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Pleading without lamentation – Series One
The role of pleadings is to define the issues in the proceedings and to ensure that the basic requirement of procedural fairness is afforded to a party. That is, that a party has the opportunity to meet an identified case against them.
Ipp JA in Ingot Captial Investments Pty Limited v Macquarie Equity Capital Markets Limited [2008] NSWCA 206, summarised the relevant principles at [424]:
“ [424] The following propositions may be extracted from these authorities:
(a) The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to a basic requirement of procedural fairness.
(b) Apart from cases where the parties choose to disregard the pleadings and to fight the case on additional issues chosen at the trial, the relief that may be granted to a party must be founded on the pleadings.
(c) It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground an inference that the parties have chosen a different basis to the pleaded issues for the determination of their respective rights and liabilities
(d) Acquiescence giving rise to a departure from the pleadings may arise from a failure to object to evidence that raises fresh issues – it is in this sense that “cases are determined on the evidence, not the pleadings”.
(e) While cases are to be decided upon a basis that embraces the “real controversy” between the parties, the real controversy has to be determined in accordance with the principles stated.”
We shall look at each of these propositions in turn.
Basic requirement of procedural fairness
It is a matter of fairness that you know the case with sufficient clarity in order to understand the case you must meet.
In Dare v Pulham the High Court said (at 664):
Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff’s claim in aid of the defendant’s right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings. (footnote omitted)
Courts have also described this as ensuring that each party ‘knows the case made against it’: Bergin J in Brambles Australia Ltd v Tatale Pty Ltd [2006] NSWSC 204.
Banque Commerciale SA v Akhil Holding Ltd [1990] HCA 11 was a case where the Bank argued that a finding of fraud against it was not open on the pleadings and that, but for that finding; its plea that the action was statute-barred must result in judgment in its favour.
Brennan J at [1], citing Jessel M.R. who stated:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules of [UK equivalent] was to prevent the issue being enlarged, which would prevent either party from known when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to dimmish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
His Honour went on to say,
“When pleadings bring the parties to the issue, the court’s function is to determine that issue and to grant relief founded on the pleadings unless the parties are allowed to alter the issues at the trial without amendment of the pleadings.”
Further, the non-appearance of a defendant at trial does not allow the plaintiff a free rein to amend the pleadings to raise issues of which the absent defendant has had no notice or obtain relief not founded on the pleadings: per Brennan J [2]
Choosing to disregard the pleadings
In Banque Commerciale SA (In Liq) v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279 Mason CJ and Gaudron J said at (286-287):
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 issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.
Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference.
Sometimes pleadings are prepared when the bare minimum of documents are available, or they have been prepared hastily in order to avoid falling foul of a bar under statute. There are times when the parties have not turned its minds to the pleadings, even after discovery, and may only have started considering them in preparation for trial.
In these circumstances, the parties can agree to a list of issues to be addressed in the case, thereby disregarding the pleadings altogether. This generally works if the list can be agreed to, but often there is disagreement about what constitutes the controversy between the parties.
Where possible, pleadings should be reviewed by Counsel who will be ultimately briefed to appear at trial. This review should be conducted as early as possible, and at the very least after discovery, after witness statements (if any), and well before the trial.
In a clear case, acquiescence by one party in the course adopted by the other
It must be a clear case where one party’s acquiescence to a course of action adopted by the other party gives rise to the inference that the parties have chosen to address issues that are different from those in the pleading
In addition to taking care to object to evidence (which will be addressed below), attention should be given to a party’s trial opening. There should be objection taken on any opening that departs from the pleaded case. Accepting an opening without objection may be an acquiescence to the case been advanced on the issues that were opened with, rather than those pleaded.
Failing to object to evidence that raises fresh issues
This is important because of what Dawson J (at 293) quoted the following statement by Isaacs and Rich JJ in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liq) [1916] HCA 81; (1916) 22 CLR 490 at 517:
But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.
And observed: (at 296-297):
But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. Special procedures apart, cases are determined on the evidence, not the pleadings.
If the evidence is allowed in, then it is open for the Court to allow the parties to seek determination of the issue that the fresh evidence gives rise to.
Pleadings confine and define the issues for the parties to contend with and for the court to determine. They are crucial in ensuring the fairness of a trial and establishing boundaries on the evidence to be considered. This is important for effectively managing the resources allocated to dealing with the dispute.
Practitioners are advised to engage experienced Counsel to periodically review pleadings and the different stages in the course of a proceeding. This helps ensure that the pleadings accurately encompass the true dispute between the parties.
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