Pleadings, Joinder and Collective Redress, Exercises of Law

Download Pleadings, Joinder and Collective Redress and more Exercises Law in PDF only on Docsity! Seminar 2: Pleadings, Joinder and Collective Redress Pleadings: - pleadings are formal written statement of the plaintiff’s claim and the defendants defence - they contain the material facts the parties intend to allege at th trial and the issues in dispute are defined in the pleadings. Material facts are the things that go to the facts of the case - pleadings are important as it outlines immediately what the issues are between the parties Example: Ø Contract: Plead there was a contract, plead the terms of the contract that are in issue, plead there was a breach, plead what it is that you seek. - pleadings limit the scope of particulars, discovery of documents and interrogatories - they show what the facts are in dispute and what issues the court will have to determine. Rule 14.3 Defence 1) the defendant has 28 days after service to file a defence 2) if before the defendant files a defence, a notice of motion for summary judgment under rule 13.1 is served on the defendant, and the court does not on that motion dispose of all the claims for relief against the defendant, then court may fix a time for the D to file a defence. Rule 14.4 Reply 1) In proceedings in the Supreme Court or the District Court, a plaintiff may file a reply to a defence. 2) In proceedings in the Local Court, a plaintiff may file a reply to a defence only by leave of the Court. 3) The time limited for the plaintiff to file a reply is 14 days after service of the defence on the plaintiff. Rule 14.5 Further Pleadings 1) Except by leave of the court, a party to proceedings may not file any pleading subsequent to a reply. 2) The time limited for a party to seek leave to file a pleading subsequent to a reply ( "the further pleading" ) is 14 days after service on the party of the pleading to which further pleading responds. Rule 14.7 Pleadings to contain facts, not evidence A party’s pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved. Rule 14.8 Pleadings to be brief A pleading must be as brief as the nature of the case allows. Rule 14.9 References in pleadings to documents and spoken words. If any documents or spoken words are referred to in a pleading: a) the effect of the document or spoken words must, so far as material, be stated, and b) the precise terms of the document or spoken words must not be stated, except so far as those terms are themselves material. Rule 14.10 Certain facts need not be pleaded. A party need not plead a fact if: a) the fact is presumed by law to be true, or b) the burden of disproving the fact lies on the opposite party, except so far as may be necessary to meet a specific denial of that fact by OP’s pleading. Cases: Rule 14.12 Pleading of facts in short form in certain money claims. 1) Subject to this rule, if the plaintiff claims money payable by the defendant to the plaintiff for any of the following: a) goods sold and delivered by the plaintiff to the defendant, b) goods bargained and sold by the plaintiff to the defendant, c) work done or materials provided by the plaintiff for the defendant at the defendant’s request, d) money lent by the plaintiff to the defendant, e) money paid by the plaintiff for the defendant at the defendant’s request, f) money had and received by the defendant for the plaintiff’s use, g) interest on money due from the defendant to the plaintiff, and forborne at interest by the plaintiff at the defendant’s request, Al-Medenni v Mars UK Limited [2005] EWCA Civ 173 [21] (Dyson LJ): - “It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. “ - “The function of the judge is adjudicate on those issues alone.” Banque Commerciale SA En Liq. V Akhil Holdings Ltd (1990) 169 CLR 279 - akhil sued Banque and two other defendants for breach of trust for selling shares without Akhils authority - all defendants pleaded that the action was statute-barred - in reply to two of the defendants, the plaintiff pleaded that bar did not apply as the proceeding was in respect of a fraudulent breach of trust - no reply was made to Banque and it was not involved in the trial akhil was unsuccessful at trial but successful on appeal where the Court found the bank to be a party to fraud. Mason CJ and Gaudron J - the function of pleadings is to state with sufficient clarity the case that must be met - in this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issue for decision - Akhil was only entitled to relief available on the pleadings The Function of pleadings: Pilato v Metro Water Sewerage 7 Brainage Board (1959) - pleadings define the issues in general terms - Particulars control the generality of the pleadings and restrict the evidence to be led b y the parties at the trial and give the other party such information as may enable him to know what case he will be met with at the trial and prevent surprise. - Evidence enables the tribunal, within the ambit of the general definition of the issues…to decide where the truth lies. Phillips v Phillips (1878) 4 QBD 127 - The defendants were in possession of Picton Castle and were receiving funds from the possession. The plaintiff claimed entitlement on the basis of ancestry. - The pleading included the following: Ø “Under and by virtue of certain deeds, assurances and documents in the possession of and control of the defendants, the plaintiff is entitled to possession of the said premises.” - Court of Appeal held that pleading did not contain allegata probanda. - The pleading was drafting as “fishing statement” and was not precise.