welcome to laws 1307 civil procedure this is topic five pleading and summary disposition I'm Andrea Turner in topic five we will be considering pleading and summary disposition pleadings are documents exchanged between two parties to litigation in which they set out the material facts they tend 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 as to why the claim or defense ought not to be struck out or judgment entered against them the circumstances in which such summary disposal may occur are not confined solely to the situation of failure to comply with the rules concerning filing of documents or other procedural stipulations but may involve a form of Merit based determination either of the action or some material part of it the objectives for this week are set out under two headings with respect to pleadings you will understand the role of pleadings in 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 understand the processes whereby the parties to civil legal proceedings May apply for summary disposal of an action and finally to describe the steps required to be complied with under the ucpr rules and the related legislation in order to in order to affect the summary disposal of a proceeding let's start with pleadings leadings themselves as serve several 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 a diagram in our study guide at page five which I've called the pleadings pathway the diagram explains the pleading process looking generally at the diagram before we go through each box briefly most litigation involves the three boxes shaded light gray and does not involve cross claims the originating process is an application or a claim filed by an applicant or plaintiff 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 then ultimately there is a reply which is an optional plating file by the plaintiff or applicant which addresses the issues raised in the defense a apart from the first three key boxes there's all these different types of pleadings shaded in blue which are not required in a particular action but may arise optionally there may be a cross claim against a plaintive for an applicant or a third party which is filed by the defendant or the respondent that then may lead to a cross defense file by the plaintiff cross defendant or third party cross defendant then there is a cross reply which is the optional feed pleading filed by a cross claimant there may be further cross claim filed by a cross defendant against an existing or new party a further cross defense a further reply it's also common in this process for parties to seek and obtain leave to amend their pleadings as more information comes to light the most important pleading rule is 149 which is called statements and pleadings Rule 149 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 subject to rule 156 the pleading must State 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 the ACT 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 then what is a material fact a party must plead all 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 pleaded 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 gr facts or grounds of claim must be clearly pleaded as Alternatives according to rule 154 you might State a particular line of argument and then state in the alternative followed by a further line of argument which contradicts the first line of argument facts in the new nature of evidence should not be pleaded a party May however State a conclusion of law if the material facts in support of the conclusion are also stated see rule 1492 parties relying on a statutory cause of action or defense must identify the specific provision in their pleading ucpr 1491 there are numerous miscellaneous pleading rules set out in your study guide which you must follow in any pleadings that you create there are formal requirements for pleading set out in rule 146 146 reads ucpr 146 formal requirements one a pleading must a state the number of the proceeding and B State the description of the pleading and C be filed by the state but be filed and state the date on which it is filed and D be signed by the solicitor for the party filing it or if the party appears or defends in person that party and E be consecutively numbered on each page and F be divided in consecutively numbered paragraphs and if necessary subparagraphs each containing as far as practicable a separate allegation and G if it is settled by council state the council's name 1462 in addition a pleading other than a reply must have have on it a notice to the party on whom the pleading is served under rule 164 informing the party about the time for serving pleadings in response under the rule 164 let's now change direction and consider the relevance of plain English drafting on your pleadings the first thing to be aware of is the collection of legal fossils which will appear in your study guide at page 11 the rules themselves don't prescribe any particular written style but there is a legal e or special language for pleadings which the modern movement for plain English drafting has really sought to address the redrafting of court forms into Modern English has also assisted this process but generally you should avoid those legal fossils in the table we've got one column being the legal fossil that you should avoid and in the other column sets out the alternative I won't go through all of them because you can look at them yourself but for example for above mentioned the alternative is simply to admit it all together or recast it and put it in a different way admitting it's probably the B probably the best solution hearing after or hearing before can be admitted there are lots of examples of legal fossils and other types of surplus words and phrases which should be looked at and avoided for example negligence on the part of the said defendant you should say the defendant's negligence another example is at that time and on that date replace with at the same time for the duration of can simply be during try to achieve clearer shorter passages remember that one of the objectives of pleadings is brevity and Clarity further principles of plain English drafting to watch out for would include the use the use of active not passive verbs the defendant was chasing the plaintiff rather than the plaintiff was being chased by the defendant the subject defendant of an active verb acts whereas the subject plaintiff of a passive verb does not Define terms if they have a specific and necessary role for example in complicated matters defining all the relevant terms in the dictionary section at the beginning of the pleading may make the pleading much more readable and comprehendable don't use discriminatory language make sure you put in headings to signpost longer pleadings and vertical lists when it's appropriate to break up the detailed information in terms of drafting generally or in writing generally I suggest you have a look at William Strunk on the elements of style another useful book is the Commonwealth style guide there's also numerous pleadings books Let's return back to the pleadings though the first or primary pleading is a claim and it must be in the approved form which is form 22 form 22 incorporates the statement of claim according to rule 221 the first part of form 22 is the heading which is really an introductory statement consistent with form 16 it identifies the parties their relationship with the dispute for