidavit as to why the claim or defense

ought not to be struck out or judgment

entered against them the circumstances

in which such a summary disposal may

occur and not confined solely to the

situation of failure to comply with the

rules concerning filing of documents or

other procedural stipulations but may

actually involve a form of merits based

determination either of the action or

some material part of it so we'll be

looking at for example default and

summary judgment so just looking at the

objectives for this week you can see

under pleading so I'd like you to

understand the role of pleadings in a

Civil Procedure to be able to apply some

basic rules in relation to plain English

drafting and to be able to critique

various types of proceedings in relation

to summary disposition you should be

able to describe what is meant by the

expression summary judgment default

judgment and discontinuance of an action

identifying the differences between

those things

understand the processes whereby the

parties to level 2 civil legal

proceedings may apply for summary

disposal of an action and finally to

describe the steps required to be

complied with under the uniform Civil

Procedure rules and the related


in order to affect the summary dispersal

of a proceeding alright let's get into

it and look at the contents of a

pleading pleadings themselves serve a

number of purposes including informing

the court on matters to be decided

between the parties defining the issues

the limits of disclosure and evidence

necessary for a trial and to provide a

record of the ambit or the extent of the

matter in question to give you an

overview I've produced the following

diagram which I've called the pleading

pathway the diagram explains the

pleading process just looking generally

up the diagram before we go through each

box briefly most litigation involves the

three boxes shaded green and does not

involve cross claims so if we look at

the three boxes shaded green which at

the start of an action there's the

originating process which we've already

looked at in a previous week which is an

application or claim filed by a

plaintiff or applicant and there's a

response to that which is a notice of

intention to defend which contains the

defense which is filed by the defendant

respondent and then ultimately there is

a reply which is an optional pleading

filed by the plaintiff or applicant

which addresses the issues raised in the

defense apart from that there's all

these different types of pleadings

shaded in blue which are not required in

a particular action that may arise so

they're optional one is a cross claim

that is it's a cross claim against the

plaintiff or an applicant or a third

party which is filed by the defendant or

the respondent that then leads to a

cross defense filed by the plaintiff

cross defendant and third party cross

defendant then there is a cross reply

which is the optional pleading filed by

across claimant

there may be a further cross claim filed

by a cross defendant against an existing

or a new party

a further cross defense a

further cross reply and ultimately the

end of the proceeding once it goes

through the trial and all of those ones

which I've shaded in blue which of the

cross claim onwards as I said don't

necessarily arise in every litigation

but certainly the ones in green do so so

it's quite common in this process for

parties to seek and obtain leave to

amend their pleadings as the matter

progresses changes are recommended and

things need to check and things need to

happen to reflect those changes the most

important pleading rule is rule 149

which is called statements in pleadings

and it says that each pleading must be

as brief as the nature of the case

permits and contain a statement of all

the material facts on which the party

relies but not the evidence by which the

facts are to be proved and must state

specifically any matter that if not

stated specifically may take another

party by surprise and subject to a later

rule 156 the pleading must States

specifically any relief the party claims

and if a claim or defense under an act

is relied on it needs to identify the

specific provision under that act for

that furthermore in a pleading a party

may plead a conclusion of law or raise a

point of law if the party also pleads

the material facts in support of that

conclusion or point of law so what then

is a material fact it's something that

I've referred to in relation to that

particular provision a party must plead

all the facts necessary to constitute a

complete cause of action or defense so

that if the facts pleaded are proved or

they're admitted the party pleading them

will be entitled to the relief sought in

the pleading material facts also extend

to the relief being sought and such

other facts as will ensure the other

party is not taken by surprise

immaterial facts clearly should not be


but in practice the rule is not so

strictly interpreted as to preclude

appropriate introductory matters such as

a description of the parties their

occupation location of their business

and so on

the requirement that a party must plead

all material facts does not mean that a

party must be committed to one assertion

or consistent series of assertions as to

what the facts are but inconsistent

allegations of facts or grounds of claim

must be clearly pleaded as alternatives

according to rule 154 so you might state

in a particular line of argument and

then state in the alternative and then

state a further line of argument which

contradicts the first line of argument

as an alternative in the pleading the

facts in the nature of evidence of the

material facts establishing a cause of

action or defense should not be pleaded

so facts in the nature of evidence

should not be pleaded a party may

however state a conclusion of law as

we've seen before if the material facts

in support of that conclusion are stated

rule one four nine several two parties

