“Since ancient times, human beings have known of the dangers of flight. The mythologies of Greece, Crete, Persia and other lands include stories of injurious attempts by men and women to soar into the firmament.  In his Metamorphoses, Ovid describes the winged flight of Daedalus and Icarus, brought to an end by the youth’s reckless attempt to soar too high. The appellant in this case likewise complains of an injury caused by his air travel. However, whereas Icarus had only his father Daedalus to assist him in his peril, the appellant has the Warsaw Convention. To that Convention he has appealed. But as I shall explain, it is of no greater avail.”

Povey v Qantas Airways Limited [2005] HCA 33; (2005) 79 ALJR 1215, per Kirby J.

This area of practice often requires some knowledge of different legal systems, liability theories, the basic principles of private international law, court’s jurisdiction limits, and the court rules for foreign service of process.

The goal of this paper is to equip the busy practitioner with some, hopefully enough, information to assist them to assess and investigate the viability of an aviation claim and then take steps to ensure that it gets off on the right foot.

The paper is lengthy, canvassing a raft of topics in this jurisprudential space, but the index thereto is hyperlinked to allow of ready selected topic access.

Actions for Aviation Injuries and Death

Practical Legal Ethics in Personal Injury Litigation

The attached paper examines some practical aspects of disclosure in personal injury litigation in Queensland. This is only one small part of the total picture of disclosure. This paper nonetheless seeks to ameliorate (hopefully) any confusion that practitioners may experience about the scope of the disclosure obligation (both legal and ethical).

Introduction

1. Litigation lawyers have a lot of experience with pleadings.
2. This leads us to believe that we know how to plead.
3. Sometimes something occurs to make us question that belief.       
4. In my case it was a passage in the 2008 article, Seven Deadly Sins of Pleading, by Tony Morris QC (as he then was, now KC).
5. The passage said:[1]

“One feels some sympathy with King Cnut in attempting to turn the tide against practices which have become entrenched. And one suspects that such an article as this is perhaps the least effective way of turning the tide, because the types of counsel who unthinkingly adopt such practices are often the types of counsel who don’t bother to read such articles.”

6. Having read that, then I had to read the rest of his article, lest I forever condemn myself to being one of those counsel who do pleadings in a mediocre way because they didn’t bother reading his article.
7. I am pleased I did. I encourage you all to do likewise.
8. The article identified a number of areas where I was guilty of repeating dubious yet common pleading practices, perhaps even out of “indolence or lassitude”, as that author kindly put it.
9. Another passage from Tony’s article on sins of pleading is salient:

“A good pleading is one which does not merely comply with the formal requirements of the rules of the relevant court. It is one which, in addition, takes full advantage of the forensic opportunities which the pleading process affords.”

10. In my experience many practitioners still plead as if it were a task to be ticked off, without applying their minds to the forensic advantages that may flow from a more careful pleading (and the forensic disadvantages from not doing so).

Pleading in Qld

11. Different jurisdictions adopt different practices with respect to pleading.
12. The focus on this paper is pleading under the Qld Uniform Civil Procedure Rules (‘UCPR’).
13. Qld pleading practice differs, in important respects, from that in most other jurisdictions.
14. This is a concern for interstate lawyers pleading, and responding to pleadings, in this jurisdiction.
15. My first tip is therefore, when pleading in an unfamiliar jurisdiction, always read, think about, and comply with the requirements of the local rules.
16. If in doubt, seek input from someone more familiar with that territory than you are.

Avoid Misconceptions

17. Plead in a way that clarifies issues in dispute.
18. If you believe your opponent misunderstands the basis of your pleading then clarify that misconception immediately.
19. In White v Overland [2001] FCA 1333 Allsop J (as he then was) said:

However, by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. ……where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other side is not proceeding on a misconception or that the other side does appreciate some that has been said. Litigation is not a game. It is a costly and stressful, though necessary evil. … But no one’s interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false.

Ethical Obligations

Aspirational Pleading

20. If you don’t believe you can prove a particular material fact or cause of action, then you should not plead it.
21. That sounds obvious, but it is surprising how often practitioners still plead aspirations untethered by actual evidence.
22. This is not just bad practice, but it is also contrary to the requirements of the professional conduct rules.
23. I reproduce the relevant conduct rules below.

Barristers Conduct Rules

24. Rules 63 and 65 of the Barristers’ Conduct Rules made under the Legal Profession Act 2007 say:

“63.     A barrister must not allege any matter of fact in:

1. any court document settled by the barrister;
2. …etc;unless the barrister believes on reasonable grounds that the factual material already  available provides a proper basis to do so.

…

65. A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which Rules 63 and 64 apply, as a reasonable ground for holding the belief required by those Rules (except in the case of a closing address or submission on the evidence).”

Solicitors Conduct Rules

25. The Solicitors’ Conduct Rules 2012 include:

“21.3   A solicitor must not allege any matter of fact in:

21.3.1        any court document settled by the solicitor;21.3.2        any submission during any hearing;21.3.3        the course of an opening address; or21.3.4        the course of a closing address or submission on the evidence,

unless the solicitor believes on reasonable grounds that the factual material already available provides a proper basis to do so.

21.4     A solicitor must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the solicitor believes on reasonable grounds that:

21.4.1        available material by which the allegation could be supported provides a proper basis for it; and21.4.2        the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.”

General Considerations

26. These are not the only ethical obligations that barristers and solicitors have with respect to pleadings.
27. In particular, always remember that we enjoy considerable privilege, and legal protections, in how we present cases to court.
28. That privilege comes with great responsibility.
29. A pleading is only a collection of untested allegations and, depending on their nature, these allegations may cause financial harm, unnecessary costs, and even reputational harm to one or more of the parties involved.
30. This is particularly so with respect to allegations of gross incompetence, criminality, fraud or other serious misconduct.
31. In short, if you do not reasonably believe you can prove it, then you must not plead it.
32. Pleadings must never be considered as a means of achieving an ulterior purpose for a client.[2]
33. Solicitors must also exercise their independent mind and judgment to pleadings settled by counsel.[3]
34. Sometimes counsel will make assumptions when drafting pleadings.
35. These assumptions must always be carefully checked.
36. If a solicitor believes a pleading settled by counsel alleges facts that are not reasonably provable then those parts of the pleading must be revised.

Purpose of Pleadings

37. Pleadings:

a. articulate the material facts;b. facilitate procedural fairness;c. define the issues for trial;d. limit the scope for disclosure and interrogatories;e. confine the evidence that is relevant and admissible;f. elicit appropriate admissions;g. may facilitate negotiations;h. should avoid unnecessary costs.

