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History

The Bill appears to be a legislative response to the Visy Cartel case.² In that case, a penalty of $36 million was ordered by the Federal Court against Visy Board Pty Ltd and its director and owner, Mr Richard Pratt as a result of Visy Board engaging in price fixing and market sharing contraventions of the Trade Practices Act 1974 (Cth) with its rival, Amcor Limited.

In January 2008, the Commonwealth Government released an Exposure Draft Bill setting out a number of proposed amendments to the TPA in relation to criminalizing serious cartel conduct. The introduction of the Bill has not happened overnight. Readers may be familiar with the recommendations by the Dawson committee in 2003 that included, inter alia, criminal sanctions for serious cartel conduct including imprisonment.

However, numerous submissions were received and as a result, the Bill was revised.

Key parts of the proposed legislation 

The definition of a cartel provision is widely defined in the Bill as a provision in a contract, arrangement or understanding between two or more competitors which:

• has the purpose or effect of fixing, controlling or maintaining prices for goods or services supplied or acquired by any of the parties or prices for goods or services re-supplied by customers of one or more of the parties to the cartel;
• the purpose of directly or indirectly preventing, restricting or limiting the production of goods or the capacity to supply services, or of allocating customers or suppliers or territories or bid rigging.³

In each case, a corporation commits a criminal offence where the fault element of knowledge or belief is established.

The Government has decided to send a clear message about cartel conduct. The maximum penalties for the offences are:

• for an individual — a maximum term of imprisonment of ten (10) years and/or a maximum fine of $220, 000⁴; and
• for a corporation — a fine that is the greater of $10 million or three times the value the benefit from the cartel, or where the values cannot be determined, ten (10) percent of annual turnover.⁵

The penalties are some of the toughest in the Organisation for Economic Co-operation and Development (OECD) and are similar to jurisdictions such as the United States, the United Kingdom and Canada, where criminal sanctions for serious cartel conduct already exist.

The Government will introduce a parallel scheme which will impose civil penalties for serious cartel conduct that contain the same elements as the new criminal offences.⁶ Criminal offences, of course will require proof of the elements of the offence beyond a reasonable doubt. But the civil prohibition penalties require proof on the balance of probabilities.

Although the parallel criminal⁷ and civil prohibitions⁸ could give rise to double jeopardy concerns, the Government will also enable civil proceedings to be postponed until criminal proceedings are completed. If the defendant is convicted, the civil proceedings would be discontinued.

It is submitted that cartels are generally covert arrangements and discovery and proof of the existence of a cartel is certainly more difficult to investigate as opposed to uncovering other forms of corporate misconduct. Therefore, the proposed legislation continues provisions which facilitate proof of the existence of a cartel.⁹

Telephone Interception Powers 

The Government also has decided to amend the Telecommunications (Interception and Access) Act 1979 (Cth) to enable telecommunications interception powers to be used in addition to other available tools to investigate breaches of the cartel offences. Increasing the penalty for individuals to a ten (10) year jail term brings the cartel offences within the threshold requirements for accessing such powers.

Joint Venture Defence 

The Bill provides for in clause 44ZZRO for a defence to criminal and civil actions if:

• the parties to the contract are, or will be, carrying on a joint venture for the production or supply of goods or services; and
• the cartel provision is for the purposes of that joint venture.

It is noted, however that the existing exceptions under section 51 of the TPA will continue to operate.

As noted, the Bill is expected to be passed later this year or early 2009 and it will have a significant impact on individuals and corporations that engage in cartel behaviour.

Roly O’Regan

Footnotes 

1. The Bill can be accessed at www.treasury.gov.au . Readers may also be interested in reading the submissions received by the Government – www.treasury.gov.au/content
2. Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No3) (2007) 244 ALR 673 per Heerey J
3. Clause 44ZZRD of the Bill
4. Clause 44ZZRF(4) of the Bill
5. Clause 44ZZRF of the Bill
6. Clauses 44ZRJ and 44ZRK of the Bill
7. The Commonwealth Office of the Director of Public Prosecutions will be charged with the responsibility of prosecuting offenders.
8. The Australian Competition and Consumer Competition will continue to investigate serious cartel conduct.
9. This includes issuing section 155 notices requiring the production of documents, the furnishing of information, and/or the attendance of individuals for compulsory examination under oath.