example if they are the plaintiff or defendant if a party is a company the statement need only identify that at all material times they were Incorporated and 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 responding to a defense 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 and55 there are a whole host of specific matters that must be pleaded set out in rule 150 for example a breach of contract or trust and every type of damage it's claimed make sure that you thoroughly work your way through 150 because there's quite a few of those particular matters that have to be specifically pleated you may find rule 150 will be helpful in your assessment a claim for general relief should also be pleaded under rule6 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 and the interest rate or rates claimed except if the party is claiming at a rate or rate specified in a practice Direction the method of calculation of that interest may arise under the terms of a particular contract but there are default rates of interest in various practice directions which will um which is included in the study guide in terms of the defense the defendant must plead in the defense all facts showing that the plaintiff's claim is not maintainable and all grounds of the defense which if not pleaded may surprise the plaintiff or which raise matters of fact not arising out of the statement of claim have a look at rule 151 and 4 that's rule 150 subsection 1 and subsection 4 the defense is set out using form 17 a defense and counter claim uses form 18 the counter claim is a claim back from the defendant against the plaintiff the defendant pleads to each allegation in the statement of claim the rules 165 subsection 1 and 166 subsection 4 to 6 ucpr 165 answering pleadings that says subsection one a party May in response to a pleading plead a denial a non-admission an 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 or you can say something is not admitted or you can admit it or you can just mention another matter that is really not a response at all well 166 talks about denial and non-admission and it's very important rule because there are some consequences that arise in making these choices between denials and non- admissions so 166 denials and non- admissions says one an allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead the pleading unless a the allegation is denied or stated not to be admitted by the opposing party in opposite party in a pleading or B rule 168 applies you do have to respond or you'll be taken to have admitted something a party May plan a non-admission only if the party has made inquiries to find out whether the allegation is true or not and the inquiries for the allegation are reasonable having regard to the time limited for filing and of the defense or other pleading in which the denial or non-admission of the allegation is contained and that the party remains uncertain as to the truth or falsity of the allegation A party's denial or non-admission of an allegation a fact must be accompanied by a direct explanation for the party's belief that the allegation is untrue or cannot be admitted if a party's denial or non-admission of an allegation does not comply with the rule then the party is taken to have admitted the allegation a party making an admission remains obliged to make further inquiries and 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 in other words if they subsequently find out the answers to whether something is true or false they need to amend their pleading a 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 pleaded the denial will attach to the specific facts that are intended to be denied a denial may be expressed but it can also be implied it is also possible to plead that an allegation is not admitted 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 so rule 166 subsection 3 an explanation for the denial or non-admission is required or by default they're taken to ad have admitted it an ambiguous plea may be deemed to be an admission see Thorin Holdsworth 1876 you should also avoid negative pregnants this would be where a plaintiff pleads a had no Authority which the defense denies it results in the defense pleading a had Authority due to the double negative in such situations the defense may be ordered to provide particulars C Pinson and Lloyd's National provincial Forum Bank limited 19412 Kings bench 72 according to 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 avoid the allegation this is known as confession and avoidance for example you might admit that there is a contract but allege further facts that the contract is illegal and therefore in applicable a void so you say there's a contract that's the admission or confession but you allege on the fact it's illegal aoid so that's the avoidance the defendant Bears the earance of proof on the latter facts see Cameron and Troy 2001 the next issue to consider is a counter claim using form 18 the counter claim is an action in its own right bought by the defendant against the plaintiff and it enables The Joint trial of the two claims the claim and counter claim the the defendant follows the same pleading requirements as per the statement of claim as senior rules set 177 178 and 182 a reply is needed should the plaintiff wish to plead to specific allegations contained in the defense it's not mandatory have a look at rules 165 and 168 the reply can only be used to meet the defense it's not to raise a new cause of action nor allege any matter which is inconsistent with the statement of claim see rule 154 the plaintiff must defend any counter claim otherwise the defendant May obtain a default judgment on the counter claim a defendant may make a claim against a plaintiff by way of set off a set off is essentially a defense whereas a counter claim is an independent cause of action and have a look at rule 173 we'll now look at particulars the rules specify certain former allegations in respect to which particulars of material facts must be given including such matters as misrepresentation fraud breach of trust willful default and undue influence these are all set out in rules 150 155 157 and 159 the objective is to help clarify the case to be met uh clarify the case to be met the evidence which is needed and overall to reduce the requirement for disclosure of documents pleadings Define the issues in general terms particulars control the generality of 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 surprise pleadings in particulars are not strictly enforced however an Evidence is admitted if the parties have ignored inadequacies in their pleadings or if to do so is not likely to create surprise or Injustice to the other party pleadings is an art it's not an exact science the detailed evidential procedures in chapter 11 and part 8 um exchange or correspondence instead of affidavit evidence must be complied with before bringing an application for an order for particulars assort see rules 443 a cost sanction may be imposed on a party not providing sufficient particulars and that's ucpr 161 so it's advisable to take care when drafting your pleadings and to fully particularize what you're alleging so so that you can avoid any consequences of orders for further and better particulars which just adds adds 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 is otherwise objectionable in some way a court May order a stay or dismiss a proceeding or enter