38. UCPR 149 states:

“(1)  Each pleading must—

(a) be as brief as the nature of the case permits; and(b) 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(c) state specifically any matter that if not stated specifically may take another party by surprise; and(d) subject to rule 156, state specifically any relief the party claims; and(e) if a claim or defence under an Act is relied on—identify the specific provision under the Act.

(2) In a pleading, 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 the conclusion or point.”

39. For a general description of the general scope and purpose of pleadings also see McGuirk v The University of New South Wales [2009] NSWSC 1424 per Johnson J at [21]-[29].

Basic Skills

40. The pleader must carefully identify:a. what causes of action or defence are available on the evidence; andb. how they will go about proving those claims or advancing that defence.
41. Good pleading requires:a. understanding of the available evidence;b. knowledge of the law;c. clarity of thought;d. precision in drafting.e. clear and parsimonious expression;f. understanding the rules of court relevant to pleadings.
42. A good pleading should be precisely:a. as long as necessary; butb. as short as possible.
43. A good pleading should contain only necessary allegations.

Material Facts & Particulars

44. Appreciate the difference between material facts and particulars.
45. Different requirements apply to each.

Material Facts

46. The pleading must set out the material facts that are sufficient and necessary for the claim or the defence.[4]
47. In Kirby v Sanderson Motors, Hodgson JA observed: [5]

1. “Material” means material to the claim, that is, to the cause or causes of action which are relied on;
2. The requirement of a statement of material facts does not exclude the allegation or legal categories, such as duty of care, fiduciary duty, trust and contract.
3. The general requirement to avoid surprise means the material facts must be stated in such a way that a defendant can understand the materiality of the facts, that is, how they are material to a cause of action.

48. Failure to plead the material facts necessary to make out a claim or defence may result in interlocutory applications, unnecessary delay, adverse costs, and even defeat at trial.

Particulars

49. Particulars are defined in the Butterworths Concise Australian Legal Dictionary as:

Details of the material facts alleged in pleadings, including details of any claim, defence, or other matter pleaded…

50. One way of conceptualising it is that material facts are the bones of the case, while particulars are flesh on the bones.

The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case.

51. The general difference between material facts, particulars and evidence is explained in Goldsmith v Sandilands (2002) 190 ALR 370 per Gleeson CJ at [2]:

The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but “to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial”. The function of evidence is to advance, or cut down, the case of a party in accordance with the rules of statute or common law that determine the nature of the information a court will receive .

52. The UCPR requires a pleading to contain (or be supplemented by) sufficient particulars necessary to:[6](a) define the issues for, and prevent surprise at, the trial; and(b) enable the opposite party to plead; and(c) support a matter specifically pleaded under rule 150.

53. The UCPR also requires specific particulars to be delivered in certain circumstances.[7]
54. Particulars may be supplied in the pleading, or if more convenient, in a separate document.[8]
55. Particulars must be filed.[9]
56. In personal injury proceedings a statement of loss and damage complying with r 547 UCPR must be served within 28 days of close of pleadings and before any request for trial date is filed.
57. Remember that particulars are not material facts.[10]
58. For that reason:a. particulars will not cure the failure to plead material facts;b. it is not necessary to plead in response to particulars.c. particulars will narrow the focus of pleaded material facts, but they will not expand them.

Pleading Conclusions & Particulars

59. Beware the practice of pleading a conclusion of law (which is not a material fact) and then supplementing it with particulars (which are also not material facts).[11]
60. For example, the following is not really a competent pleading:(XX) The defendant was negligent in the way he managed and controlled his vehicle:Particulars:a. Failing to give way to the Plaintiff’s vehicle.b. Travelling at an excessive speed.c. Failing to keep a proper lookout.d. Failing to take any or any appropriate evasive action to avoid collision.

61. In many cases you will get away with this format (because this type of pleading has become ubiquitous, and also because its intent is tolerably clear).[12]
62. But the vice of this form of pleading is that neither the conclusion of law nor the particulars are actually material facts.
63. A party responding to a pleading is only required to plead to allegations that are material facts.
64. This form of pleading (in an appropriate case) might therefore invite objection, perhaps even interlocutory argument, and may ultimately serve no forensic advantage to the client.
65. It is better (in the above example), to reframe particulars as material facts, and followed by an allegation that in the premises of those facts, the collision was caused by the defendant’s negligence.[13]
66. The defendant is then required to either admit, deny, or not admit, each allegation, (validly stating the reasons for any denial or non-admission or risk a deemed admission arising under the Rules).[14]

Pleading Knowledge or Condition of Mind

67. The foregoing observations also apply in other contexts.
68. Two areas are particularly relevant here in negligence claims:a. pleading what a defendant knows or ought reasonably to know; andb. pleading the causative counter-factual.[15]
69. Rule 150(1)(k) of the UCPR requires that “motive, intention or other condition of mind, including knowledge or notice” be specifically pleaded.
70. Such “knowledge” would embrace actual knowledge (including that imputed through a natural person of a particular authorised status) and constructive (i.e. “…ought to know”) knowledge sought to be sheeted home to the opposing party.
71. Rule 150(2) goes on to provide that “any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.” This rule, historically, however, seems honoured more in breach than observance.
72. In Quinlan v ERM Power Ltd [2021] QSC 35[16], Bowskill J (as Bowskill CJ then was) struck out numerous paragraphs of a further amended statement of claim on the basis that they did not satisfy the requirements for pleading a pleading of “motive, intention or other condition of mind, including knowledge”, having regard to rules 150(1)(k), 150(2) and 157(c) of the UCPR. Her Honour’s judgment provides useful consideration of what is required for such a pleading.
73. Her Honour said (at [65]-[66]):

“[65] It is not sufficient for a plaintiff simply to plead facts somewhere in the statement of claim; later to plead in a conclusory way that a party(ies) had a particular motive, intention or other state of mind; and contend that the other party(ies) are on notice, because of the general pleading, of what is to be alleged against them. It is incumbent on the plaintiff to be specific about the basis upon which they allege the motive, intent or other state of mind was held by each particular defendant. Contrary to the plaintiff’s submissions… what r150(1)(k) and (2) UCPR require is the “explicit linking” of facts to inferences; the drawing of an inference is not a matter of law for the court, but a matter of fact [See, for example, Edwards v Noble (1971) 125 CLR 296 at 304 per Barwick CJ; and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 (whether facts are capable of supporting a particular inference is a question of law, but the drawing of an inference from facts is a question of fact).]; and a party is required to “spell out in the statement of claim” the precise manner in which underlying facts are to be deployed so as to establish a matter alleged to be available as a matter of inference from those facts. That is the point of r150(2). It is not appropriate to plead a whole lot of facts, and leave it for the other parties to guess which are relied upon to support the pleaded inference, and for the court ultimately to “reach the correct decision”, irrespective of the parties’ arguments: it is for the party making the allegations to identify the case which it seeks to make and to do that clearly and distinctly”.[See Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 at [25]-[27]. This is all the more essential where the allegations are of fraudulent or serious misconduct, in respect of which more precision is required than in other cases. [Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583 at [70]].

