THE BAR ASSOCIATION OF QUEENSLAND
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Issue 98: December 2024
About Us

The graduands of the Bar Association’s Bar Practice Course #82 were treated to an entertaining and erudite address from Justice John Bond on the evening of completion of the course. His Honour provided a very practical and useful perspective to those about to embark on a career at the Bar, from someone whose career has spanned over 40 years in all parts of the legal profession. The address, entitled “Sam and Ralph”, was warmly received (you will have to read it to find out the genesis of the title). His Honour provided useful guidance and many tips for those about to commence practice at the Bar, but also reminded more experienced practitioners of many integral aspects of practice, including the high importance of courteous professionalism. His Honour’s observations will repay frequent reading.

We are, you and I, at opposite ends of the spectrum of a career in the law.

You sit before me at the start of your journeys. 

On the other hand, I have done 2 years’ articles; a year as a solicitor; a year as an associate; another year as a solicitor; then at the bar I was a junior for 12 years, a silk for 16, and I have now been a judge for almost 10 years. 

So I stand before you, not that far from the end of my career in the law. 

I’m happy in the service.  I love what I do.  I find my judicial role to be both challenging and fulfilling.  It is one of the things which gives meaning to my life. 

But, next week, I turn 64.  Only 6 more years, and I face compulsory retirement.  I’m not looking forward to it.   

What then can I offer you from my present comparatively ancient vantage point? 

I gave some consideration to calling this presentation “Stupid things I have done, and how you can avoid them.”  There certainly would have been plenty to talk about on that front.  Many of your lecturers and others here present have known me long enough to attest to that conclusion.  That presentation would have been entertaining for you, but I think too embarrassing for me. 

Instead, what I think I’ll try to do is to encapsulate a miscellany of what I see as the most important lessons I have learned from my career in the law.  Not all of them will resonate with all of you.  But my hope is that some of them will and, if they do, you remember them somewhere down the track and use them for your benefit. 

Let me start by explaining why I named this presentation “Sam and Ralph”.

Sam Sheepdog and Ralph Wolf were characters in Warner Bros’ Looney Tunes and Merrie Melodies cartoons when I was a kid.  The cartoons are still being shown and, at least according to Wikipedia, still being produced.

Sam and Ralph seem to be good friends.  Each morning, they meet up on their way to work, apparently chatting amiably: “G’day Sam”, “G’day Ralph”.  They clock in at work and go about the business of the day.  Sam’s job is to look after his flock of sheep. Ralph’s is to get the flock of sheep.

After they both clock on it all kicks off.  Ralph engages in various dastardly plans, often involving Acme Corporation products just like Wile E Coyote, with a view to getting his hands on the sheep.  His plans, comically bizarre, invariably end in failure and usually with Sam knocking him out with a single punch.   

The beauty of the cartoon is that at the end of the day, when the stop-work whistle blows, and even if Sam’s huge fist is about to connect with Ralph’s head, Sam and Ralph immediately stop what they are doing.  They go and clock out and head home, again chatting amiably.  The night shift, Fred and George, clocks in.  And the next day it starts all over again.

… it is a pretty decent metaphor for what barristers do and how they should do it

Although Sam and Ralph are shown as blue-collar workers just doing their jobs, I’ve always thought it is a pretty decent metaphor for what barristers do and how they should do it. 

Whilst criminal trials do not descend into actual combat, nevertheless counsel for the Crown and counsel for the accused are real adversaries.  It’s no longer the case that the accused’s life is at stake, but the accused’s liberty and reputation may well be.  The same may be said of civil process.  Counsel for the opposing parties are real adversaries, conducting a real fight, where the stakes are often high. 

But when the fight is over, it’s over. 

Let me share a story.  When I was in practice, Bob Holt and I were silks who each developed reputations as leading silks in building and construction disputes, including arbitrations.  Bob is almost 2 metres tall.  I am more sensibly sized.  We were often opposed to each other.  He tended to represent government and institutional clients, and I tended to represent claimant contractors.  One day, when my wife was the president of the Institute of Arbitrators, someone approached her at a function and surreptitiously asked her whether it was true that Bob and I really hated each other, as he had heard.  Rowena thought the question was hilarious.  When she later told me, I couldn’t wait to get back to chambers to give Bob a call.  The truth was the opposite: we were mates.  And when we weren’t opposed to each other, we often used each other as sounding boards for various legal propositions or constructions of contractual clauses.

And that is the first lesson.  Although you and your opponent will be adversaries engaged in civilised combat on behalf of clients and often for high stakes, never let it get personal as between the two of you.  Often, you will actually be friends with your opponent.   But even if you are not friends, you should try to emulate the conduct of Sam and Ralph.  When the fight is over, it’s over. At least for that day.

Of course, comedic combat metaphors aren’t the only appropriate metaphor for what you will do and how you should do it.  There are many metaphors deriving from competitive sports, especially contact sports.  Let me develop another one.

When I was at school I played rugby.  Badly.  For a few years after school I kept playing, still badly.  My friend Les, however, played rugby well both at school and for a few years afterwards.  He was a breakaway.  One day he was telling me about a big match he had played in where he had put his hand down for balance as he packed in at the side of a scrum.  The opposition prop took the opportunity to stand on his hand.  I thought that was pretty poor conduct, but Les reacted more calmly telling me “Bondy, you get a bit of niggle in a big game”.  He just ignored the incident and played on.