relying on a statutory cause of action

or defense must identify the specific

provision in that pleading rule one four

nine one II there are numerous

miscellaneous pleading rules set out in

your notes which you must only get to

know but you must have to follow in any

pleadings that you create to of

particular importance are the formal

requirements for pleading set out in

rule one four six and statements in a

pleading is required by rule one four

nine rule one four nine states that each

pleading as we've seen must be as brief

as a nature of the case permits etc and

it's important that you complied with

those particular rules which I've found

already already outlined earlier but

some let's change tact

now and consider the relevance of plain

English drafting on on pleadings first

thing to be aware of is the collection

of legal fossils which I've put into

this slide the rules themselves don't

really prescribe any particular written

style and there is a legalese or special

language for pleadings which the modern

movement for plain English drafting is

really sought to address and limit

redrafting of court formers into modern

English has also assisted this process

but generally you should avoid legal

fossils so in the table we've got we've

got one column being the legal fossil

that you should avoid and the other

column sets out the alternative and I'll

give you some examples so I go through

all of them you can look at them

yourself but for example above mentioned

the alternative to that is simply

omitted or recast it and put it in a

different way but admitting it's

probably the best thing here in another

thing that can be omitted here in after

or here and before again you can

probably omit those or read them or I'll

write them in an in a different way

the words they're under you just simply

put under thee save as should just be

the word accept so there's lots of

examples of some legal fossils there are

also other types of surplice words and

phrases which should be looked at and

avoided as well so examples include

negligence on the part of the said

defendant you should you say the

defendants negligence at that time and

on that date to say at the same time for

the duration of cheering together with

interest thereon pursuant to the

provisions of just say an interest under

so they're much clearer shorter passages

remember that one of the objectives of

pleadings is brevity

and clarity alright

so further principles of plain English

drafting to watch out for would include

the use of active not passive verbs

defined terms if they have a specific

and necessary role for example in

complicated matters defining all the

relevant terms in the dictionary section

the beginning of the pleading may make

the pleading much more readable and

comprehendible don't use discriminatory

language make sure you put in headings

to signpost longer pleadings and

vertical lists when it's appropriate

simply to break up the detailed

information in terms of drafting

generally in writing generally I suggest

you have a look at William strikes book

on the elements of style another useful

book is the Commonwealth style guide and

there are also numerous pleadings books

and this is this whole concept of plain

English drafting you'll come across when

you do the subject on advanced statutory

interpretation and drafting we'll get

some more practice of looking at these

types of thumb rules and how you use

them just return back to the pleadings

the first or primary pleading is a claim

and it must be in the approved form

which is form 22 which I'm showing you

the first part of that form in this

slide and it incorporates the statement

of claim according to rule 22 separable

one so the first part of form 22 is the

heading which is really an introductory

statement consistent with form 16 and it

identifies the parties their

relationship with the dispute for

example if they were plaintiff or

defendant if a party is a defendant the

statement need only identify that at all

material times they were incorporated if

they are in company if they are a

company that they're entitled to sue or

be sued in their own name the claim must

disclose a cause of action this is set

out in the body of the statement of

claim in numbered paragraphs

usually this is done in chronological

order all material facts must be

included to support the claim it should

not anticipate a defense it should deal

with a defense you're dealing with a

defense rather is the role of a reply

not a claim the nature and amount of

damages to be claimed have to be pleaded

under rules 150 and 155 and there are a

whole host of specific matters that must

be pleaded said Avenue 150 for example a

breach of contract or trust every type

of damage that's claimed and make sure

that you thoroughly work your way

through rule 150 because there's quite a

few of those particular matters that

have to be specifically pleaded a claim

for general relief should also be

pleaded under Rule 156 rule 159 requires

a party to apply for an award of

interest to allege the particulars of

the amount or amounts upon which

interest is claimed the interest rate or

rates claimed except if the party is

claiming at a rate or rate specified in

a practice direction and the method of

calculation of that interest for example

that interest may arise under terms of a

particular contract but there are

default rates of interest in various

practice directions which will which

I'll include in the notes in terms of

the defense with regard to general

contents the defendant must plead in the

defense which is informed 17 all the

facts showing that the plaintiffs claim

is not maintainable and all the grounds

of defense which if not pleaded may

surprise the plaintiff or which raids

matters of fact not arising out of the

statement of claim have a look at rule

once 150 sub rules one and for the

defense as I said users formed 17

whereas the defense enter counterclaim

which is a claim back from the defendant