[66] It is no answer to the defendants’ complaints in this regard to say, as the plaintiff does, that the failure to explicitly plead the underlying facts relied upon to support the inference of motive, intention or other state of mind does not matter because: (a) the natural person defendants intend to claim the privilege against self-incrimination – on the contrary, and as discussed further below, this underscores the need for specificity; and (b) the defendants are inherently aware whether they possessed the alleged state of mind or not – that proposition only has to be stated for its inaccuracy to be manifest. The pleading rules are designed to reflect the basic requirements of procedural fairness. If you make an allegation against a person, you are required to coherently articulate it, so that they are in a position to respond to it.”

74. This is salient when pleading a cause of action in negligence for doing or failing to do something contrary to what the defendant knew or ought reasonably to have known.
75. Some practitioners still fail to plead, or properly plead as to the defendant’s reasonable knowledge (or the absence or knowledge) when pleading a negligence claim.
76. Plead these matters carefully and specifically as material facts, not in a formalistic way followed by particulars.
77. Similarly, section 11(3) of the Civil Liability Act 2003 requires that objective material facts be pleaded to establish what a person would have done if a breach had not occurred.
78. The section states:

11 General principles

…

(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—

(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

79. Here it is important to carefully plead the “relevant circumstances” relied upon.
80. The common situation where this arises is where a failure to warn is asserted.
81. But the same difficulty also arises in other situations, such as cases where reliance on negligent advice is alleged.
82. There it is easy to show what a person has factually done in response to the advice, but you must also plead what would have occurred counter-factually but for the reliance.
83. Often pleading the counter-factual will involve pleading material facts about the plaintiff’s prior habit, practice, prior consistent behaviour, knowledge, or prior intent.

Pleading Causation

84. Some general observations about causation are apposite.
85. It is not sufficient to merely state something like: “but for the negligence the Plaintiff would not have suffered loss”.
86. That is a conclusion, not an articulation of material facts.
87. Material facts should be pleaded that demonstrate the causal relationship between the liability events and their linkage to the posited outcomes, both factual and particularly the counter-factual.
88. While this is clear wherever s 11(3) of the Civil Liability Act 2003 applies,[17] the observation also applies generally to all pleading of causation.
89. Pleading causation for the loss of a valuable commercial opportunity requires particular care and analysis.
90. For example, in Graham & Linda Hudday Nominees Pty Ltd & Anor v Byrne & Ors [2016] QSC 221, Jackson J noted (emphasis added):

“ [50]  First, it is necessary for a plaintiff who alleges loss of a valuable commercial opportunity to plead that the loss it has suffered is a loss of a valuable commercial opportunity, identifying the opportunity with some particularity. Second, it is also necessary that the plaintiff pleads what it would have done, where what the plaintiff would have done if the defendant had not been in breach of duty is a necessary causal condition to deciding factual causation. Third, it is necessary for a plaintiff who alleges such a loss to plead the percentage or proportion of the opportunity that was lost, in assessing value on the possibilities, in order to plead the amount of the damages claimed, as is specifically required. Fourth, where a plaintiff alleges a loss of a 100 per cent possibility or the certainty that they would have obtained the hoped for or expected benefit under a transaction which did not occur, it is to be expected that the plaintiff will allege with some particularity the facts by which that certain outcome would have been achieved.

[51]  There are two additional points. In a number of recent cases, courts have considered the extent of the proof and pleading required by way of causation and loss where a plaintiff alleges that as a result of the defendant’s breach of contract, negligence or misleading conduct the plaintiff would not have entered into the actual transaction that was entered into. Where the plaintiff alleges that they would have entered into no transaction on the one hand, or a different transaction on the other hand, the pleading should clearly allege the counterfactual scenario. In a similar vein, in my view, where a plaintiff alleges loss of a valuable commercial opportunity, the plaintiff should in most cases also allege the extent of the loss it says it suffered on the possibilities. It is not sufficient for a plaintiff simply to allege a 100 per cent possibility of obtaining the hoped for or expected benefit, leaving it open to contend that the issue to be decided by the court is the actual degree of likelihood anywhere between 100 per cent and 1 per cent. To require a plaintiff to formulate its case with all reasonable precision does not detract from the power of the court to grant relief generally other than that specified in the pleadings, subject to the application of rules of procedural fairness.

“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.”

91. In Berry v CCL Secure Pty Ltd (2020) 271 CLR 151 at [72], Gageler and Edelmann JJ observed (emphasis added):

“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”; Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286. A plaintiff should be expected to plead all material facts on which the plaintiff relies to constitute the [pleaded] 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 [pleaded] 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 (Banque Commerciale at 287), 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.”

Pleading Damages

92. Rule 150(1)(b) requires “every type of damage claimed including, but not limited to, special and exemplary damages” to be specifically pleaded.
93. Rule 155 UCPR states:(1) If damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed.(2) Without limiting rule 150(1)(b), a party claiming general damages must include the following particulars in the party’s pleading— (a) the nature of the loss or damage suffered; (b)  the exact circumstances in which the loss or damage was suffered; (c) the basis on which the amount claimed has been worked out or estimated.(3) If practicable, the party must also plead each type of general damages and state the nature of the damages claimed for each type.(4) In addition, a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise.