In Lumbers v W Cook Builders Pty Ltd (in liquidation) [2008] HCA 27 (18 June 2008), the High Court considered an appeal from the Full Court of South Australia, where the majority (Sulan and Layton JJ), allowing an appeal from a refusal to grant restitution, adopted a top-down analysis of a claim based on unjust enrichment and failed to take into account the parties’ existing contractual relationships. The case is significant to practitioners because it gives guidance on how to approach and plead claims based on unjust enrichment.

Facts

In 1993, W Cook & Sons Pty Ltd (“WC Sons”) entered into an oral, costs plus building contract with Matthew and Warwick Lumbers to build a house. The house was completed in May 1995 to the Lumbers’ general satisfaction. As a result of an informal restructure of the relevant group of companies in early 1994, the plaintiff, W Cook Builders Pty Ltd (“WC Builders”), performed most of the building work required under the contract. The Lumbers never requested services from WC Builders and they had no notice or knowledge of any change from WC Sons.

In June 1998, WC Builders went into liquidation and, in 1999, its liquidator requested the Lumbers pay to it the difference between the cost of the construction and the payments made by the Lumbers to WC Sons: payments by the Lumbers fell short about $180,000. Later, this claim increased by about $90,000 to include a supervision fee allegedly due under the contract. The Lumbers refused to pay and WC Builders commenced proceedings against them seeking damages based on an equitable assignment of the contract and, alternatively, restitution calculated on a quantum meruit basis.

In 1999, in mysterious circumstances, WC Sons notified the Lumbers it had no claim against them under the contract.

Earlier decisions

The trial judge dismissed WC Builders’ claim to damages because there was no evidence of an assignment of the contract from WC Sons to WC Builders. The trial judge found WC Builders had done the work either under an agreement with, or at the request of, WC Sons. The trial judge dismissed WC Builders’ claim for restitution because the Lumbers remained liable to WC Sons under the contract for all work completed, and thus had not been enriched. There was also no suggestion WC Builders laboured under a mistake.

By a majority, the Full Court allowed WC Builders’ appeal against the dismissal of its claim based on unjust enrichment. Whilst the majority accepted the principle that restitution wouldn’t be awarded if the entitlements and obligations of the parties were governed by contract, they rejected the submission that WC Builders’ claim in restitution, if upheld, would override the existing contractual arrangement between the Lumbers and WC Sons. The majority explained that the claim in restitution would not interfere with that contractual relationship because WC Sons had accepted it had no claim against the Lumbers under the contract and WC Sons had not performed its obligations under the contract. The Full Court identified the real issue as being whether WC Builders could recover in restitution against the Lumbers in circumstances “where [WC] Builders did the work and the Lumbers have the benefit of the work and have not paid for it”.

After considering the principles applicable to, and elements of, unjust enrichment, particularly, free acceptance and incontrovertible benefit as exceptions to the principle that services rendered without prior request will not be regarded as beneficial, the Full Court concluded that, having received a house, having been spared the full expense of that house, and at all times expecting to pay for the services rendered, the elements of unjust enrichment had been made out. Accordingly, the majority concluded WC Builders was entitled to recover on a quantum meruit basis. The Lumbers appealed.

High Court’s decision

In reasons given by Gleeson CJ and jointly by Gummow, Hayne, Crennan and Kiefel JJ, the High Court unanimously allowed the appeal and set aside the orders of the Full Court.

Gummow, Hayne, Crennan and Kiefel JJ were critical of the majority of the Full Court’s “topdown reasoning” and their failure to properly analyse the legal relationships between the parties. They considered that in claims based on unjust enrichment, if an analysis based only on “benefit”, “expense” and “acceptance” together with considerations of unconscionability were adopted, there would be created a serious risk that the result would be discordant with accepted principles and incoherent with other branches of the law.Referring to Deane J’s reasons in Pavey & Matthews, unjust enrichment was said to be a legal concept unifying a variety of distinct categories of cases and, whilst it was of assistance in determining whether the law should recognise a new or developing category of case where restitution would be granted, it was not itself a principle capable of direct application. In all cases, it was necessary to proceed by reference to existing categories of cases in which an obligation to pay compensation had been imposed. This view had earlier been endorsed by Gummow J in Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516, 544 [72]-[75].

The majority of the Full Court failed to have due regard to the existing contractual relationships because they were unduly focussed on the relationship they thought should be found to exist between the Lumbers and WC Builders. Their approach caused them to erroneously impose upon the Lumbers an obligation to make restitution in circumstances where that obligation constituted a “radical alteration of the bargains the parties struck and of the rights and obligations which each party thus assumed”. The majority of the High Court held that, on a proper analysis of the facts, there remained a valid and enforceable contract between the Lumbers and WC Sons and any benefit obtained by the Lumbers arose either from that contract or from WC Sons’ failure to enforce that contract. It was not as a result of anything the Lumbers sought to have WC Builders do or refrain from doing. On this analysis, WC Builders’ claim didn’t fall within a recognised category of case where compensation or restitution should be granted.