That’s my second lesson:  you get a bit of niggle in a big game, but don’t let it distract you.  Play on.

In your case the big game is the civilised combat in which you are engaged on behalf of your clients.  There are rules which govern how the game should be played, how that fight should be fought.  But apart from the strict rules, there is a spirit in which the game should be fought.  You should behave professionally and with courtesy.  To continue the sporting metaphor, you should play the ball, not the person.  There should be no arguments ad hominem where you attack the character, motive, or some other attribute of the person making an argument rather than addressing the substance of the argument itself.

But we don’t live in a perfect world.  It’s a human system.  The people within it are imperfect.  Things can get very tense.  Tense for the client, tense for you, tense for your opponent, and even tense for the judge.  Sometimes tempers will flare, intemperate things will be said, perhaps by your opponent, perhaps even by the judge.  Sometimes you will be the culprit. 

It’s a big game, and that means you’ll get a bit of niggle.

The point of saying this to you is so you can recognise that the poor behaviour you might encounter is often only a reflection of the stress of the fight you are in, possibly even of the stress of some other fight about which you know nothing.  If you understand that, you will find it easier to cope with the niggle when it happens.  In most situations what you should do is to try to understand where the behaviour is coming from then simply suck it up and move on.  And if you are the one who is at fault, you might want to consider recognising your poor behaviour, apologising when appropriate, but then forgiving yourself and again, moving on.

One tip I can give you.  When an opponent’s behaviour has upset you, go back to your chambers and debrief with your colleagues, especially your more senior colleagues.  Get it off your chest.  Curse your perfidious opponent to your heart’s content.  Perhaps your colleagues will commiserate with you about their own bad experiences with that person.  Perhaps they might even give you a perspective on what happened, which conveys to you that it wasn’t as bad as you thought.  Or even that your assessment of the behaviour about which you were complaining might have been wrong and you are overreacting.  You’ll find debriefing with your colleagues, especially more experienced colleagues, helps. 

And if it’s a judge’s behaviour that has upset you, do the same thing.  Just don’t do it in public or in front of your client: that’s not just unprofessional, it’s probably a contempt.     

Try to be part of the solution

On the subject of dealing with judges, my third lesson to you is an advocacy tip.  “If you are not part of the solution, you are part of the problem.  Try to be part of the solution.”

I must be a slow learner because I did not really come to understand this until I had been a silk for a couple of years.  I was brought in as part of the team for one of two defendants involved in a massive case which Chesterman J was managing towards trial.  Our team comprised Pat Keane QC and John Sheahan QC and a host of juniors.  I was brought in as the third and most junior silk to perform a specific role.  The proceeding eventually ran all the way to judgment, the trial taking of the order of 100 days.  It was a really hard gig.

My anecdote however concerns an interlocutory skirmish which I was briefed to run against the plaintiff a few months before the trial was scheduled to start.  I can’t remember what remedy we were seeking but it involved me making a mountain out of a molehill concerning some aspect of what we said was the plaintiff’s bad behaviour in the progression of some interlocutory steps.  In the grand scheme of things what I was complaining about really didn’t matter.  But what I do remember is that after he had heard my diatribe, Chesterman gave me a pained look and said “Mr Bond, I’m just trying to get this thing ready for trial.” 

And that brought it home for me.  He was just trying to do a job, namely, to bring the squabbling parties to the trial by the then scheduled trial date.  One way or the other he was going to do that, come hell or high water.  The way I had framed the application was to create an obstacle.  It was part of the problem.  If I wanted to get anything out of the application, I should have framed it in such a way that the relief I sought was part of the solution to his problem. I had not, so I did not achieve what I wanted.

… you get more flies with honey than you do with vinegar

How should this inform what you do?  Well, its straightforward.  Judges are just people like you, albeit with 20 or 30 years more experience.  On any particular day in which you appear before a judge, she or he will have a job to do, a decision to make, a solution to find.  Put yourself in the judge’s shoes.  You want to have a clear appreciation as to what that day’s problem is for the judge.  Then you want to frame your behaviour and your submissions in a way which the judge will see as assisting them, that is in a way which will be seen by the judge to be part of the solution to the judge’s problem of the day.  Obviously, you want to assist in a particular way so that the solution favours your client.  But you will find that you get more flies with honey than you do with vinegar.

While I’m on this topic, can I identify for you two aspects of the judicial role, the difficulties of which I at least had completely underestimated when I was a barrister. 

First, it is quite difficult to get on top of an unfamiliar factual framework quickly.  I found this out when I was a judge in the trial division and started sitting in applications.  You get a 10-page submission from one side.  A similar submission from the other side.  Possibly also a reply submission.  You read them over the course of, say, 20 minutes.  It’s the first time you’ve ever dealt with these parties or the details of their particular fight, yet as soon as you have finished reading, you are expected to engage sensibly with two advocates who have been living with the problem for days and are completely immersed in its detail. And in the ideal situation, you are trying to give an ex tempore judgment.  All I can tell you is that it’s a lot harder than it looks.  So, if you want to be part of the solution, recognise that difficulty and find a way to simplify the complexity such that your proposed outcome is the more obvious solution.