94. What is meant by “type of damage” in r 150(1)(b) and does it differ from “nature” of damages referred to in r 155(1)?
95. The reference to “special and exemplary damages“ in r 150(1)(b) indicates that these are examples of a type of damage referred to in the rule.
96. Rule 155(3) says for each type of general damages claimed you must state “state the nature of damages claimed for each type.”
97. In ordinary parlance the nature of something is a reference to its basic quality or character.
98. I suggest that will depend on the interest infringed (i.e. the basis on which the courts recognise an entitlement for that loss) that gives rise to the claim for damages.
99. Where the claim involves damages for personal injury or death the plaintiff must additionally, within  28 days of the close of pleadings, serve a Statement of loss & Damage (‘SL&D’).[18]
100. The SL&D must contain specified particulars about the damages claimed and identify specified documents relevant to those losses.
101. At first blush it appears otiose for r 150(1) and r 155 to require information that must later be duplicated in a SL&D.
102. However, this would misunderstand the different roles played by pleadings and the SL&D.
103. For example, in AAI Limited v Marinkovic [2017] Qd R 672 Morrison JA (with whom Fraser JA and Mullins J agreed) observed (emphasis added):

“[97] That review is sufficient to show that the purpose and utility of a Statement of Loss and Damage is directed to timely disclosure of information in a personal injuries case, so that parties can attempt to settle the case, have it brought on for trial, frame offers to settle on a more informed basis than might otherwise be the case, and have a framework within which to prepare for trial. However, it is not a pleading and should not be treated as one. Nor does it supplant a pleading. UCPR Ch 6 contains express rules dealing with pleadings, and they do not apply to a Statement of Loss and Damage.

[98] Williams v Partridge concerned a claim for expenses that were not referred to in the Statement of Loss and Damage, but the real vice was that the pleading simply referred the reader to the Statement of Loss and Damage. In other words, the pleader used the Statement of Loss and Damage as the particulars of the pleading, and as a consequence contravened UCPR r 151(1)(b) and r 155. So much is evident from what was said at paragraph [131] of the decision. The result was that the other party did not cross-examine on the topic (raised for the first time in a doctor’s report) as it appeared not to be relied upon.”

104. In Murphy v Turner-Jones [1922] QSC 40 (31 March 2022) Crow J at [66] considered r 155 requires a personal injury plaintiff to particularise how the different heads of damages are calculated.
105. In Quinlan v ERM Power [2021] QSC 35 (26 March 2021), a claim for pure economic loss against the auditor of the plaintiff corporations, Flanagan J found (emphasis added):

“[50] The second aspect is that the defendants allege that the plaintiffs have not complied with r 155 of the UCPR in that they have failed to properly claim and plead damages. I do not accept this submission. Paragraph 212 of the statement of claim pleads the nature of the losses suffered, the circumstances in which the plaintiffs suffered those losses and how those losses have been calculated. In each instance, the losses have been identified and quantified.  The defendants are, of course, at liberty to seek further and better particulars.”

“Rule 155 of the UCPR introduced a rule requiring much more specificity in pleading damages than had previously been the case.”

106. In NDC Investments (Aust) Pty Ltd v Sign Vision (Aust) Pty Ltd & Anor [2013] QSC 35, Atkinson J observed:

“Rule 155 of the UCPR introduced a rule requiring much more specificity in pleading damages than had previously been the case. This serves the purpose of defining the relief sought by the plaintiff with greater clarity so that the defendant knows what case it has to meet and the court what issues it has to decide with regard to that relief.”

107. The degree of specificity required in each case will depend on the nature of the damages claimed.
108. It would seem that a pleading must, at the minimum:a. identify each type of damage claimed; andb. the circumstances in which the losses are said to have been sustained; andc. the amount claimed for each type of damage; andd. the manner in which those amounts are calculated.
109. I suggest it is not necessary to set out voluminous tables identifying individual items of outlay or expenditure as these are strictly particulars, provided the pleading makes clear the matters identified in the preceding paragraph.
110. Rule 155(1) refers to the “amount” (singular) of damages claimed for each type, not details of each individual item totalling up to that amount.
111. But wherever practical to do so, err on the side of caution.

Special Rules of Pleading

Strict Pleading

112. Queensland adopts a strict pleading regime.
113. The UCPR is designed to prevent the practice (common prior to the UCPR) of filing a ‘holding defence’.
114. Failure to follow the requirements of the UCPR can result in:a. deemed admissions;b. inability to lead evidence.
115. This can have profound implications for the unwary pleader and their client.
116. This sometimes creates difficulty for interstate practitioners who are unused to this approach.
117. The time for delivery of a defence (28 days), or reply (14 days), is short.
118. Lawyers must gather their evidence early, lest they may face urgency and inconvenience in drawing any defence or reply.

Answering Pleadings

119. Take careful note of rule 165(2):

165    Answering pleadings

(1) A party may, in response to a pleading, plead a denial, a non-admission, an admission or another matter.

(2)  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.

120. You cannot call evidence to refute any allegation of a material fact that is the subject of a non-admission.
121. This may place your client at a significant forensic disadvantage.
122. This applies also to plaintiffs and defendants alike, as factual allegations in a defence will often require reply.
123. This is discussed in more detail later in this paper.

Deemed Admissions, Denials & Non Admissions

124. Take particular note of rules 166 to 168 UCPR (extracted below).

166    Denials and non-admissions

(1) An allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead to the pleading unless—(a) the allegation is denied or stated to be not admitted by the opposite party in a pleading; or(b) rule 168 applies.

(2) However, there is no admission under subrule (1) because of a failure to plead by a party who is, or was at the time of the failure to plead, a person under a legal incapacity.

(3) A party may plead a non-admission only if—(a) the party has made inquiries to find out whether the allegation is true or untrue; and(b) the inquiries for an allegation are reasonable having regard to the time limited for filing and serving the defence or other pleading in which the denial or non-admission of the allegation is contained; and(c) the party remains uncertain as to the truth or falsity of the allegation.

(4) A party’s denial or non-admission of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or cannot be admitted.

(5) If a party’s denial or non-admission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation.

(6) A party making a non-admission remains obliged to make any further inquiries that may become reasonable and, if the results of the inquiries make possible the admission or denial of an allegation, to amend the pleading appropriately.

(7) 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.

167    Unreasonable denials and non-admissions

If the court considers an allegation of fact denied or not admitted should have been admitted, the court may order the party who denied or did not admit the allegation to pay additional costs caused by the denial or non-admission.

168    Implied non-admission

(1) Every allegation of fact made in the last pleading filed and served before the pleadings close is taken to be the subject of a non-admission and rule 165(2) then applies.

(2) However, nothing in these rules prevents a party at any time admitting an allegation contained in a pleading.

125. These provisions have so far been raised in some 146 decisions resulting in 456 citations.[19]
126. The majority of these decisions involve arguments over defences, though some do relate to replies.

Deemed Admissions

127. The default position under the UCPR is that every allegation is deemed to be admitted unless it is adequately denied or not-admitted.[20]
128. Further, any denial or non-admission that does strictly not comply with the formal requirements of 166(4) also results in a deemed admission.
129. Therefore any material fact that remains untraversed, or inadequately traversed, is admitted.