In separate reasons, Gleeson CJ emphasised the importance of the contractual arrangements between the parties and the maintenance of the allocation of risk thereby produced. In his view, on a proper analysis of the facts, WC Builders had performed services pursuant to an agreement with, or at the request of, WC Sons, and WC Sons had entered into a contract with the Lumbers for the provision of those services. The majority of the Full Court ignored this. Gleeson CJ concluded that any enrichment or benefit flowing to the Lumbers arose under the contract with, and at the expense of, WC Sons. If any party had been enriched at the expense of WC Builders, it was WC Sons.

What should we take away from this case?

The decision of the High Court in Lumbers v W Cook Builders Pty Ltd is not groundbreaking in the sense that it adopted and applied the principle that claims for restitution arising in a contractual context should respect the consensual allocation of risk and benefits. The decision is also consistent with the view that unjust enrichment is inherently subsidiary in nature and unnecessary when a claimant has an existing, alternative right to recover the alleged enrichment.

This case has greater significance at a practical level. In all claims for restitution, practitioners should be mindful of the subsidiary role unjust enrichment plays and closely examine any existing contractual relationships that govern the allocation of risk between the parties. It is not good enough for claims to be presented merely in terms of the elements of unjust enrichment. Generally, it is an error to begin with theory and seek to explain past decisions and to pigeonhole and discard facts in terms of that theory. Instead, a bottom-up approach should be adopted whereby, save in those rare cases when a claimant seeks to pursue a new or developing category of case, the facts of a case are analysed with a view to identifying the applicable category of case where an obligation to make compensation has been recognised.

Christian Jennings
T. J. Ryan Chambers 

Facts

The Plaintiff was 8 years old when, in 1989, he was a member of a Tae Kwon Do class at a local hall in Townsville. The class, including the Plaintiff, was taken on a run by one Dobie at 7:30pm when the Plaintiff was struck and severely injured by a vehicle driven by Hill and insured by Suncorp. Dobie died in 2001, 6 years before the trial. The Plaintiff’s action for damages proceeded to trial only against Hill, Suncorp and Mr Ivanov, who the Plaintiff claimed was the owner and operator of the Tae Kwon Do Academy.

In December 2006, Ivanov applied to the Townsville Supreme Court in an interlocutory application to have the admission in his defence that he was the owner and operator of the Academy withdrawn. That application was unsuccessful.

In August 2007, the matter went to trial. The learned trial judge² found that Hill’s failure to slow down and/or sound his horn as he approached the Plaintiff and the other members of the group was negligent and a cause of the Plaintiff’s injuries. His Honour also found that because of the admission in the pleadings that Ivanov was the owner and operator of the Academy, he was the person with ultimate responsibility for the conduct of the class. Whilst the Plaintiff did not make out a case that Ivanov employed Dobie, he was entitled to rely on Ivanov’s breach of a non-delegable duty as the person ultimately responsible for the safe conduct of the class and that he had failed to ensure that reasonable care was exercised in the performance of the activities involved in the classes. The learned trial judge ordered Ivanov to pay one-half of the judgment sum which exceeded $730,000.00 plus costs. Ivanov appealed against the judgment.

The Issues on Appeal

At the appeal, Ivanov sought leave to obtain an extension of time to appeal against the interlocutory order refusing leave to withdraw the admission.He also appealed against the learned trial judge’s findings of a non-delegable duty.

The application for an extension of time to appeal against the interlocutory order was refused on the basis that there was no justification to excuse the significant delay from the date of the application. In any event, it was held that there was no error made in that exercise of discretion. The primary focus of the appeal was on Ivanov’s argument that he did not owe the Plaintiff a non-delegable duty of care.

The Trial Judge’s Findings

At the trial, His Honour found that Ivanov, as owner and operator of the class, owed a non-delegable duty to those enrolled in the class to provide reasonable care to protect them from harm. This was in spite of the fact that a non-delegable duty of care was not specifically pleaded. His Honour referred to the principles set out in Introvigne³ and Kondis v. State Transport Authority⁴ and determined that the situation was analogous to the duty owed by a school to its pupils.

