Civil Procedure Pleadings and Their Importance in Court Proceedings, Lecture notes of Law

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Drafted SOC {Statement of C} • Things going back and forth • Limitation 14 days• Parties can admit/deny claims• There are diff ways of responding• Facts + Law. ▪ Rely on facts which are related to the elements of COA. ○ Damages, interest, cost and any order the crt will se fit ← ask for this▪ Prayer for relief ○ O20 states what we have to do• O69 - states the formatting requirements. • YouTube - civil pro by Professional Conner (teach in Melbourne)• SUMMARY the statements in writing of the claim or demand of the plaintiff, and ○ of the defence of any defendant thereto, and ○ of a counter-claim (if any) of a defendant, and ○ of the reply of the plaintiff to any counter-claim of a defendant, and ○ any subsequent pleading; ○ SCA {Supreme Crt Act}: includes -• PLEADINGS Details + further Particular facts○ Particulars: • There has to be logical flow• Substance of the para above - More specific▪ Sub-subtitle : Particulars○ Subtitle - Contract• What you are asking the crt for○ Lecture 20 - Prayer of relief• More below • STATEMENT OF CLAIM Procedural fairness - the person who is being sued have right to know what they have been accused of. ○ Identify and narrow the points of dispute.• As a lawyer you have duty to save the crt's time. ▪ reduce delay and expense - Save the crt time○ Narrow the parties to definite issues, and reduce delay and expense.• Have evidence. ○ Establish a permanent record of the dispute.• To ensure procedural fairness is afforded to the parties.• PURPOSE OF PLEADINGS Place clearly in issue the allegations you will be required to prove as fact.• Focus the case.• Demonstrates to the other party and the Court that you ‘know what you are doing’.• Judge will reading this first and sometime make judgement based on it. • BENEFITS GOOD PLEADINGS Lead to failure of the action (summary judgment/strike out• Increase costs (later amendment, requirement for further and better particulars, dealing with applications relating to the deficiencies) • Harm the perception of the client’s case• Expose your client to costs orders in relation to delay if amendments required and/or pleadings are challenged • CONSEQUENCE POOR PLEADINGS the action number▪ the title to the action▪ Each pleading must bear on its face:○ Rule 7 –• GENERAL RULES FOR PLEADING - O 20 Pleadings LLB450 - Civil Procedure Page 1 the title to the action▪ the description of the pleading;▪ the Date the writ was issued; and▪ the date filed. ▪ Each pleading must be divided into separate paragraphs and numbered consecutively. ○ Each allegation must be contained in a separate paragraph○ Doesn't mean you put everything in there. Need to be concise. ○ Parties are bound by what pleadings says. • No new issues should be asses. ○ All issues should disclosed and no new issue should be raised • Pleadings are concerned with material facts that are connected to the COA. • Parties should not make any claims that are inconsistence with the previous pleadings• Set out of the process and set out the burden of the proof for you and burden of proof pri-trial. • The pleading must contain a statement in summary form of the material facts relied on but not the evidence by which those facts are to be proved (the “fundamental rule” of pleading); ▪ D's conduct has caused damaged to the car engine NOT RAC mech carried out certain assessment and found the car engine has been damaged by the D's conduct. ▪ The statement must be as brief as the nature of the claim permits▪ Facts, not evidence (the fundamental rule)○ Pleading of law only w/out any facts = not permit▪ Facts only, but not law = permitted▪ Pleading facts then the law follow□ In breach of s ___ something has resulted □ Can plead statutory provision that is relied upon□ Pleading facts and expressing of breach (legal) + facts support the case = permitted▪ Express provision of law to identify the COA is certain ▪ Pleading facts + law = Allowed▪ Facts, not law (eg cases supporting a legal principle – we save this for the submissions) ○ Facts, not conclusions ○ Facture element fo COA only□ Material Facts {MF}: Relevant to establish or prevent establishment of COA or defence ▪ Should state what the nature of the claim is but not state the facts of the claims. ▪ Corporate statues, undefinition, ▪ Facts are anticipated as Defence, facts that are not relevant to that stage of proceeding, facts that are assumed by the law to be true □ In mf there should not be pleading▪ facts that are necessary for the case. ▪ Not just any facts –material facts (and relevant facts)○ Rule 8 - SUBSTANSTIVE REQUIREMENT• Anything which makes a claim non-maintainable (eg performance of contract, release from liability, any relevant statute of limitation, fraud or any illegality); ○ Anything which, if not specifically pleaded, might take the opposite party by surprise (ie no “trial by ambush”)○ Anything which raises issues of fact not arising out of the preceding pleading (eg if a defence seeks to rely on facts not already pleaded in a statement of claim) ○ Any claim for exemplary or aggravated damages together with the facts on which the party relies○ Any claim for interest together with the component of the claim to which the interest relates, the contractual provision or statutory right giving the right to such interest, and the rate of interest and date or dates from which such interest is claimed. ○ Rule 9 - Same matter need to be specifically pleaded• Not point to the specific evidence.  Should with clarity state to the other side what the nature of claim is. □ Should state the facts of the claims□ Particular - give more detail of the mf▪ Statement should give the other parties detail about the claim. ○ MF are factual elements of the COA only, Particulars are sort of the case the D have to meet out in trial, w/out disclosing the manner in which it should be proven. ○ Misrepre▪ Fraud ▪ Breach of Trust▪ Under influence▪ COA need high particulars to be provided, they include. ○ 13(1) - Formal requires of particulars to be given of the matters pleaded. Rule 13: • LLB450 - Civil Procedure Page 2