Form of Denials

130. The only basis for a denial is a belief that the allegation is untrue.[21]
131. I suggest that the belief must be reasonably held when regard is had to the factual material already  available to the party.
132. That is required by the professional conduct rules (discussed previously).
133. The UCPR requires that the pleading making the denial or non admission:a. specify precisely what is denied or not admitted (rule 166(1)(a) UCPR); andb. for each denial or non-admission, contain a “direct explanation” of the grounds on which the belief is based (rule 166(4) UCPR).
134. A common (though by no means universal) practice has developed where individual denials are followed by the incantation: “believing it to be untrue, because…”
135. There is no vice in that, other than repetitive verbiage.
136. Indeed, it may often be prudent to use that (or similar) form or words, as it makes clear to both the pleader and the opponent, that the pleader has understood their duty when deciding how to formulate the response.  
137. In Cape York Airlines Pty Ltd v QBE Insurance (Australia) [2009] 1 Qd R 116 at [27] Daubney J observed:

“[27]   A ‘direct explanation for a party’s belief that an allegation is untrue’ is precisely what it says – a direct explanation for the belief. At first blush, it might be thought curious that the rule requires such an exposition of an essentially subjective matter – a party’s belief as to matters is generally neither here nor there so far as the Court is concerned. There is a significant body of principle and statute devoted to the primary evidentiary rule that witnesses should state facts not opinions and the exceptions to that rule. But the requirement that a party provide a direct explanation for its belief that an allegation is untrue fulfils two important functions: 

1. it compels the responding party to expose, at an early stage of the proceeding, its rationale for a joinder of issue on a particular allegation; 

2. it necessarily compels the responding party to formulate that rationale. In other words, the party must ask itself, and be able to answer the question, ‘Why am I denying this fact?’” (emphasis in original).”

[28]   A party’s direct explanation may, depending on the nature of the allegation in question, be straightforward (e.g. “this event alleged by the plaintiff did not occur at all”). It may be that the party’s belief that the allegation is untrue is founded in a different factual matrix (e.g. “this event did not occur in the manner alleged by the plaintiff”). Or it may be that the party believes the allegation to be untrue because the allegation is inconsistent with other matters which the party would propound (e.g. “the alleged fact is so inconsistent with other matters that the defendant believes it to be untrue”). I should hasten to add that, in giving these examples, I do not purport to cover the field of possible direct explanations, nor should these examples be regarded as templates. I refer to them, however, to reinforce the proposition that what r 166(4) requires is exactly what it says – a direct explanation for the belief.

138. It appears impermissible to alternatively plead that a party either denies of does not admit an allegation.[22]
139. As a matter of logic, if something is denied it is because the party believes it to be untrue, whereas a non-admission involves uncertainty over whether it is true or false.
140. The pleader must have a view one way or another, not (at least after making reasonable inquiry) hold both views simultaneously.
141. That said, it is logically possible that a party has a belief that something is untrue based on belief about another fact or state of affairs, and if that second belief turns out to be incorrect, then the party may then be unsure whether the subject matter of the original plea is then true of false.
142. I caution against attempting conditional pleas like this, but if your client is tempted to plead in this manner, do so infrequently and with extreme care.
143. Where a denial goes merely to the existence of a contested event then the matter might simply be dealt with as: “The allegation is denied, believing it to be untrue, because the event alleged did not occur”.
144. This creates a simple joinder between the allegations of the plaintiff and the defendant, and to that extent it will not require a plaintiff to further reply.
145. But in many (probably most) cases more information is required from a defendant about the basis of any belief that an allegation is untrue.
146. In those situations the appropriate response is to say something like: “The allegation is denied, believing it to be untrue, for the reasons set out in the following subparagraphs: …”
147. This type of pleading, while tedious for the pleader, certainly serves to narrow the issues and minimises surprise at trial.
148. Further, in many cases, this form of pleading may require a plaintiff to reply to the new factual allegations made by the defendant, to avoid any risk of a non-admission arising under rule 168(1) UCPR.
149. This is discussed further later in this paper.
150. Recall, that a non-admission will prevent a party from leading evidence on that point (unless the evidence is relevant for allegations made in another portion of that party’s pleading).

Form of Non-Admissions

151. Rule 166(3) sets out the only ground for pleading a non-admission.
152. It requires three conditions to be met:a. the party has made inquiries to find out whether the allegation is true or untrue; andb. the inquiries for an allegation are reasonable having regard to the time limited for filing and serving the defence or other pleading in which the denial or non-admission of the allegation is contained; andc. the party remains uncertain as to the truth or falsity of the allegation.
153. The non-admission must (as it is with denials) also be accompanied by a “direct explanation” for the belief why the allegation cannot be admitted.[23]
154. Again, a practice has evolved where many lawyers repeat, for each non-admission: “Paragraph XX of the statement of claim is not admitted as, notwithstanding reasonable inquiries, the defendant remains uncertain as to the truth or falsity of the allegation because…”
155. Nothing in the rules requires these incantations to be made on each occasion, provided a fair construction of the pleading is that the truth of the matter is not within the means of knowledge of the pleader.[24]
156. In such cases the matter will not be interpreted as a deemed admission.[25]
157. This is consistent with the overriding philosophy of the UCPR includes, in sub-rule 5(2): “…these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.”[26]
158. That said, it is prudent to express the pleader’s intent clearly, for the reasons discussed under the prior heading.
159. Occasionally practitioners will plead a non-admission followed by an explanation such as “…as it is a matter to be determined by the court”.
160. This most often occurs where a defence or reply traverses an allegation that is the subject of competing expert opinions, or something involving a matter of construction.
161. In Pollock v Thiess Ltd [2014] QSC 22 McMeekin J stated (emphasis added):

“[10]  In case the profession is in any doubt — and the explanation for the pleading was said to be the adoption of the firm’s usual practise — I should immediately observe that pleading that a matter that is the subject of dispute “is a matter to be determined by the court having regard to the entirety of the evidence and application of relevant legal principles” should never appear, at least in supposed compliance with the requirements of r 166(4). No doubt the observation is accurate — all issues in dispute are “to be determined by the court having regard to the entirety of the evidence and application of relevant legal principles” — but the pleading does not meet the test that the relevant rule lays down.”

162. The advantage of a non-admission is that the UCPR specifically contemplate that it may be a temporary plea, and specifically require the non-admission to be replaced if later inquiries so justify, with an admission or denial in an amended pleading.
163. In short, if later inquiries provide sufficient basis to replace non-admission with a denial, it is not attended by the same difficulty as attempting to withdraw an admission.