against the plaintiff users form

eighteen denials the defendant pleads to

each allegation in the statement of

claim rule 165 sub rule 1 and 166 sub

rules 4 to 6 we have a look at 1 6 5

answering pleadings it says that a party

may in response to a pleading pleaded in


an on admission at admission or another

matter a party who pleads a non

admission may not give or call evidence

in relation to a fact not admitted

unless the evidence relates to another

part of the party's pleading so you can

deny something you say or you can say

something is not admitted or you can

admit it

or you can just mention somehow the

matter this which is really not a

response at all rule 166 talks about

denial and non admission and it's a very

important rule because there are some

consequences that arise in making these

choices between denials and non

Domitian's an allegation of fact made by

a party in a pleading is taken to be

admitted by the opposite party required

to plead it to the pleading so it's

taken to be admitted unless the

allegation is denied or stated to be not

admitted by the opposite party in the

pleading or if won't rule 1 6 8 applies

which will have looked at in a minute

so you do have to respond or you'll be

taken to it to have admitted something a

party may plan an on admission only if

the party has made inquiries to find out

whether the allegation is true or not or

not and the inquiries for an allegation

are reasonable having regard to the time

limited for filing and serving the

defense or other pleading in which the

denial or non admission of the

allegation is contained and the party

remains uncertain as to the truth or

falsity of the allegation so in other

words you can complete an odd admission

provided that you've made inquiries at a

reasonable given the timeframes

you're uncertain as to whether the

allegation is true or false so you do it

not admission a party's denial or non

admission of an allegation of fact must

be accompanied by a direct explanation

for the party's belief that the

allegation is untrue or cannot be

admitted if a part is denial or non

admission of an allegation does not

comply with the rule understated than

the party are taken to admitted to event

if the allegation a party making an on

admission remains obliged to make any

further inquiries that may become

reasonable and if the results of those

inquiries make possible the admission or

denial of an allegation they have to

amend the pleading appropriately so in

other words if they subsequently find

out the answers to whether something is

true or false they need to amend their

pleading and denial contained in the

same paragraph as other denials is

sufficient if it is a specific denial of

the allegation in response to which it

is planted so the denial will attach to

these specific facts that are intended

to be denied now a denial may be

expressed but it can also be implied

it's also possible to plead that an

allegation is not admitted so this is

appropriate if the allegation is outside

the knowledge of the defendant after

having made inquiries as to whether the

allegation is true or untrue this is

rule 166 several three an explanation

for the denial or not admission is

required or a default they've taken to

have admitted it under one six six five

all right an ambiguous plea may be

deemed to be an admission according to

the authority of Thorpe and holdsworth

1876 three Chancery Division six three

seven you should also avoid negative

Pregnant's so this would be where a


for example plaintiff pleads I had no

authority the defendant denies that

results in the defense ineffectively

plea effectively pleading that a had

authority soft planner pleads a had no

authority the defense by denying that

impliedly says that a had authority due

to the double negative

in such situations the defense may be

ordered to provide particulars in the

consider in the case of Pinson and

Lloyd's and national provincial foreign

bank limited 1941 to King's Bench at 72

also this is the notion of affirmative

pleading the defendant should admit all

that is appropriate on the defense a

defendant may admit or confess an

allegation but allege further facts

which are void the allegation this is

known as a confession and avoidance for

example you might admit that there is a

contract but allege that alleged facts

that the contract is illegal and

therefore inapplicable or void so you

say there is a contract that's the

admission or confession but alleged that

the on the facts it's illegal or void so

that's the avoidance and the defendant

bears the onus of proof on the latter

facts Cameron and Troy is the relevant

case and you can find this at 2001 W

ACSA or Western Australian Supreme Court

appeal four hundred and that's extracted

at eleven point five point 16 in the

textbook the next issue to consider us

out of a counterclaim now mentioned

earlier that this is inform 18 but the

counterclaim is an action in its own

right brought by the defendant against

the plaintiff and it enables the joint

trial of the two claims the claim and

the counterclaim the defendant follows

the same planning requirements as per

the statement of claim at scene in rules

177 178 and 182 a reply is need

it should the plaintiff wish to plead to

specific allegations contained in the

defense a look at rules 165 and 168 the

reply can only be used to meet the

defense it is not there to raise a new

cause of action nor allege any matter

which is inconsistent with the statement

of claim rule 154 the plaintiff must

defend any counterclaim otherwise the

defendant can obtain a default judgment

on the counterclaim a defendant who may

make a claim against a plaintiff by way

of set-off a set-off is essentially a

defense whereas a counterclaim is an

independent cause of action have a look

at Rule 1 7 3 will now look at

particulars the rule specifies certain

formal allegations in respect to which

particulars of the material facts must