Second, fact finding is hard.  That’s why when the opportunity came for me to change to appellate work I jumped at it.  Trial judges do not get some magic amulet which enables them to determine whether a witness is credible and reliable and should be believed over another witness.  Demeanour has some but relatively minor relevance, but what usually gives greater assistance is the identification of consistency or inconsistency between a witness’s testimony and other evidence which is likely to be reliable e.g. contemporaneous texts, emails or correspondence; objectively established facts; facts which are not in issue; or the evidence of independent or disinterested witnesses.  If you want to be part of the solution, give the judge the ammunition to make the factual findings you want.   Do not do what sometimes I have seen in transcripts of a multi-day trials in the District Court, where some incompetent counsel merely advances words to the effect “well having seen the witnesses your Honour will be in a position to determine that my witnesses should be accepted” and then moves on to why they should win if their witnesses are accepted.   That is hopelessly inadequate. 

Can I now move on to a couple of other things I want to say to you about how to behave in the conduct of your work.

You will have been taken to various aspects of the Barristers’ Conduct Rules at various times during the course you have just completed.  I don’t want to repeat any of that.  But I do want to say that courteous professionalism is not something to which you should aspire merely because it is required of you by those rules.  My next lesson to you is this: behaving with courteous professionalism is in your own self-interest.  That is so for two reasons: first it will help you in your relationship with judges.  But, second, it is the most effective way of advertising and getting more work.

… avoid the snark

As to the first point, you will by now have been told that in correspondence and submissions, you should avoid the snark.  Remove the adverbs.  You will have been told that judges hate that sort of stuff.  I’m here to tell you that what you have been told is true.  We do.  But the reason we hate it is that it’s usually a distraction.  To continue on the point I have already made, it’s not helping us to solve the problem of the day.  If we have to interfere with a cross-examination because counsel is being rude and unfair to a witness, then we have been distracted from understanding whatever real point counsel is seeking to make.  And the same applies where we effectively forced to referee between squabbling opponents.  It’s a distraction from the main game.

As to the second point, and this is where your self-interest really comes in, is this.  The best way of advertising is to be so good and so professional that your opponent’s instructing solicitor or your opponent’s client will want you next time. 

As counsel I have seen opponents win cases but having made such pigs of themselves on the way through, that my solicitors have formed the view that not only would they not ever brief the winning counsel, but they would take it upon themselves to ensure that no-one else in their firm would ever brief that counsel.   

On the other hand, I have also definitely seen (and heard of) the converse.  Cases where winning counsel has operated to devastating effect, but on the way through, displayed courtesy to the opponent, to the opponent’s solicitor and to the opponent’s client.  Funnily enough within a few days or weeks, they have received a brief from the opponent’s solicitor or client on some other matter.  I have been left in no doubt that the manner of the win was causally related to the latter outcome.

You should try to remember that.  Never confuse mindless aggression with competence.  To repeat, courteous professionalism is not just your duty, it serves your self-interest. 

My next proposition is just as easily understood, but, bizarrely to my eyes, still sometimes breached by advocates.  Even if you are the smartest person in the room, don’t behave that way.  It is discourteous to your opponents and the judge. And it is unhelpful.  No one likes being talked down to or being made to feel inferior.    

I once presided over a case in the trial division which involved a taxpayer’s attack on the validity of assessment decisions for land tax.  The taxpayer ran a constitutional argument against the validity of a section of the Taxation Administration Act, and, accordingly, of the assessments.  It sought to persuade me, first, that when the Act conferred jurisdiction on the Commissioner for State Revenue for the issue of assessments and the determination of objections it was conferring judicial power on the Commissioner and, second, that conferral of jurisdiction was void on Kable grounds because, the taxpayer contended, State Parliaments could not confer judicial power without also conferring a proportionately regulated right of appeal to the State Supreme Court and, third, the Act had not conferred such a right.

Bret Walker SC represented the taxpayer and ran those arguments.  Bret was and is one of Australia’s leading constitutional lawyers and High Court advocates.  Other very good and very experienced senior counsel represented the other parties.  Without any disrespect to them or undue humility on my own part, Bret was undoubtedly the smartest person in the room.  Yet you wouldn’t have known that from the way he ran his argument.  When in the course of argument, I expressed some heretical proposition concerning the constitution, Bret gently pointed out my error and brought me back to a proper consideration of the issue.  It was a real lesson in advocacy.  I enjoyed the whole thing immensely.  He didn’t win the point, but then he didn’t expect to.  He was trying to set up a test case that he could take the High Court.

I have seen different behaviour by advocates, where they have talked down to judges.  It is amazing to me.  It never works.  Truly, if you behave like that, I don’t know what’s going on in your head.

You will have occasions when you think you are more knowledgeable than your opponents or even the judge on some particular issue.  But don’t let it show.  You will be far more persuasive if you take that approach.  And, from a self-protection point of view, sometimes you will think you are the smartest person in the room, but you will be wrong.  Much less embarrassing to reach that realisation if you haven’t already made a pig of yourself.

… all have had a touch of imposter syndrome

And look, I don’t know any of you at all.  Perhaps some of you will be the next Susan Kiefel, or Stephen Gageler, or Pat Keane, or James Edelman.  But chances are you are not. Like the rest of us, you probably will not always, or even often, be the smartest person in the room.  You will have doubts about your own abilities.  But that’s not necessarily a bad thing.  I can give you the comfort of knowing that the most brilliant people I have known, people who must have known that on any objective assessment they were not only competent but actually very good, all have had a touch of imposter syndrome.  That is, they all had a bit of self-doubt in their own abilities, despite evidence to the contrary. 

Whilst you do have to have a healthy ego to do this work, and you can’t let yourself be crippled by self-doubt; I don’t think that a touch of imposter syndrome is a bad thing.  It helps you avoid arrogance and self-satisfaction.  And it operates as a driver in what should be your never-ending pursuit of excellence.  Cultivate that, not hubris.