Reply to Defence

164. In most jurisdictions a reply is only required where some affirmative defence is asserted, such as:a. limitation;b. contributory negligence;c. comparative liability;d. voluntary assumption of risk;e. etc.
165. Otherwise an implied joinder of issue usually arises.
166. Under the UCPR the situation is quite different.
167. Here a formal reply is usually required (or at the least, prudent) even if no affirmative defence is asserted.
168. This is because of the combined effect of rules 166 and 168(1) UCPR.
169. Recall, that every defence will contain denials, and those denials will be accompanied by an explanation of the defendant’s reasons for the belief that the allegation is untrue.
170. There may be valid arguments about whether any or all of those reasons comprise ‘material facts’ (as if not, then there is no need to plead in reply).
171. A defendant’s statement of belief that an allegation is untrue is not itself a fact in issue in the proceedings, and the defendant’s reasons for that belief therefore will not acquire the status of material facts simply by being identified in the defence.
172. But sometimes they may be material facts regardless.
173. The answer will turn on the type of the reasons given for the defendant’s belief, and how those reasons are articulated in the defence.

“…if the direct explanation given by a defendant is that the alleged fact is so inconsistent with other matters that the defendant believes it to be untrue, the defendant should plead those other matters by way of response…”

174. In Cape York Airlines Pty Ltd v QBE Insurance (Australia) [2009] 1 Qd R 116, Daubney J observed:

“[29] The direct explanation itself, clearly enough, is not a statement of a material fact for the purposes of r 149. It may be, however, that the nature of the direct explanation of the party’s belief that an allegation is untrue necessarily compels the party to plead, in compliance with r 149, the material facts (not evidence) on which it will rely to controvert the allegation or other matters to prevent the opponent being taken by surprise. Thus, if the direct explanation given by a defendant is that the alleged fact is so inconsistent with other matters that the defendant believes it to be untrue, the defendant should plead those other matters by way of response, either as material facts under r 149(1)(b) or as matters required to be stated to prevent surprise under r 149(1)(c). On the other hand, if a party’s direct explanation is, for example, that it believes that a particular event simply did not occur, it may, depending on the case which it would seek to advance at trial, not be necessary to plead any other matters.”

175. His Honour further stated at [36]:

[35]  If anything, his Honour’s judgment reinforces the necessity for a defendant to observe the distinction between, on the one hand, the ‘direct explanation’ required under rule 166(4) and its obligation, under rule 149, to plead the material facts on which it will rely at trial and other matters necessary to prevent surprise to the opponent. The “direct explanation”, understood as a subjective exposition in the manner I have described above, will not of itself constitute a further issue for determination at trial. A denial in a defence puts in issue the fact alleged in the statement of claim to which the denial is a response. If a defendant, when putting on its defence, pleads further material facts or matters to prevent surprise, it is then for the plaintiff to respond in accordance with Chapter 6 Part 4 of the UCPR, and, to the extent that the plaintiff’s response to particular allegations by the defendant consists of denials or non-admissions, my observations above apply with equal force.

176. For this reason, in many instances (perhaps most) a prudent plaintiff is best advised to avoid the risk of inadvertent deemed admissions arising, and reply to the defendant’s allegations as if they are material facts.
177. Once a reply is filed then it (and not the defence) becomes the “last pleading filed and served before the pleadings close” under r 168(1). 
178. Accordingly, a plaintiff cannot then rely on rule 168(1) (deemed non-admission) applying to the defence.
179. This means that if a plaintiff files a reply, they must carefully respond to each new allegation of fact made in the defence, by either denying, or not-admitting that fact, to avoid the risk of a deemed admission arising under rules 166(1) or 166(4) UCPR.

Numbering, Headings, Table of Contents, Diagrams

180. Other formal requirements of pleadings are few.[27]
181. As to the internal content (that is, the parts containing the allegations of material facts and particulars) all that is required is that the pleading be:a. paginated; andb. divided into consecutively numbered paragraphs and, if necessary, sub paragraphs.
182. In simple cases that is sufficient.
183. In more complex cases it may assist to provide headings, a table of contents, and (rarely) even footnotes.
184. Headings may be used to identify or introduce the legal categories relevant to specific pleaded facts (such as duty, breach, causation, damages, etc.).[28]
185. It is permissible, indeed sometimes advantageous, to attach diagrams, photos, or even documents to pleadings.
186. A picture can be worth a thousand words.[29]
187. For example, the pleading in a clothing copyright infringement case may assisted by photographs of original and the infringing designs.
188. Similarly, a dispute between adjoining owners of land over access, or building infringement, etc, may be assisted by photos and survey diagrams.
189. Actions involving dangerous machinery or defective products are other instances where a properly pleaded diagram or photo can often assist.
190. Care must be taken to ensure the allegations go no further than to describe, as material facts, that the photo or diagram represents features that existed at the relevant date, to deprive the opponent of the opportunity to make a valid denial or non-admission.
191. For example, if your client is clear that a photo truly represents the condition of a thing at the relevant time, then it is appropriate to say, as a material fact: “The photo attached as annexure “A” depicts the condition of the XXXX at the time of the accident”.
192. Finally, always strive for simplicity when it comes to paragraph and subparagraph numbering.
193. It should rarely be necessary to go beyond two levels of subparagraphs, and at the most, try never to go beyond three.
194. It makes no sense to minimise the use of words (by excessive nested subparagraphs) if it is at the expense of meaning or clarity.
195. Overuse of nested sub-paragraphs can make a pleading difficult to follow.
196. Plead each material fact separately and simply.
197. Try not to use 1.1, 1.1.2 type sub-paragraph numbering (although I used this for many years).
198. I now consider it is irritating, wastes space (as it requires excessive indenting), and can be hard to follow.
199. Always test your pleading by asking “can I simplify this?”

“What is the problem, the doubter asks? The answer is that sometimes the pleader, to use a venerable idiomatic expression, “can’t see the wood for the trees”…”

Narrative Pleadings

200. In Graham & Linda Huddy Nominees Pty Ltd & Anor v Byrne & Ors [2016] QSC 221 Jackson J at noted (emphasis added):

“[2]  Any student of pleading will recognise that there is a tendency in modern pleadings to tell a long story, narrative style, with not enough regard for the fundamental rule that material facts, but not the evidence by which the facts are to be proved, should be pleaded, together with necessary particulars of those facts.

[3]  What is the problem, the doubter asks? The answer is that sometimes the pleader, to use a venerable idiomatic expression, “can’t see the wood for the trees”…”

201. Simplicity is a virtue in pleading.
202. For example, never plead something like this:

“On the 27 June 2023 the defendant, knowing that the plaintiff had not been warned of the material risks of injury to the sciatic nerve, operated on the plaintiff to replace his right hip, and in the process irretrievably damaged the plaintiff’s sciatic nerve … ”.