be given including such matters as

misrepresentation fraud breach of trust

willful default and undue influence

these are all set out on rules 150 155

157 and 159 the objective here is to

help clarify the case to be met the

evidence which is needed and overall to

reduce the requirement for disclosure of

documents pleadings defined the issues

in general terms where as particulars

control the generality of the pleadings

and restrict the evidence to be led by

the parties at the trial

and give the information enabling the

other party to know what case he or she

will be met with at the trial and to

prevent a surprise this was some

suggested by Justice McClellan's in P

Alto PIL ATO against the Metropolitan

Water sewage and drainage board nineteen

fifty nine seventy six weekly notes New

South Wales 364 at 365 pleadings and

particulars are not strictly enforced

however and evidence is admitted if the

parties have ignored inadequacies

in their pleadings or if to do so is not

likely to pull the surprise or injustice

to the other party

so pleadings is an art it's not an exact

science the details evidential

procedures in Chapter 11 and part 8

exchange or correspondence instead of

affidavit of evidence affidavit evidence

must be complied with before bringing an

application for an order for further and

better particulars rule 443 a cost

section may be imposed on a party not

providing sufficient particulars under

Rule 161 so it's some advisable to take

care when drafting your pleadings and to

fully particular eyes what you're

alleging so that you can avoid any

consequences of orders for further and

better particulars which just add costs

let's consider striking out pleadings

the court has a discretionary power to

strike out all or part of a pleading

that does not disclose a cause of action

or as otherwise objectionable in some

way a court may order a stay dismiss a

proceeding or enter judgment as a

consequence of striking out of pleading

have a look at rules one six two and one

seven one there are a number of

situations where parties can abuse the

system for example plaintiffs can abuse

the legal system in numerous ways

requiring courts to balance access to

justice efficiency of the system in

managing proceedings so problem

plaintiffs can display all sorts of

characteristics for example they

commence proceedings which are excessive

vexatious or an abuse of process they

engage in interlocutory behavior which

is unnecessary expensive and excessive

they engage in non-compliance

for example they don't use correct

originating process that I'd serve

things properly they don't listen to

court orders or directions they fail to

appear they fail to engage with

alternative dispute resolution they

failed to pay costs

so after having been ordered to do so so

what does the court do in response to

these problem plaintiffs essentially the

responses come down to three types

declarations the Proceedings of

vexatious or an abuse of process there

might be summary dismissal dismissal for

want of prosecution summary dismissal

itself and default and summary judgments

and of course as always the the prospect

of adverse cost orders so that's on the

plaintiff side what about a problem

defendant a problem defendant can also

abuse the legal system in various ways

requiring courts to balance access to

justice and efficiency of the system and

managing proceedings so it could be once

again three types of problems in

defending proceedings they file improper

or inadequate defenses they engage in

interlocutory behavior that's

unnecessary expensive or excessive or

they engage in non-compliance again

avoiding service ignoring court orders

and directions not appearing not

participating engaging with ADR

processes and failing to pay costs in

response the courts can strike out

defenses or strike out parts of defenses

they can engage in summary dismissals

such as default judgments and summary

judgments dismissal for water

prosecution of cross claims summary

dismissal of cross claims and of course

cost orders let's now look at a summary

disposition in this section we'll be

looking at procedures which are designed

to cut short the standard litigation

workload which we outlined earlier these

procedures can avoid abusive of course

through spurious or improper claims or

defenses they are procedures for summary

judgment default judgment and the

inherent powers of the court to state

proceedings as an abuse of process let's

start by looking at default judgment

this generally occurs in two instances

firstly whether it's been a failure to

take a step required by the rules or

where there's been a failure to comply

with a preemptory of court order usually

called a self-executing or springing

order the classic case is default by the

defendant in filing a notice of

intention to defend within 28 days after

service of the claim zero 137 and chap

nine part one especially rules 280

through two 281 the judgment is obtained

as of right by filing and by filing an

affidavit of service and a request for

judgment the plaintiff must prove

service of a claim on a defendant in

default before judgment may be given

under this division against the

defendant rule two eight to default

judgment may be entered if the

plaintiffs claim is for damages are

liquidated demand or a debt under Rule

283 all of these are some certain they

are easily calculate only be calculated

if the claim is for damages

interlocutory judgment is entered for

the plaintiff which means that their net

will need to be a further hearing to

assess the amount of the damages because

that's not a certain sum such as a debt

now look at rule 2 8 for less common is

a default by the plaintiff enabling a

defendant to apply for an order

dismissing the proceeding for wonderful

gospel what a prosecution it's less

common these days because of the advent

of case management and judges

controlling the process of the

litigation now the fact that you've got

a default judgment may not necessarily