The final thing I want to say to you is to encourage you to recognise the importance and worth of your role as a barrister.  By this I mean that you should appreciate that in your journey you will play an important part in maintaining the rule of law.  There is a real societal benefit which flows from your choice of a career in the law. 

Of course, one aspect of the worth of such a career is that it will, hopefully, provide the means by which you will provide for yourself and your family. There is merit and self-esteem to be found in that basic proposition. Its worth should not be underestimated.  But in truth the same can be said of any form of remunerative work, whether that of labourer; tradesperson; surgeon or scientist.

Those of us in the law have, or should have, higher aspirations than merely earning a living. Barristers’ work helps their clients, some of whom might call for the barrister’s services at the lowest point in their lives. And at the most abstract level, barristers are not just workers for themselves or their clients, but workers who contribute to the rule of law. 

There is worth in a society governed by the rule of law.  Society cannot be governed by the rule of law unless there are laws. And laws are of no use unless they are applied, interpreted and enforced.  Those of us in the law, one way or the other, help to make laws and help to apply, to interpret and to enforce them.  We all play a part in the dispensation of justice according to law.

This is a real societal good.  Never forget that.  Our system of the rule of law isn’t perfect by any means.  But it is better than the alternative.  It is not overly dramatic to observe that there are plenty of present-day examples of societies which are not governed by the rule of law, but which are governed by raw power, usually out of the barrel of a gun.  Barristers’ work helps our society avoid that outcome.

One of the most eloquent statements of the same conception which I have ever read was made by Robert Bolt in his play “A Man for All Seasons”.  The play is based on the historical events leading up to the execution of the great English saint and jurist, Sir Thomas More, the 16th century Lord Chancellor of England.  I recommend the magnificent 1966 cinematic version of the play featuring Paul Scofield as More. 

The statement I am thinking of occurs when More is talking to his future son-in-law, William Roper.  Roper seeks to encourage More to use the power of his office as Lord Chancellor to arrest the dastardly Richard Rich, an ambitious weasel of a man planning to do harm to More, contrary to, in Roper’s view, God’s law.  More resists the suggestion, arguing that if Rich has broken God’s law, then God could arrest him, but he, More, would not, because Rich not broken any law.  The passage continues:

William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I’d cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

I’m no Paul Scofield, and my reading of the passage can’t do it justice.  But on any view, it is stirring stuff.

I acknowledge that it might be difficult to remember such lofty ideals when you are toiling in some far-flung Palais de Justice presenting a sentence submission on behalf of someone who has pleaded to a minor common assault.  Or, as a junior slogging your way through days and days of transcript trying to find some jewels for cross-examination or closing submissions, in a case where no-one is really the good guy.

But my point is nevertheless real.  By playing your part in the system, you help the system work.  And it is worth doing so. 

And even if you can’t see any immediate or direct objective good in what you are doing, can I pass on the substance of some advice which the great Sir Gerard Brennan gave me when I was his associate in 1985. 

Even if you can’t immediately see that the performance of your professional role is achieving anything objectively worthwhile, anything which you can regard as something useful for society, just keep going.  Hone your skills, get as good as you can, earn as good a reputation as you can.  Eventually you will be given a role or an opportunity to do something which you can regard to be truly worthwhile and meaningful. 

For me, his Honour was right.

Of course, in the process of honing your skills, sometimes you will be Sam, winning the day with a devastating blow, but sometimes you will be Ralph, the recipient of that blow.  Which you will be on any given day will often be outside your control no matter how brilliantly you perform.  But the thing to remember is this: whether you are Sam or whether you are Ralph, it really is how you play the game that matters.  And at the end of the day, you’ll find that playing the game has been worth it.

And on that note, I’ll stop.  It’s now over to you.  Good luck in your careers.  I hope to see you in Court.

Paper delivered at a CPD seminar at the Bar Association of Queensland, Inns of Court, Brisbane, Tuesday 13 June 2023.

Not all pleadings are created equally. Some are so obscure that a judge will read to the end but still not really know what the party’s case is about.

Introduction

Pleadings are a sequence of formal documents, prepared in compliance with certain procedural rules, by which parties to civil litigation explain to each other and to the court what the dispute between them is about.

If they are prepared properly, they will promote the possibility that the resolution of the dispute by the court will occur in a manner which is both –

(a) efficient (because the parties will know what the matters in issue are and will be able to focus their efforts accordingly); and

(b) fair (because the parties will know what is coming at trial and should not be surprised by what happens there).

And although it is but an elaboration on the twin themes of efficiency and fairness, it is by reference to the pleadings that a court determines:

(a) what documents need to be discovered by compulsory process before trial;

(b) what evidence is admissible at trial;

(c) what issues can be argued at the conclusion of the trial;

(d) what matters can be raised on appeal; and

(e) the extent to which the judgment of the court binds the parties, so as to prevent them from relitigating matters in future.

Not all pleadings are created equally. Some are so obscure that a judge will read to the end but still not really know what the party’s case is about. Some are so long and convoluted that a judge will not want to attempt to read to the end. As Martin J observed about an unsatisfactory pleading in Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2012] QSC 314 at [29]:

“… Neither the opposing party nor the court should have to wade through a series of unconnected assertions searching for the issues. To paraphrase an illuminating statement made elsewhere judges are not like pigs, hunting for truffles in pleadings.”