203. Each material fact should have its own paragraph (or if relevant, sub paragraph).[30]
204. Each allegation of fact should be expressed in a simple and concise way.
205. The rules require this.
206. But regardless, the use of composite allegations gives your opponent more scope to deny or not admit.
207. When you plead directly and simply you force your opponent to respond in a similar way.
208. Plead in a way that forces your opponent to make appropriate admissions.

Pleading Material Times

209. When pleading “at all material times” make sure you define what times are in fact material to each allegation.
210. Limit this sort of allegation to specific defined times and events.
211. Where there are a number of events giving rise to a claim, then it is often useful to plead them under a separate heading, such as for example “Liability Events”.
212. Then, when referring to the material times you can clearly say: “at all times material to the events described under the heading ‘liability Events’”.
213. Your opponent should never have to assume what times or events you are referring to.
214. It may be the case that the material times are different for different facts, so be specific with what events you refer to, and what times are material to that event.

Conflating Duty and Breach

215. Always plead the material facts going to both duty and breach separately.
216. This advice is especially important in a novel case.
217. A duty of care will always be defined at a higher and more general level of abstraction than the facts relevant to its breach.
218. See, in this context, comments by Hayne J in CAL No 14 Ltd v Scott (2009) 239 CLR 390 at 416:

Because the duty relied on in this Court was framed so specifically, it merged the separate inquiries about duty of care and breach of duty.  The merger that resulted carried with it the vice of retrospective over‑specificity of breach identified in Romeo v Conservation Commission (NT) and in the diving cases of Vairy v Wyong Shire Council, Mulligan v Coffs Harbour City Council, and Roads and Traffic Authority (NSW) v Dederer.  The duty alleged was framed by reference to the particular breach that was alleged and thus by reference to the course of the events that had happened.  Because the breach assigned was not framed prospectively the duty, too, was framed retrospectively, by too specific reference to what had happened.  These are reasons enough to reject the formulation of duty advanced in argument in this Court.

Avoid Hyperbole

219. Plead only the facts you need to establish your cause of action.
220. For example, avoid over-saucing allegations about a defendant’s acts or omissions to make them sound bigger, more consequential, or having some pejorative connotation that it is unnecessary for you to prove.
221. For example: “the defendant administered a dose grossly in excess of that prescribed…”
222. If it is sufficient to prove that the dose exceeded what was prescribed, but it is not necessary to prove that it was grossly in excess of that level, then why allege it?
223. Exaggerated allegations give your opponent wriggle room to deny or not admit in response.
224. Make allegations that put the opponent on the hook. Do not frame allegations in a way that will encourage your opponent quibble.
225. Your pleading is not the place for rhetoric.
226. Leave that for submissions (if then).

Never be Rude or Offensive

227. This should be obvious to everyone.
228. Do unto others as you would have them do unto you.
229. Always strive to be detached and professional, even in the face of provocation.

Respond Only to Facts Alleged

230. When pleading in response (for example, when defending or replying):a. analyse exactly what is alleged against your client; andb. plead only to that allegation.
231. In other words, never assume something that is not asserted as a material fact.
232. Otherwise you risk admitting to something that is not alleged, or not responding to the specific allegation that is actually made against your client.
233. The exception to this is if the opponent has inadvertently made an error of a typographical nature.
234. Do not be pedantic about typographical or numbering errors in an opponent’s pleading.
235. Everyone makes these mistakes, and they are meaningless in the overall scheme of things.

Repeats and Relies Upon

236. It is common for a plaintiff to reply to an allegation in a defence by saying: “the plaintiff repeats and relies on paragraphs XXX of the statement of claim”.
237. Once an allegation is made in the statement of claim then there should be little need to repeat it (unless it is clearly necessary as a reason for a particular denial or non-admission).
238. It is common in defences for earlier denials to be referred to in later paragraphs of the same document.
239. For example: “The defendant denies the facts alleged in paragraph XX of the statement of claim, believing them to be untrue, for the reasons referred to in paragraph YY above”.
240. This avoids the need to continually repeat the same facts on multiple occasions throughout the defence.
241. When replying, it is acceptable to reply once, and thereafter refer back to the earlier paragraphs when required.
242. For example, a suitable format is: “The Plaintiff denies the facts alleged in paragraph XX of the defence, believing it to be untrue, for the reasons already traversed at paragraph YY above”
243. That said, requires very careful proofing before filing as, not uncommonly, paragraphs are rearranged in the drafting process and numbering goes astray.
244. Also, continually referencing other paragraphs of the same document does impose some strain on the reader.
245. In each case it requires balancing brevity and clarity.

The Incomplete Traverse

246. It sometimes occurs that a party incompletely traverses an allegation in their defence or reply.
247. For example, suppose a statement of claim contains an allegation that the defendant breached a duty of care in a number of ways (either by doing something that the defendant ought reasonably not have done, or by omitting to do something that ought reasonably to have been done).
248. If the defendant disputes owing any duty of care, then it is a valid response to deny the existence of any breach on the basis that no duty also means no breach.
249. But if the defendant does not also respond to the specific allegations as to what the defendant is said to have done or omitted to be done, then (depending on the context) there may be an incomplete traverse.
250. That is, the defendant’s denial goes solely to the existence of the duty itself, but not to the facts alleged as to the breach of that duty.
251. If the court finds the defendant did owe a duty of care, then the condition for the defendant’s denial of breach dissipates, and deemed admissions will arise with respect to the allegations that were not traversed.
252. This appears to be a direct consequence of rule 166(4)-(5) UCPR.