Ivanov conceded in evidence that he would not have acted as Dobie did in not gathering all the students together to cross the road as one group under the direction of the instructor and that taking children as young as 8 for a run along the side of a road at dusk in a class of 10 or 12 students, was unsafe. Based on this and other evidence, he found that Ivanov had failed to ensure that reasonable care was taken in the performance of activities associated with the classes and was therefore liable.

The Decision of the Court of Appeal

The leading judgment was written by the President⁵. Her Honour traced the law relating to non-delegable duty of care. Reference was made to Ramsay v. Larsen⁶, a case involving a 12 year old student injured when he fell out of a tree at the state school he attended. Kitto J’s analysis of the case has provided the Australian source for the tortious concept of breach of a non-delegable duty of care. His Honour noted:

“… the duty to take care of a pupil is not normally the personal duty of the teacher alone. In the absence of a special arrangement to the contrary, it is, I think, the necessary inference of fact from the acceptance of a child as a pupil by a school authority, whether the authority be a government or corporation or an individual, that the school authority undertakes not only to employ proper staff but to give the child reasonable care.”⁷

The High Court in The Commonwealth v. Introvigne⁸ relied on and expanded upon this analysis of the non-delegable duty of care. Mason J (as he then was), with whom Gibbs CJ agreed, noted:

“… the concept of personal duty, performance of which is incapable of delegation, has been strongly criticised, especially outside the master and servant relationship where its introduction was designed to overcome the consequences of the doctrine of common employment. … this criticism fails to acknowledge that the law has, for various reasons, imposed a special duty on persons in certain situations to take particular precautions for the safety of others, e.g. the occupier of premises.

There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. … the immaturity and inexperience of the pupils and their propensity for mischief suggests that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants.”⁹

Brennan J (as he then was) distinguished the duty from vicarious liability:

“… it is not a case where liability is sheeted home by attributing a teacher’s act to the school authority. The present case is a case of a negligent omission by a school authority to take reasonable steps to protect a pupil. …”¹⁰

In Kondis v. State Transport Authority, a majority of the High Court found that the independent contractor’s failure to adopt a safe system of work constituted a failure by the independent contractor’s employer to satisfy a non-delegable duty to provide a safe system of work. In respect of a non-delegable duty of care, it was noted that:

“The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children who it accepts into its care. … in these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care would be exercised …”¹¹

In Burnie Port Authority v. General Jones Pty Ltd, a joint judgment of the High Court approved the above observations and labelled the element common to situations where non-delegable duties arise as the “central element of control”, adding:

“Viewed from the perspective of the person to whom the duty is owed, the relationship or proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person.”¹²

In New South Wales v. Lepore; Samin v. State of Queensland; Rich v. State of Queensland¹³, the High Court declined to extend the non-delegable duty of a school authority to intentional criminal conduct committed by a teacher employed by the school authority. As Gaudron J put it:

“Thus, to describe the duty of a school authority as non-delegable is not to identify a duty that extends beyond taking reasonable care to avoid a foreseeable risk of injury. It is simply to say that, if reasonable care is not taken to avoid a foreseeable risk of injury, the school authority is liable notwithstanding that it engaged a ‘qualified and ostensibly competent’ person to carry out some or all of its functions and duties.”¹⁴

Her Honour, the President, succinctly summarised the High Court’s exposition of the concept of a non-delegable duty in the various cases as follows:

“The non-delegable duty of care is a special duty to ensure that reasonable care is taken for the safety of those to whom it is owed. It is not vicarious; it is a personal duty, breach of which requires fault. It is an onerous duty in that if a Defendant owing the duty to a Claimant does not take reasonable care to avoid a foreseeable risk of injury which eventuates causing damage to a Claimant, then liability cannot be avoided by the Defendant engaging another to carry out the Defendant’s responsibilities.

Whether the duty arises in a particular case would depend on the relationship between Claimant and Defendant. … factors which support the existence of the duty include whether the relationship is one where the Defendant has a high degree of control, the Claimant is vulnerable, or the claimant has a special dependence upon the Defendant. The categories of situations where a non-delegable duty of care is owed are not closed, but courts should exercise care in extending them.