be the end of the matter

because default judgments can be set

aside under Rule 290 the defendant must

show by affidavit a defense on the

merits the way this will most

effectively be shown is by an Xing to

the affidavit a copy of a draft defense

proposed to be delivered an explanation

for the ax failure to appear in the

first place and an explanation for any

delay in applying to set the judgment

aside generally attire

the defendant will be penalized to the

extent of having to pay the planet's

costs thrown away on obtaining the

default judgment and the planet's costs

on the application to set it aside

even though on that application the

defendant is perhaps is ultimately the

successful party let's now consider

summary judgment summary judgment is a

shortcut procedure available to both

plaintiffs under rule 292 and defendants

under rule 293 who can show that their

claim has no real prospect of a defense

or there is a defense to a baseless

claim for example expiry of limitation

period respectively evidence is given by

affidavit unless the Court gives leave

under Rule 295 and the service must

occur at least eight business days

before the hearing date under Rule 296

directions may be given under 298 and

costs may be awarded under 299 it is

possible for a court to set aside a

summary judgment where a party did not

appear on the hearing of the application

under Rule 302 under Rule 304 a

plaintiff or applicant may discontinue a

proceeding or withdraw part of a

proceeding before being served with for

a proceeding started by claim the first

defense of any defendant or for a

proceeding starting by application the

first affidavit in reply from a

respondent however after being served

with the first offense or first

affidavit in reply a plaintiff or

applicant may discontinue a proceeding

or withdraw part of it only with the

leave of the court or consent of the

other parties under Rule 305 a defendant

may discontinue a counterclaim or

withdraw part of it before being served

with the plaintiffs answer to a

counterclaim and only with the courts

leave or the consent of the other

parties after

being served with the plaintiffs answer

to the counterclaim the plaintiff is not

forced to continue to prosecute his or

her action if he or she decides not to

do so the rules provide for

discontinuance with a sanction of a

costs penalty the effect of

discontinuance is not the same as a

judgment nor does it operate as a


there's no res judicata so the plaintiff

may institute fresh proceedings for the

same cause of action see me of course

it's within the limitation period

discontinuance is affected by filing a

notice of discontinuance or withdraw

using form 27 under Rule 309 staying or

dismissing pleadings as an abuse of

process abuse of process is a misuse of

court procedure which would manifestly

make it unfair to a party to litigation

before it or would otherwise bring the

administration of justice into disrepute

among a right of thinking people that

was suggested by Lord did bloc in the in

the case of Hunter and the Chief

Constable of the West Midlands Police in

1982 peels case is five to nine at 5:36

a registrar may refer the issue of an

originating process to the court for

review if it appears to be an abuse of

process is frivolous or vexatious under

Rule 15 courts may exercise an inherent

jurisdiction to stay proceedings as an

abuse of process whether has been

considerable delay and commencing or in

the conducted proceedings the authority

for that is but insert s ba T is ta TOS

against roads and traffic Authority of

New South Wales 2006 2 to 6 CLR to 5/6

at page 4 3 8 ex rap extracted into

10-point 7.10 C NEX a sheís litigants

and vexatious proceedings are those

which are intended to her

rats annoy cause delay or are taken for

some other ulterior purpose or simply

lack reasonable grounds this is the

definition provided by burner cans in

Australian Civil Procedure ninth edition

and page 114 the vexatious proceedings

act 2005 Queensland at section 6 enables

an order declaring a party a vexatious

litigant thereby restricting them quite

severely in their ability to commence or

to continue with litigation interest

this two types of interest essentially

interest up to the judgment and interest

after a money order it's made looking

firstly an interest up to judgments in

the absence in absence of a right to

interest the civil proceedings Act 2011

Queensland section 58 provides a

discretion in the court to award

interest this is to compensate the

plaintiff who has been kept out of their

money by a defendant you can see this

set out of the rules in Rules 283 sub

rules 5 through to 9 and the rate of

interest since the 1st of July 2007 is

10% the second type of interest is

interest which arises after a money

order has been made the civil

proceedings act of 2011 Queensland

section 58 provides that section 59

rather provides an interest is payable

from the date of a money order on the

money order debt unless the court

otherwise orders the rate since the 19th

of the 4th 2013 is now nine percent so

topic 5 has focused on planning and

summary disposition pleadings are

documents exchanged between the parties

to litigation in which they set out the

material facts they intend to allege at

the hearing of the action they are

essential in both defining to the court

and the parties the issues in dispute

confining the extent of

evidence and disclosure of documents

needed and in providing a record of the

particular proceeding summary

disposition has been discussed - namely

summary judgment which you need to spend

some time looking at the summary

judgment rules and the readings in the

text default judgment both of which are

procedures leading to an early

resolution of disputes topic file also

discussed how in actions discontinued

briefly looked at the stays interest in

vexatious litigants in the next topic we

will be examining disclosure

until then bye for now