253. This also appears consistent with the following observation Cape York Airlines Pty Ltd v QBE Insurance (Australia) [2009] 1 Qd R 116 per Daubney J:

“If, however, the explanation for the denial was not limited to a controversion of the fact but involved the advancement of an affirmative case, one would expect that to be apparent on the pleadings.“

“[36]  For completeness, I should also say that I would not accept in an unqualified way the submission made on behalf of the defendant that a denial of a fact alleged in the statement of claim puts the matter in issue and both sides may lead evidence about it. If, for example, a defendant’s direct explanation for a denial of an allegation of fact was that the matter simply did not occur, then the evidence which the defendant might lead on that issue would be limited to controverting the plaintiff’s evidence. If, however, the explanation for the denial was not limited to a controversion of the fact but involved the advancement of an affirmative case, one would expect that to be apparent on the pleadings.“

254. So beware the incomplete traverse.

Non-Pleading sans Particulars

255. A practice has developed where some lawyers try to avoid pleading to a particular allegation due to some real or imagined absence of particulars.
256. Rule 157 requires pleadings to contain particulars sufficient to define the issues, avoid surprise, enable a party to plead in response and support any matter specifically pleaded under rule 150 UCPR.
257. That stated, a party can usually plead to material facts without first requiring further particulars.
258. This is particularly so where the facts relate to matters about which the pleader already has personal knowledge.
259. My advice is to plead, not prevaricate.
260. Be very careful about invoking rule 157(b) as a basis for not pleading to a specific allegation.
261. The court may take a different view to you, and you will then be faced with a deemed admission that will be very difficult to retract (this is discussed below).
262. The appropriate course, in any dispute over particulars, is to apply for further and better particulars.

Beware Blanks in Draft ‘Settled’ Pleadings

263. Sometimes counsel will settle a pleading but leave blanks to be inserted by the briefing solicitor.
264. This is occasionally necessary, due to urgency, or perhaps simple absence of sufficient information.
265. For example, counsel may be asked to draw the liability parts of a statement of claim but leave it to the solicitor to insert particulars of damages.
266. Never allow an incomplete document to be filed and served.
267. It makes you look like a total idiot.
268. If you ‘settle’ incomplete documents then you can be certain that eventually one of them will be filed and served in that condition.
269. My advice to counsel is never allow your name to appear on the bottom of an incomplete document.

Withdrawing Admissions

270. An admission, including a deemed admission, may only be withdrawn by the leave of the court.[31]
271. Absent leave, the matter cannot be rectified simply by filing an amended pleading.
272. Any decision whether to permit the withdrawal of an admission is discretionary.[32]
273. The court will not permit an admission to be withdrawn without being satisfied that the subject matter of the admission is truly contested.[33]
274. That usually will require sworn evidence as to:[34]a. the circumstances in which the admission was made;b. proof that there is a real dispute about the subject matter of the admission.
275. Other factors relevant to the exercise of the court’s discretion are:[35]a. delay;b. prejudice to the parties (including other parties in the same proceeding).
276. Where a party wishes to withdraw an admission and substitute it with a non-admission, the sworn evidence should show:[36]a. what inquiries have been made to ascertain whether the allegation is true or untrue;b. that those inquiries were reasonable in the circumstances.

Conclusion

277. It is often said that pleading is an art not a science.
278. I am not sure that is correct.
279. But if pleading is an art form, then strive for to produce a Vermeer, not a Basquiat.
280. I believe pleading is a discipline that must be practised.
281. It requires clear logical analysis.
282. It assists, if you have time, to put your completed draft aside for the night before you do any final proofing.
283. That eliminates change blindness and permits your brain to process further.
284. I have never done a pleading that I did not want to change the next day.
285. Also, I often find it difficult to “settle” a pleading that has been drafted by someone else.
286. I find it difficult to unsee what was previously drafted.
287. While I read the prior draft, I will often then start again from scratch.
288. That is probably something unique to me.

[1] Tony Morris QC, Seven Deadly Sins of Pleading, Hearsay, Issue 32, December 2008. Tony’s paper was reprinted again in Hearsay Issue 90, Dec 2022. It is available on the web. Also see the good paper by Justice Estcourt of the Supreme Court of Tasmania entitled Pleading Tips and Traps, which incidentally, references and reinforces many of the observations in Tony’s paper.

[2] While Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806, 156 ALR 169.

[3] While Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806, 156 ALR 169.

[4] Rule 149(1)(b) UCPR.

[5] See Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2001) 54 NSWLR 135, per Hodgson JA (with whom Mason P and Handley JA agreed) at [20].

[6] Rule 157 UCPR.

[7] Rules 155 and 158 (damages), 159 (interest),

[8] Rule 160 UCPR.

[9] Rule 160 UCPR.

[10] Although, admittedly, the distinction is often blurred.

[11] Tony Morris QC, Seven Deadly Sins of Pleading, Hearsay, Issue 32, December 2008.

[12] See, for example, Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 at [20]-[21].

[13] This is an abridged summary of an example referred to in Tony Morris’ paper. I refer the reader to his paper.

[14] See rules 165, 166 and 168 UCPR.

[15] Here refer to the prohibition in section 11(3) of the Civil Liability Act 2003 Qld.

[16] See also Haggarty v Wood [2013] QSC 327 at [36]-[38], Platt v Kollosche Enterprises [2015] QSC 23, and Hookey v Manthey (2020) 4 QR 371, [2020] QSC 125  at [126]-[136].

[17] See, for example, Graham & Linda Huddy Nominees Pty Ltd & Anor v Byrne & Ors [2016] QSC 221 per Jackson J at [28-29].

[18] Rule 457 UCPR.

[19] Jade Barnet citations report 16 January 2023.

[20] Rule 166(1) UCPR.

[21] Rule 166(4) UCPR.

[22] Green v Pearson [2014] QCA 110, per Jackson J at [19]. In the earlier case of Australian Securities & Investments Commission v Managed Investments Ltd & Ors No. 3 (27 March 2012) [2012] QSC 74; 88 ACSR 139, Fryberg J at [17] felt it probably was possible to alternatively deny and non-admit.

[23] Rule 166(4) UCPR.

[24] Baker v Linklater [2007] 1 Qd. R. 405, per Muir JA at 420 (with whom Jerrard JA and Douglas J agreed). See also Aimtek Pty Ltd v Flightship Ground Effect Pte Ltd [2014] QCA 294 at [7-9] per Fraser JA (with whom Holmes JA and Morrison JA agreed).

[25] Ibid.

[26] Ibid.

[27] Rule 146 UCPR.

[28] See for example comments in Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44; (2001) 54 NSWLR 135, Hodgson JA (Mason P and Handley JA agreeing) at 142-143 [20]-[21].

[29] An expression is attributed to Frederic R Barnard, Printer’s Ink, 1921.

[30] Rule 146(1)(f) UCPR.

[31] Rule 188 UCPR.

[32] Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455 per de Jersey CJ at 457.

[33] Hanson Construction Materials Pty ltd v Davey (2010) 5 BFRA 59; 79 ACSR 668; [2010] 246 per Chesterman JA (with whom Muir JA and Applegarth J agreed).

[34] Hansen, per Chesterman JA at [15-16].

[35] Green v Pearson [2014] QCA 110 at [34].

[36] Hartmann v Pilkington [2012] QSC 254, per Margaret Wilson J at [20].