A judge’s Viewpoint: the Role of Pleading The Hon Justice Brian Tamberlin



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A Judge’s Viewpoint: the Role of Pleading


The Hon Justice Brian Tamberlin

updated by the Hon Justice Steven Rares


Presented by:

The Hon Justice Steven Rares, Federal Court of Australia, and

The Hon Justice Richard White, Supreme Court of New South Wales


The 2012 Judges’ Series

Practical Litigation in the Supreme Court and the Federal Court

(Wednesday 16 June 2012)




Legal Principles - Pleadings


The new Federal Court Rules 2011 (Cth) commenced on 1 August 2011. The rules relating to pleadings and particulars are set out in Parts 15 and 16 of the Federal Court Rules.
The new rules on pleadings accommodate the objectives of Pt VB of the Federal Court of Australia Act 1976 (Cth). One innovation is in r 16.02(1)(c). This requires a pleading to identify the issues that the party wants the Court to resolve. Often in the past, prolix pleadings have obscured, not illuminated, the real issues in the litigation.
The basic requirement is that a pleading must comprise of a statement, in summary form, of the material facts on which the party relies, but not the evidence by which those facts are to be proved.1
A pleading must be as brief as the nature of the case allows,2 however, it must also be framed as precisely as possible on the basis of the available material or it may not be possible for the other side to properly plead their case in response.3 In Woodbridge Foam Corporation v AFCO Automotive Foam Components Pty Ltd,4 Finkelstein J rejected the suggestion that the Federal Court nowadays adopts a more relaxed attitude to the rules relating to pleadings to encourage the parties to get on with their dispute and resolve any problems that may arise between themselves. The Judge said that a “sloppy” approach to pleadings will not be accepted if the consequence is to undermine or compromise the principal function of informing the other side of the case sought to be made out.
It may be that the jurisprudence around r 16.02(1) will develop to synthesise pleadings and focus them more on issues. The requirements of r 16.02(1)(d) to state the material facts on which the party relies to give the opposing party fair notice of the case, to be made against it, reflect the judicature system of fact pleading. Under that system a pleader must assert or identify a legal category of action or suit that the facts asserted might illustrate, involve or demonstrate on which the particular relief claimed is based or to which it is relevant.5 What r 16.02(1) now requires goes further. First, as I have noted, the pleading must state the material facts;6 secondly, it must state the provisions of any statute relied on,7 thirdly, it must identify the issues that the party wants to Court to resolve8 and last it must state the specific relief sought or claimed.9
A pleading must disclose a reasonable cause of action or defence against the other party and state all material facts which are necessary to establish that cause of action and the relief sought.10 The expression “material facts” is not synonymous with all the circumstances. “Material facts” are those essential facts which are relied on as establishing all the essential elements of the cause of action.11 These facts must be pleaded with a sufficient degree of specificity to convey to the other party the case that party has to meet by evidence and submissions and it must also be apparent on the face of the document that the facts pleaded, if proved, are sufficient to establish the cause of action relied on.12 Under r 16.21, a pleading which discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay or is otherwise an abuse of process, may be struck out in whole or in part.




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