And some pleadings are so deficient that a case which could have been prosecuted (or defended) expeditiously to success dies the death of a thousand cuts in interlocutory application hell.

Pleaders who have not done the requisite analysis or who have not read or understood any of the rules of pleading, tend to make the same types of mistakes.

One particularly troublesome area is the manner by which litigants plead something which asserts a causation hypothesis. The purpose of this paper is to develop some thoughts as to the principles which should inform the proper pleading of a causation hypothesis, with a view to assisting pleaders to avoid some common problems.

The golden rules of pleading

The twin golden rules of pleading are:

(a) Your pleading must evidence clarity of legal analysis and

(b) Your pleading must evidence clarity of presentation.

The former occurs when the pleader has a clear understanding of the elements of the cause(s) of action or of the base(s) of defence that are to be expressed in the pleading. The criticality of the performance of the appropriate legal analysis which leads to that understanding cannot be overstated.

The latter occurs when the pleader has taken the time to ensure that, having done the requisite legal analysis, the elements of the cause(s) of action or of the base(s) of defence have been articulated in writing in a way which is both –

(a) lawful (in the sense that the presentation has obeyed the applicable mandatory procedural rules); and

(b) persuasive (in the sense that that the presentation is organised, efficient and comprehensible to the reader).

Let me explain how and why that is so.

Clarity of legal analysis and causation

It is a trite proposition that pleaders must know and understand the substantive law which is applicable to the proper analysis of their client’s rights. Without doing so they cannot hope to be able to plead the material facts which will establish their client’s rights.

Of particular relevance to the subject matter of this paper is the fact that all of the most common causes of action by which a claimant can assert an entitlement to the recovery of a pecuniary remedy involve the assertion of a causation hypothesis. And implicit in the pecuniary remedy which many plaintiffs wish to assert is the establishment of some form of counterfactual.1 The present point is that the substantive law is not necessarily the same either in relation to the nature of what is necessary to establish the requisite causation, or in what type of counterfactual might be relevant or appropriate to a pleading.

It is not the function of this paper to examine the substantive law on these issues in any detail. It will suffice merely to describe the considerations which should be examined by the pleader in each case.

We all know that the law of contract confers an entitlement to recover damages for breach of contract on a contracting party who has been injured by the other contracting party’s breach of contract. The law of contract also tells us that where a party sustains a loss by reason of a breach of contract, that party is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.2 The causation hypothesis is that the breach of contract caused the claimed loss. The measure of damages depends upon establishing the counterfactual that the plaintiff would have been in a better position had the contract been performed according to its terms, and then measuring the extent of the difference between that position and the position in which the plaintiff found itself because of the breach.3

Some complexity might be introduced where the difference between the two positions is that in the former position, the plaintiff would have had a valuable commercial opportunity and in the latter position the plaintiff does not. Then the measure would be the value of the lost opportunity. Where what has been lost is a commercial opportunity of some value (not being a negligible value), the value of that lost opportunity is to be ascertained by reference to hypotheses and possibilities which, though they were speculative and therefore not capable of proof on the balance of probabilities, could be evaluated as a matter of informed estimation.4

In order to be able to plead a case which claims damages for breach of contract, one would have to understand at least those propositions.

But one would also have to identify and consider the applicability to the circumstances under consideration of those aspects of the substantive law which inform the determination of causation and measure of damages in contract, including foreseeability and remoteness.

Sometimes statute law will be relevant to a contract case. Take the case of breach of a contract which imposed a duty on party “A” to exercise reasonable care in the respect of the protection of party “B” from harm. In such a case it would be necessary to consider the impact of the Civil Liability Act 2003 (Qld) on the cause of action, that statute containing important provisions concerning causation, foreseeability, and onus of proof.5

Similarly, the law of tort confers an entitlement to recover damages on a person harmed by another person’s tort. The law of tort tells us that the injured party is entitled to be compensated by an award against the tortfeasor in a sum which, so far as money can do so, will put that party in the same position as he or she would have been in if the tort had not been committed.6 The causation hypothesis is that the tortfeasor’s conduct caused the loss. The measure of damages depends on identifying the extent to which the plaintiff is worse off by reason of the tort, which turns at least as a matter of logic on a comparison between a counterfactual (namely the position in which the plaintiff would have been had the tort not occurred) and the factual (the position in which the plaintiff found itself because of the tort).7 Notably, the Civil Liability Act 2003 (Qld) often applies in relation to tort claims.

A pleading is the pleader’s first chance to demonstrate to the opponent and to the judge that the pleader’s case has merit. Care should be taken to adopt techniques suited to that goal.

One of the most common causes of action in modern commercial litigation is the cause of action under s 236 of the Australian Consumer Law to recover loss or damage suffered because of another person’s misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law. The causation hypothesis is that the claimant suffered loss or damage “because of” the wrongdoer’s contravening conduct. The measure of damages depends on identifying the extent to which the consumer is worse off because of the contravening conduct, which turns, at least as a matter of logic, on a comparison between a counterfactual (namely the position in which the consumer would have been had the contravening conduct not occurred) and the factual (the position in which the consumer found itself because of the contravening conduct).8

Of course, the considerations which I have just mentioned are as significant for a defendant as they are for a plaintiff. In the first place is that so because the defendant will put itself in the position of being able to analyse the plaintiff’s case properly and so to determine where weaknesses may be found. But, importantly, it may be that the defendant itself must assert a causation hypothesis, and it might be a causation hypothesis which asserts a particular counterfactual.

