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A pleading is the name of the formal court documents that the court requires parties to file at the beginning of a case. Typical pleadings include a statement of claim and a defence. These types of documents set out the details of the claim or defence that you are making and the facts that underlay that claim or defence. The purpose of the pleadings is to identify to the court, and to the other parties, the key issues for determination in the case. This article sets out the function of pleadings and what they contain.

What is the Purpose of Pleadings?

Pleadings present all allegations of fact that are relevant to the case and which the parties will need to prove if the matter runs to a trial. Importantly, a party must include in its pleadings any fact or matter which may take the other party by surprise or make the other party’s case not maintainable. 

Further, it is not the role of pleadings to contain all of the evidence which a party will rely on to prove their claim or defence. Pleadings set out the facts and will then govern what evidence is required to prove those facts. 

For example, if you take action against a customer who did not pay you for work that you performed, you would need to plead that:

  • a party requested or hired to do some particular work for a particular fee, and the manner in which that request was made (i.e. orally or in writing);
  • you did the work;
  • you requested or demanded payment (perhaps in the form of an invoice); and
  • the payment has not been forthcoming.

It is not necessary to set out all of the evidence which proves the facts set out in the pleadings. For example, it would not be necessary for you to include in the pleading that other workers can confirm that you did the work or that the person who hired you said “thank you”. The proper place for evidence of that nature is either in an affidavit or the witness box at a trial.

Ultimately, evidence given by way of an affidavit, in person at the trial, or from the relevant documents will go to proving the allegations of fact. Until then, the pleadings define the parameters of the case. 

Who Files What Pleading?

The party making the claim is required to file the first pleading, which sets out the claim. This is usually called a statement of claim or a summons. 

This then entitles the other party to file a defence to that claim, which responds to each fact asserted. Any facts admitted to in the defence are considered to be agreed facts in the proceeding. Those facts not admitted to or disputed in a defence become the issues to be determined in the proceeding.

The Particulars 

Parties must appropriately particularise their allegations, meaning that each of the stated facts must be sufficiently detailed. This is where things get slightly complicated. 

For example, if you want to allege that a contract was formed between two parties, then you must specify:

  • whether the contract was oral or in writing;
  • the date it was formed;
  • who exactly made the agreement; and 
  • what the terms of the agreement were. 

You may even need to go further than this. For example, if the agreement was in writing, you will need to specify whether you are in possession of the document (or a copy of it), and if not, you will need to specify who is in possession of the document. If you do not know where the document is, you will need to explain this sufficiently. This is important so that the court and the other party can properly examine or defend all allegations. 

If the other party thinks that you have not sufficiently particularised your pleading, it may request that you provide further particulars. You can request this by way of a letter, or sometimes, the other party may apply to the court for orders that you provide particulars or amend your pleading to include these particulars. 

Strike Out 

A court can strike out a claim if a:

  • pleading does not contain all of the facts necessary to prove the claim; or
  • notice of defence does not include the facts necessary to raise a proper defence.

Other reasons that a pleading (or part of it) may be struck out are that it contains allegations that are: 

  • unclear; 
  • scandalous; or 
  • irrelevant to the case. 

The court may strike out all or part of a pleading. Where a pleading is partially struck out, the remainder of it may be sufficient for the matter. Suppose that a court strikes out all of the pleading. Usually, it will give the party that prepared it a chance to amend it to raise all necessary matters. However, in some cases, the court may give judgment in favour of the other party.

What Relief Does a Party Seek?

The final part of a pleading is to inform the court and other parties of the relief or remedies sought as part of the claim. This is formally known as the ‘prayer for relief’. It is usually introduced by words such as “the plaintiff claims the following relief…”. 

Returning to the above example regarding taking action against a customer who did not pay you for work that you performed, the relief you may seek includes:

  1. damages in the amount of the agreed fee for work;
  2. interest on the fees owing;
  3. your court costs and legal fees; and
  4. such other order as the court deems fit.  

Key Takeaways

Pleadings identify the key issues for determination and do not need to contain all of the evidence that a party will rely on to prove their claim or defence. Instead, they only need to set out the facts. Additionally, it is important to ensure that you sufficiently particularise pleading. This will avoid the possibility of the court striking out all or part of the pleading. If you need assistance drafting a pleading or have any questions about your dispute, contact LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page. 

Frequently Asked Questions

What is the purpose of pleadings?

Pleadings should set out the facts and include any matter which may take the other party by surprise or make their case not maintainable. Pleadings should not contain all of the evidence which a party will rely on to prove their claim or defence.

When can pleadings be struck out?

If they do not contain all of the facts necessary to prove the claim, then the court can strike it out. A pleading can also be completely or partially struck out if it contains allegations that are unclear, scandalous or irrelevant to the case.

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