… the most analogous to the present facts is that of a school authority and pupil as discussed in Introvigne. A case where the Introvigne category has been applied to a different but analogous situation not dissimilar to the present is Robertson v. the Hobart Police and Citizens Youth Club Inc.¹⁵. There, the 12 year old Robertson was injured on a trampoline at the Defendant’s premises. Relying on Introvigne, the Defendant’s relationship to Robertson was found to be analogous to that of a school teacher and pupil, the Defendant having ‘assumed that duty’.¹⁶“ 

Her Honour, the President, went on to find that it did not matter that the Plaintiff had not specifically pleaded that Ivanov owed a non-delegable duty of care to him. She pointed out that the purpose of pleadings was to ensure that each party knew the case to be met at trial and that the pleadings clearly alleged that Ivanov was the owner and operator of the Academy and that he would do all things reasonably necessary to ensure the Plaintiff’s safety whilst he was attending the Academy and participating in its activities. The President was of the view that these pleaded facts were sufficient to raise the claim of breach of non-delegable duty of care. She pointed out this was well understood by Ivanov and his lawyers and is why he attempted to withdraw his admission in late 2006.

The President was of the view that the learned trial judge was entitled to find that Ivanov owed the Plaintiff a non-delegable duty of care. He was an 8 year old boy. The booklet given to the Plaintiff welcoming new members described the Academy’s instructors in glowing terms, including “highly qualified … highly skilled”. The Plaintiff also pledged “to abide by the rules and regulations of the school” and to “obey the instructions of (the) instructors”. Her Honour, the President found that in those circumstances, the Plaintiff’s relationship with Ivanov as owner and operator of the Academy was one of vulnerability on the Plaintiff’s part with Ivanov having a high degree of control of the Plaintiff and the Plaintiff having a high degree of dependence on Ivanov and those to whom Ivanov delegated his responsibility. She pointed out that Gleeson CJ in Lepore noted that¹⁷ the relationship giving rise to a non-delegable duty of care is not limited to that between school authority and pupil but extends to other relationships such as a day care centre for children whose parents work outside the home. Finally, Her Honour stated that if policy considerations are relevant, the existence of a duty in the present case was consistent with the public interest in ensuring children involved in self-improvement activities are not treated negligently.

Her Honour found that the evidence clearly established that the duty had been breached. It was plainly foreseeable that taking an 8 year old boy running along a road at dusk was an activity involving risk requiring special supervision.

Summary

The decision in Fitzgerald v. Hill & Ors is important, because although it does not extend the concept of non-delegable duty of care beyond anything already recognised by the High Court, it is a recent and potent example of the impact of the application of such a duty outside the historically recognised categories¹⁸. There is therefore no reason not to extend the concept of a non-delegable duty to a host of other relationships outside the recognised categories, e.g. Scout halls, PCYC’s, day care centres, holiday care facilities, sporting clubs generally and disabled associations. Indeed, in any relationship where the Claimant is vulnerable, e.g. a child, and the organisation has a high degree of control over the Claimant, the imposition of such a duty may be warranted. However, as the President emphasises, each case will depend on its own peculiar facts and the Courts will exercise care in extending the protection the duty affords. Indeed, His Honour Mackenzie AJA, stated:

“Whether imposition of liability on the basis of a non-delegable duty, having regard to the facts of this case, requires an extension of the principle beyond the limit of situations so far found to give rise to such a duty has caused me some concern. The single judge decision of  Robertson v. Hobart Police & Citizens Youth Club Inc¹⁹ is an example involving an organisation outside the types of organisation to which the authorities specifically relate. The duty of care in Robertson that was critical was not one to supervise at all times but to give proper instructions as to use of a trampoline.”

In the end result, whilst not embracing the extension of a non-delegable duty to relationships outside those previously recognised ones, Mackenzie AJA did not disagree with the outcome of the appeal.

With the modern family becoming busier and with parents becoming increasingly reliant on external facilities to both care for and improve the personal development of their children, one can expect this issue to get more attention from litigators.

Richard Lynch

Footnotes

1. [2008] QCA 283
2. Cullinane J — [2007] QSC 228
3. (1982) 150 CLR 258
4. (1984) 154 CLR 672
5. With Holmes JA agreeing
6. (1964) 111 CLR 16
7. At 28
8. Supra
9. Supra, at 270 – 271
10. Supra, at 280-281
11. Supra, at 687
12. (1994) 179 520 at 551
13. (2003) 212 CLR 511
14. Supra, at 553
15. (1984) Aust Torts Rep, 80-629
16. Supra, at 68,655. At paragraphs [66] – [68]
17. See Lepore at 534 (with Callinan J agreeing)
18. i.e. hospital/patient and school/pupil
19. Supra