For an important example of such a case, regard should be had to the High Court decision of Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715.

That case concerned an agency agreement under which either party could terminate by giving 30 days’ written notice on or after the “expiry date”, expressed in terms that “the agreement remains valid until 30th June, 2008 and will be automatically renewed for further terms every two years unless terminated as per the Termination clauses.”

The respondent misled the appellant into signing a letter of termination, the appellant’s expectation being that the termination was just an administrative act and that the agency arrangement would nevertheless continue.

The appellant sued for damages under s 82 of the Trade Practices Act, each party proceeding on the basis that, if the respondent were found to have engaged in misleading or deceptive conduct contrary to s 52, the amount recoverable depended on the commissions that would have been payable had the termination letter not been signed in reliance on the respondent’s wrongful conduct.

The appellant contended that, but for being tricked into signing the termination letter, the agency agreement would have continued indefinitely or at least until June 2010 when the respondent terminated all of its other agency agreements after public disclosure of bribery allegations. The respondent countered that it would have terminated the agency agreement lawfully by giving notice expiring on 30 June 2008.

Both sides, in other words, were advancing competing counterfactual propositions.

The two judgments in the case (on the one hand that of Bell, Keane and Nettle JJ, and on the other, that of Gageler and Edelman JJ) bear careful examination. They contain interesting examinations of the legal onus of proving damage and of how an evidential onus can shift onto someone not bearing the legal onus in particular circumstances.

There had been a suggestion at first instance that to allow the respondent to rely on such a hypothetical counterfactual was precluded as a matter of law, because to allow it to be advanced would be to allow the respondent to take advantage of its fraud.  Bell, Keane and Nettle JJ opined (at [27]):

“Permitting a fraudster to plead and prove a lawful counterfactual which, but for its fraud, the fraudster would have pursued, is not in any sense to permit the fraudster to take advantage of its fraud. … it is to do no more than to limit the amount recoverable by the victim to the amount of loss or damage which the victim is shown to have suffered “by” the contravening conduct within the meaning of s 82 of the TPA. That accords with the general principle at common law that a wrongdoer is not required to compensate a victim for loss which the wrongdoer does not cause, even where the cause of action is the tort of deceit.”

Notably, their Honours immediately followed that observation with the observation that that possibility might be more theoretical than real, when they stated that established principle and authority supported the view:

“… in circumstances where a party has resorted to fraud to achieve an objective which it was open to achieve by lawful means, it becomes more difficult, if not impossible, to draw an inference that, but for the fraud, that party would have chosen to proceed by lawful means …”.

The case was resolved by Bell, Keane and Nettle JJ on the basis that the respondent had not established that there was a real (not negligible) possibility that the respondent would have terminated the agency agreement by lawful means at any time before June 2010 and by Gageler and Edelman JJ on the basis that the respondent failed at trial to discharge the evidentiary onus imposed upon it by the way it had joined issue with the appellant on the pleadings, on the question of causation of the loss they claimed to have suffered.

I will come back to the signifance of this case under the consideration to which I now turn, namely the relationship between the second of the twin golden rules of pleading to the question of pleading causation.

Clarity of presentation and causation

I have earlier identified that my conception of a pleading which meets these requirements is a pleading which is both –

(a) lawful (in the sense that the presentation has obeyed the applicable mandatory procedural rules); and

(b) persuasive (in the sense that that the presentation is organized, efficient and comprehensible to the reader).

Obeying the applicable mandatory procedural rules

Let us first consider the implications of the first aspect, namely obedience to the applicable mandatory procedural rules.

Rule 149 of the Uniform Civil Procedure Rules requires plaintiffs to set out a statement of all the material facts on which they rely, including by stating specifically any matter that if not stated specifically might take another party by surprise. Rules 150 and 155 identify matters which must be specifically pleaded, including concerning damages. Rule 157 requires the inclusion of particulars necessary to define the issues for, and prevent surprise at, the trial; and enable the opposite party to plead; and support a matter specifically pleaded under rule 150.

My decision in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 7) [2019] QSC 241 draws into one place a number of the leading authorities concerning the implications of such rules on pleading causation.  The critical proposition was advanced in these terms (at [21]):

“The result is that where a party’s causation hypothesis depends on establishing a particular counterfactual scenario to establish the alleged causal link between breaches of contract and the loss which it is said would have eventuated if the conduct which the party impugns had not occurred, that counterfactual scenario must be pleaded and particularised in accordance with the rules of pleading. This should be done with the degree of clarity referred to in Oztech Pty Ltd v Public Trustee of Queensland. The pleading so framed must at least arguably establish a reasonable inference that the impugned conduct and the claimed loss stand to each other in the relation of cause and effect.”

In the subsequent High Court decision of Berry v CCL Secure Pty Ltd, Gageler and Edelman JJ (at [72]) made similar observations in the following passage:

“The function of pleadings is to state with sufficient clarity the case that must be met” and thereby to “ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and … to define the issues for decision”. A plaintiff should be expected to plead all material facts on which the plaintiff relies to constitute the statutory cause of action, including any counterfactual on which that plaintiff relies to establish the requisite causal link between identified loss or damage and identified misleading or deceptive conduct. In the same way, a defendant resisting the statutory action should be expected to plead any different counterfactual on which that party might rely to deny the causal link. Unless and to the extent that the parties choose to depart from the pleadings in the way they go on to conduct the trial, choice between the competing pleaded counterfactuals on the balance of probabilities should then exhaust the fact-finding that is required to be undertaken by the court on the issue of causation.”