judgment as a consequence of striking out of pleading have a look at rules 162 and 171 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 problem plaintiffs can display all sorts of characteristics for example they commence proceedings which are excessive vexatious or an abusive 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 don't 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 fail to pay costs after having been ordered to do so what does a court do in response to these Pro problem plaintiffs essentially the responses to a wayward plaintiff come down to three types declarations the proceedings of vexa or an abusive process dismissal for want of prosecution default and summary judgments there is always the prospect of adverse cost orders 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 there are three types of problems in defending proceedings oh sorry there's 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 so avoiding service ignoring court orders and directions not appearing not participating or engaging with ADR and refusing 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 want of prosecution of cross claims summary dismissal of cross claims and of course cost orders let's now look at summary disposition in this section we'll be looking at procedures which are designed to cut short the standard litigation workload which we've outlined earlier these procedures can avoid abusive process through spurious or improper claims or defenses they are procedures for summary judgment default judgment and the inherent powers of the court to stay proceedings as an abusive process let's start by looking at default judgment this generally occurs in instances firstly whether there's been a failure to make a step required by the rules or whether there's been a failure to comply with a 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 ucpri chapter 9 part 1 especially rules 280 to 281 the judgment is obtained as of right by filing an Affidavit of service and a request for judgment the plaintiff must prove service of a claim on the defendant in default before judgment may be given under this division against the defendant a default judgment may be entered if the plaintiff's claim for damages that are liquidated demand or debt under rule 283 these are some certain and they are easily calculated if the claim is for damages interlocutory judgment is entered for the plaintiff which means that there will need to be a further hearing to assess the amount of Damages because it's not a certain sum such as a debt a less common situation is default by the plaintiff enabling a defendant to apply for an order dismissing the proceedings for want of prosecution under rules 280 want of prosecution is less common these days because of the Advent of case management and judges controlling the process of litigation 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 attaching to the affidavit a copy of the draft defense proposed to be delivered the affidavit should include an explanation for the failure to appear in the first place and an explanation for any delay in applying to set aside the Judgment generally a tidy defendant will be penalized to the extent of having to pay the plaintiff's cost thrown away on obtaining the default judgment and the plaintiff's cost on thec ation to set it aside even though on that application the defendant May ultimately be 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 prospects of no real Prospect of a defense or there or there is a defense to a baseless claim for example expir VI limitation period evidence is given by affidavit unless a Court gives leaves 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 cost may be awarded under 299 it's 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 offense of any defendant or for a proceeding started 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 leave of the court or consent from the other parties under rule 305 a defendant May discontinue a counter claim or withdraw part of it before being served on the plaintiff's answer to a counter claim and only with the Court's leave or consent of the other parties after being served with the plaintiff's answer to the counter claim 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 costs penalty the effect of discontinuance is not the same as a judgment nor does does it operate as a defense there is no res judicata so the plaintiff May Institute fresh proceedings for the same cause of action assuming it's within the limitation period discontinuance is affected by filing when no filing a notice of discontinuance or withdrawal form 27 now let's consider staying or dismissing a proceeding as an abusive process abusive process is a misuse of Court's procedure which would be manifestly unfair to a party to litigate before it or would be otherwi or would otherwise bring the administration of justice into disrepute amongst right thing among among right thinking people and that's in Hunter and chief Constable of the West Midlands police it's a 1982 case under rule 15 if the registr considers an originating process appears to be an abusive process of the c um process of the court or frivolous or vexatious the regist May refer the originating process to the court before issuing it the court may direct the regist to issue the originating process or refuse to issue the originating process without leave courts May exercise an inherent jurisdiction to stay proceedings as an abuse of process where there has been considerable delay in commencing or the conduct of the proceedings and we have a case of batistatos and Roads Traffic Authority of New South Wales which is a 2006 case let's move on now to look look at the issue of vexatious proceedings vexatious proceedings are those which are intended to harass or annoy cause delay or taken for some other ulterior purpose or lack reasonable grounds the vexatious proceedings act 2005 Queensland at section six enables an order declaring a party a vexatious litigant thereby restricting them quite severely in their ability to commence or to continue with litigation turning now to the question of Interest there are two types of interest interest up to the judgment and interest after a money order is made looking firstly an interest up to judgment in the absence of a right to interest in the Civil proceedings act 2011 section 58 provides a discretion in the court to award interest this is to compensate the plaintiff who is being kept out of their money by a defendant you can see this is set out in rule 2 283 subsection 5 to subsection 9 the second type of interest is interest which arises after a money order is being made the Civil procedings act section 59 provides interest is payable from the date of a money order on the money order debt unless the court otherwise orders in summary topic five has focused on pleadings and summary disposition pleadings are documents exchanged between the parties to litigation in which they set out material facts they intend to allege at the hearing of the action pleadings 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 proceeding summary disposition has been discussed namely summary judgment and default judgment both of which are procedures lead to an early resolution of a dispute topic five also discussed how actions are continued stays interest and vexatious litigant in the next topic we'll be examining disclosure until then bye for now