Contributors

Peter Ambrose SC
Susan Anderson
The Honourable Justice Peter Applegarth
Peter Bickford
Matthew Brady
Jacoba Brasch
Michael Campbell
Karen Carmody
Sean Cooper
Gary Coveney
Matthew Craswell
James Crowley QC
The Honourable Paul de Jersey AC, Chief Justice of Queensland
Richard Douglas SC
Greg Egan
Dimitrios Eliades
Lisbeth Elvery
Christopher Fitzpatrick
Ken Fleming QC
Louise Floyd
His Honour Michael Forde DCJ
Kim Forrester
Don Fraser QC
Stephen Fynes-Clinton
Sean Gordon
Julian Gruin
Geoff Gunn
Lister Harrison QC
Professor John Hockings
Kevin Holyoak
Darin Honchin
Christopher Hughes SC
David Jackson QC
Christian Jennings
Dominic Katter
Stephen Keim SC
David Laws
Stephen Lee
Stephen Lumb
Richard Lynch
Andrew Lyons
Mark Martin
Jessica McClymont
Garth McEvoy
John McKenna SC
John Meredith
Anthony Morris QC
Doug Murphy SC
Andrew Musgrave
Tim North SC
Dan O’Gorman SC
Roly O’Regan
Adam Pomerenke
Gavin Rebetzke
David Reid
Andrew Rich
Mark Robertson
David Russell QC
Emmanuel Samios
David Schneidewin
Anand Shah
Greg Sheahan
Christopher Smithmyer
Max Spry
Michael Stewart SC
Jann Taylor
Sandy Thompson SC
Roger Traves SC
Samantha Traves
Rebecca Treston
Ken Watson
Ben Whitten

Special Thanks To …

Hearsay is indebted to the Chief Executive Officer of the Association, Dan O’Connor, and to the President, Michael Stewart SC, along with the staff of the Association, the Department of Justice and Attorney-General and the Supreme Court Library for their ongoing assistance and support.

Special mention is also made of Emma Macfarlane, whose tireless work and irrepressible enthusiasm has kept the publication alive, Miichael Liiddy, our featured chambers editor, without whom we would have withered on the vine, and Gregory Hale, our designer, and Brett Young, our website developer, who survived our mostly unreasonable demands with patience and understanding.

I wish everyone the compliments of the Season and look forward to the publication of the next edition — in February 2009.

Martin Burns
Editor

The place is Ntarama. It is a small region south of Kigali, just by what is now the Nelson Mandela Peace Village. But nothing can prepare you for the visually sickening horror that confronts and offends and finally chokes you.

You leave the centre of Kigali and climb a long hill. The road from Kigali is bitumen and is crowded with the business of the day. Vans and trucks are overloaded belching grey and black fumes, a tribute to diesel injectors well overdue for maintenance. But then the rest of the vehicle is as well. The battered rusting hulks are both an analogy, and life blood, of a nation. Life is about getting there and making a living for today; it is ensuring that, tonight, there will be a fire upon which to cook some food.

Bags and bags of charcoal stand in rows waiting for consumers. Consumers of the forests of Rwanda. But there is food. Rwanda is a fertile country, volcanic in origin, with rich red volcanic soil of immense depth. So food is available in many small stalls and shops. Survival demands that there must be a way to make a living and this is one such way. A few pieces of timber, some old galvanised iron, an old sheet of plastic, or even a UN tarpaulin will do. The shop, the stall and the shanty are all open for business. They squeeze every last centimetre of the frontage to the streets as I start to climb out of Kigali, not far from the headquarters of the International Criminal Tribunal for Rwanda, in Rwanda.

There is no common architecture, but the permanent buildings mainly are of handmade concrete blocks. The most notable feature of most buildings is the protruding rusting reinforcing, awaiting available funds for the next row of blocks or concrete mix. Every habitable space inside the buildings is taken up, whether buildings are complete or not, and families sit in the dark shade away from the increasing intensity of an equatorial sun.

The road continues to climb but no longer is it a bitumen surface. There are potholes and dust. Choking yellow dust. The stalls still lining the road clean the best they can, but a layer of dust remains. There are pedestrians, thousands of pedestrians, because this is both a cheap and reliable way of travel. Life does not require much travel anymore in Rwanda. The days of flight are over, at least for the time being. Life takes on a pattern of survival, trade and commerce to ensure that today we eat. With that goes the aggressive marketing, the importuning, to extract from me sufficient to buy a meal in exchange for something that I must have. As uncomfortable as it is, who can blame the marketer?

But the mask is there; that blanket over a collective consciousness. The individual emotionless faces are etched by the brutality of one of the most heinous crimes of the 20th Century. Every family will be affected. If they have not lost at least one member to the genocide there will be an emotional or physical cripple to care for, or there will be a member held in prison to account for their part in this immense, stupefying crime. And the war orphans on the streets!