One should not get too carried away by the presently fashionable use of the terminology of “counterfactual”. I say presently fashionable because an Austlii search reveals the earliest use of the term in Australian case law as occurring in 1999. An ICLR search in British case law suggests the earliest use of the term as occurring in 2002. The truth is that not every pleading of a causation hypothesis requires a pleader to rely on the explicit articulation of a counterfactual.  For example:

In misleading and deceptive conduct cases it is common to distinguish between “no transaction” cases and “altered transaction” cases. In the former case, the counterfactual is “but for the contravening conduct the plaintiff would not have entered into the transaction”. That counterfactual is simple to plead. The measure of loss is also usually simple and is quite often a variation on a “worse off because spent money and lost it” theme. In the latter case, the counterfactual is “but for the contravening conduct the plaintiff would have entered into a different transaction” whether the same transaction with changes, or a different transaction entirely. In that case the counterfactual requires greater attention.

What is necessary in all cases, however, is that, having done the requisite analysis and identified the pecuniary recovery which is sought to be made, the pleader articulates a causation hypothesis pleading the material facts which establish the causal link between the impugned conduct and the loss in such a way as will match the type of case the pleader is seeking to advance.

What are some common issues?

Pleaders who have not done the requisite analysis or who have not read or understood any of the rules of pleading, tend to make the same types of mistakes.

First, a pleading which asserts something like this

“In consequence of [the impugned conduct], the plaintiff has suffered loss in the sum of $xxx,”

where the amount claimed has hidden within in it some form of complex counterfactual and detailed consideration which the pleader hasn’t bothered either to think about or articulate.

Such a pleading is defective because it pleads a rolled up conclusion that conduct caused loss, without pleading the material facts which establish the link between the conduct and loss. Such a pleading may also be defective for failure to comply with the provisions of the UCPR concerning specific pleading of damages.

Second, a disorganised pleading which narrates a story in a prolix way and the ends with something like “in the premises, the plaintiff has suffered loss”. Usually such a pleading has the additional flaw that the prolix narrative is merely a recitation of evidence rather than an attempt at pleading material facts which establish the elements of the cause of action concerned. Such a pleading confronted Jackson J in Mio Art Pty Ltd v Macequest Pty Ltd & Ors [2013] QSC 211. The plaintiff’s case was that it had suffered loss arising from breach of various contractual, statutory and fiduciary duties which arose in a complicated property development transaction. The pleading alleged in narrative style factual matters in chronological order and that paragraph [261] was in this form “By reason of the matters pleaded in paragraphs [1] to [260] KHD has suffered loss and damage”. Unsurprisingly his Honour found that to be unsatisfactory.

Far better to “translate” the report into a proper pleading of material facts set out at a sufficiently high level of generality as will admit some variation to the expert opinion.

Third, the pleader that seeks to avoid having to confront the difficult task of meeting the requirements of orthodoxy by suggesting that it becomes unnecessary in modern case- managed litigation where parties will by direction be required to deliver their lay and expert evidence in staged manner before trial, usually in such a way that the Court will not permit further evidence without leave. I addressed some of the implications of the modern case managed litigation in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4) [2019] QSC 199. In that case, I observed (at [15]):

“It is axiomatic that if case management orders have required the parties to disclose to their opponents the way they intend to prove their respective pleaded cases, that course was required because the Court determined that it would serve to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. But recitation of that sort of motherhood statement is not a sufficient articulation of the purpose of requiring such a course. The underlying purpose is to avoid surprise to the other party and to allow the issues to be narrowed, albeit at a more granular level than is achieved by the delivery of pleadings. It is to allow any eventual trial to proceed in a more efficient manner than it might otherwise have proceeded. In order to fulfil that purpose, it must follow that there is some degree to which the parties are confined to the manner of proving their case which they have flagged by the material which they have delivered in compliance with such case management orders. That is why such orders conventionally also specify that the parties may not deliver evidence outside the constraints of the orders concerned, except with leave of the Court. The extent of confinement which must be regarded as having been achieved by such orders and the attitude which must be taken to applications for leave will be very much a question of fact and degree, and will vary from case to case. The considerations which would be relevant to the exercise of a discretion to permit evidence to be adduced outside the constraints imposed by the case management orders of the type under discussion are similar to those applicable to pleading amendment: see Sanrus No. 2at [12] to [15].”

Whilst it must be acknowledged that any deficiency in pleading causation in an orthodox manner may be ameliorated to some extent by the fact that the pleading was delivered in the context of a proceeding which is case managed in that way, I pointed out in Sanrus No 7 (at [32] to [34]) that the extent of that amelioration is not complete for at least these three reasons:

“First, the evidential material which each side provides to their opponent consequent upon such directions is proposed evidence. It is not a pleading. It does not actually bind the party providing it in the same way as does a pleading. If a pleaded allegation is admitted on the pleadings, no evidence is required on the admitted fact and the admission may not be withdrawn without leave. On the other hand, a plaintiff’s witness summary (or expert report) and a defendant’s witness summary (or expert report) delivered before trial might well suggest that the witnesses agree on a fact or on an opinion, but that does not bind either party in the same way as a pleaded admission. Even if the proposed evidence is admitted into evidence at the trial, either party can still ask the trier of fact not to accept one aspect of the evidence it adduces at trial, or ask the trier of fact to prefer one aspect of the evidence it adduces at trial over another.