I continue the climb and the city gives way to a bush and rock strewn hill, which is unlike most of Rwanda. There is no vegetation edible to man or beast on this hill, and no intensive farming. It is the dry season, but the area seems to be particularly dry. Just the charcoal burners, they too making a living in the aftermath of a bloody era, and removing what stunted growth remains. The mounds of damp earth leaking smoke identify the locations of these endeavours.

I reached the top, bone jarred, but cocooned in air-conditioned comfort. I descend to a fertile region and there, on the right, are markets. Open air in the main including the barbers doing a roaring trade. Short, back and sides is definitely fashionable. In fact, I suspect they are all number one blades, and even then some are shaven. Handsome with shoulders square facing the world. And colour. Vibrant colour in fabric, especially for women.

Up again and down again, but this time to a broad valley through which is flowing a brown river, surprisingly fast and full. But it is a narrow road and as I take the final left curve to line up with the causeway and the bridge, it is easy to picture the roadblocks of 1994. At that point there was no escape. There was only the prospect of moving forward to something unknown. On each side of a causeway leading out to the centre of the river is marshland planted with grasses to feed cattle and sugarcane of indefinite shape and length. The causeway leads to the main channel and it is there that the bridge spans the Nyabarongo River. This river and its tributaries drain the marshlands of the river valley and it finally makes it way into the Nile System. This was the river which was delivering, as promised, corpses back to Tutsi homelands by their thousands. As Dr Leon Mugersera said on 22 November, 1992, 17 months prior to the genocide:

“You cell members, work together watch out for intruders in your cell, suppress them. Do anything you can so that no body sneaks out. The fatal mistake we made in 1959 is that we let them (tutsi) out of the country. Their homeland is Ethiopia, we will cut their throats and sent them to Ethiopia through the short-cut, that is, river Nyabyarongo.”

But you would not imagine it today, given the peace that is apparent and palpable, and the commerce and daily business of the people.

But I can make it to the other side without hindrance, threat or obstacle and I continue to drive south, up another hill, through the dust and the potholes, and then emerge more or less on a plateau. Here now there are no soldiers, police or militia, leading a rabble of civilians armed with whatever weapon comes to hand and can kill. But the descriptions are etched upon the mind and imagination. This is fertile ground and life is slower than the city. This is the place where people wait for the seasons, which are fairly reliable in this part of the world, and the cycle of life bears fruit in its season. There is enough to eat, and even to sell. At the moment though, it is dry and the soil is tilled by hand, awaiting the first rain. This is the time for patience and reflection, and long conversations.

I drive further and come to the fork in the road heading to the Nelson Mandela Peace Village, a project named after a man of peace, built with an optimism in respect of the future of Rwanda, but more importantly an optimism in respect of human behaviour. That optimism must not be misplaced, just because, a few kilometres further on, is Ntarama. The legend on the map tells me that there is a church or mission at Ntarama. That is my destination, along a side road servicing only a few farms with mostly cattle. There is a place of tranquillity. And the Eucalyptus trees! That is another story of colonial invasion and railway lines. They grow so prolifically in this very beautiful climate and become a feature of the landscape. The Eucalypts have taken over here and formed front and side boundaries to this property. There is now a fence, chain wire, with a gate. Not that that would have done any good at the time. There is a walkway in the shade of the trees, shadows being cast by a slanting sun. There is a caretaker who sits in an alcove in a galvanised iron shed. This shed is next to the church. The church is a rectangular red brick building with a metal roof. It is about 10 metres wide by about 30 metres in length. But there are features which should not be there. There are holes in the walls; bricks smashed out. On the side of the church farthest from the road there are more holes, and behind that are skillion-roofed sheds. There is no rush here, and there is a silence, which is appealing. But then why wouldn’t it be appealing? Gone are the terrors, the screams, the grenades exploding, the guns firing and the sound, the dull sound, of clubbing.