A second and related point is that, for one reason or another, the proposed evidence may not actually find its way into evidence at the trial. A party may choose not to call the witness or to tender the expert report. Or, the proposed evidence might be held out because of successful objections as to its admissibility.

Third, in any event the extent of the clarity which a party obtains concerning the fact and nature of any unpleaded counterfactual propositions in an opposing party’s pleading would necessarily derive from their own analyses of the opposing party’s evidence rather than from the opposing party having committed to a statement in their pleading which defined and confined their case. Pleadings are required so that a party does not have to work out itself what is the opposing party’s case. As the Full Court of the Federal Court said in Oztech Pty Ltd v Public Trustee of Queensland …, the pleading party should ensure that “there be no need for the opposite party to closely scrutinise the pleading in a process of textual construction to determine whether a particular fact is relied upon, or the purpose for which it is alleged”. A fortiori, when a party has left the definition of its case to be divined from its evidence, delivered in a case which has been managed in the way I have described.”

Fourth, it is not uncommon to find a lazy pleader who seeks to meet the requirements of a proper pleading of causation by pleading cross-reference to an expert report. This may seem to be an efficient and convenient way of addressing causation and often such a pleading will escape any complaint either from the opponent or from the Court. But it is technically deficient because it is a plea of evidence rather than material fact. And the pleader must be aware that by taking such a course, any change in the expert opinion will amount to a departure from the pleading. In almost all cases it would be better for a competent pleader to understand the case actually being presented in the expert report, and then to articulate a plea of material facts which makes such a case.

Pleading persuasively (in the sense that the presentation is organised, efficient and comprehensible to the reader)

A pleading is the pleader’s first chance to demonstrate to the opponent and to the judge that the pleader’s case has merit. Care should be taken to adopt techniques suited to that goal.

First, pleaders should try to organise the pleading logically and chronologically. Hopefully they will have done the analytical exercise of identifying the cause or causes of action and the elements thereof, so they should adopt a structure consistent with that analysis including by the liberal use of headings which differentiate between the causes of action which they assert and within each cause of action which identify the relevant elements in some way.

Second, pleaders should use but not overuse defined terms. In this regard:

(a) They should try to choose obvious and neutral definitions so that both parties can adopt them. Defining the defendant as “the wrongdoer” is unlikely to be a helpful choice.

(b) Pleaders should avoid multiple use of acronyms because that is often very confusing for a judge.

(c) If particular contractual instruments are relevant to the case, pleaders should consider using some or all of the defined terms in the contractual instruments so as to promote consistency.

(d) There isn’t any point in defining a term which is only used once or twice in the pleading.

Third, where a case involves a multiplicity of allegations of the same type or which fall into groups, give careful attention to the best way to present detail in a way which is intelligible and useful. In particular, pleaders should give consideration to the use of techniques which permit distracting detail to be removed from the body of the pleading and to be put in a schedule or schedules. The technique adopted in building and construction cases of using a Scott Schedule is very useful in such cases and is capable of being modified and used in other cases.

Fourth, pleaders should be conscious of the fact that the pleading is the foundation for the development of the case as a whole and their case in particular. If, for example, a pleader is for the defendant and the plaintiff’s pleading is a shambles, the pleader may want to give consideration to starting the defence not simply by responding paragraph by paragraph to the shambles, but rather pleading an organised collection of material facts first. Then when the pleader gets to the responsive part of the pleading he or she can plead by cross- reference back to something which makes sense.

Fifth, pleaders should plead tactically. Thus:

Finally, pleaders should be conscious of the fact that the document is a literary work which a judge will read. As with many things, style counts. They should have a consistent paragraph numbering and headings scheme. They should employ consistent use of font and indentations. They should try to use proper grammar and spelling.

[1] The Macquarie Dictionary defines the noun “counterfactual” as “a conditional statement, the first clause of which expresses something contrary to fact, as: if I had known.”

[2] Robsinson v Harman (1848) 1 Exch 850 at 855, approved in Commonwealth of Australia v Amann Aviation Pty Ltd   (1991) 174 CLR 64 per Mason CJ and Dawson J at 80, Brennan J at 99, Deane J at 117, Toohey J  at 134, Gaudron J at 148-9 and McHugh J at 161.

[3] Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at 286; Clark v Macourt (2013) 253 CLR 1 per Hayne J at 6 and 8, Crennan and Bell JJ at 11-12, Gageler J at 19 and Keane J at 30-32.

[4] Berry v CCL Secure Pty Ltd (2020) 94 ALJR 715 at [32] per Bell, Keane and Nettle JJ, citing relevant passages from Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 and Sellars v Adelaide Petroleum NL (1994) 179 CLR 332.

[5] ss 9, 10, 11 and 12.

[6] Haines v Bendall  (1991) 172 CLR 60 at 63 per Mason CJ, Dawson, Toohey and Gaudron JJ and Amaca Pty Ltd v Latz (2018) 264 CLR 505 per Kiefel CJ and Keane J at [41] and Bell, Gageler, Nettle, Gordon and Edelman JJ at [87].

[7] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 639.

[8] Sellars v Adelaide Petroleum NL (1994) 179 CLR 322 per Mason CJ and Dawson, Toohey and Gaudron JJ at 355 and Brennan J at 368; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 per Gibbs CJ at 6-7 and Mason, Wilson and Dawson JJ at 12.