The church is empty. Empty? I mean there is no living creature in the church, neither human nor animal. There is instead a putrescent mass 15 centimetres deep across the floor. Nothing has changed from that day in April 1994, except the continuing decay of what was. Perhaps the skulls have been plucked from rotting flesh and membrane, but the human skeletons and the degenerating clothes they wore on the fatal day remain. The pews are low, narrow and backless. This was not a society given to excesses or extremes, but one where those of a Christian faith came together in simplicity, without demonstration of anything but individual and personal faith, and there they died. The churches were a place of sanctuary, and, in one of the most cynical exercises of the ravaging of the heart and soul of the people, the call went out to come to a sanctuary such as this, and there you will find protection. And so the people came with meagre possessions, helping their aged and their infants, unarmed and defenceless, to the building where there were few windows and one door. How many thousands of people were there is difficult to know. But the walls were breached and holes created for grenades to be thrown in, and the rifles to be fired, and so a carnage began.

Those who did not die quickly were slaughtered by hand when the enemy entered the sanctuary. Precious simple possessions were mixed with bibles and hymnals and the church became a sea of screaming, pleas for mercy on the one hand, and for blood on the other. The blood satiated everything including, it would seem, the killers. The blood mixed with the bibles and the hymnals, and the simple possessions, and the bodies of the old men and women, and the mothers and young women and the children. And there they died in the sanctuary.

And there they remain, slowly and inevitably rotting away, the silent reminder of this 20th Century massacre. Among the clothes are the bones. The bones left as the brutal memorial as this site is, to the carnage and hatred that once existed in this place. It is beyond description, spreading from wall-to-wall, from nave to altar, without discrimination, and now without form or identity. The oneness of humanity; the dust to dust; the nakedness of birth and death; the decay of morality.

On the wall of the entrance to the church is still, faded and tattered with marks all over it, a poster, written in French. 1994 was the International Year of the Woman. The poster commemorates the struggle for recognition of womanhood and tells me that in March of 1994 there was a celebration of that fact within that church. The bones are the ultimate denial of recognition of womanhood and the testament to the inhumanity of man to womanhood. Able men were off doing things. The women, the children and the old men sought refuge in the church. And there they paid with their lives.

There are out buildings as well. Simple buildings of corrugated galvanised iron and mud walls. Buildings used for Christian education, the process of illuminating small groups. There remain small groups in those buildings, small groups of bones of those desperately hiding for their lives, but found and murdered. I go to the partly completed brick building at the end of the church. And there are bags of bones. What can you do if you have too many bones? I suppose you can only put them into maize sacks and store them in available buildings and corners.

Then there is the more substantial building. I am not sure for what purpose that building was used. It was brick and solid, but with no door. Inside was the vision incomprehensible. More bones. Hessian bag after hessian bag filled with bones. For what reason? Awaiting burial? Awaiting assembly in some further tribute to the brutal, macabre energy of what was? Or awaiting the knitting together, a resurrection, some symbol of union or hope, or future?

And then I come to the building that I know houses something, because I am encouraged to look inside. But what can prepare anyone for this? About 1.5 metres from the floor is a rack, occupying the whole of this building except for a walkway down one side. And on that shelf are skulls, skulls, and more skulls, line after line of life extinct. There is not enough room and some have fallen off. There are small skulls and there are large skulls. There are skulls with no apparent sign of violence and there are skulls with bullet holes in them. There are skulls with long gashes through the bone. There are skulls that have simply been whacked and are caved in. There are skulls with irregular jagged holes, victims of the lumps of timber with long nails driven through them. There are skulls with metal still protruding from them. There are eye sockets, thousands of them, all facing the door. There are maybe 2,000 skulls lined up as though on military parade, dressing from the left. The waste, the immense unnecessary tragic waste. The memorial to stupidity, politics, wealth, power and intransigence. A tribute to the lack of sight or action of the world. There are none so blind as those who refuse to see! Nor those so culpable as those who refuse to act!

The aquiline noses have gone and all that remains is the cleft where once a nose was. The high cheekbones are visible. But it is the teeth that drag your attention down. The teeth tell the story of a people and their massacre. There are large skulls with few, or no, teeth. The aged who have lived their full life until now are dead, not because they deserve to die; not because they have made no contribution to the welfare of their community; not because they are not revered or loved in their community; but purely because they were Tutsi. Then, at the other end of the scale, there are the small skulls, there are the tiny skulls, some with no teeth, some with a few front teeth, and some with a small set of teeth. The infants, the innocents, not because of over population, not for spiritual sacrifice, not because they are unwanted by their community and their families, but because they are, or suspected to be, Tutsi. And then there are the skulls, obviously of females. They are delicate, with well preserved teeth, teeth of young people who are perhaps mothers or who have learnt to take care of themselves in a world which has been kind to them, a world where, perhaps, they were courted by young men of a different ethnic grouping or a different village, or a world in which their husband was a good man, either a Tutsi or a Hutu. But they are dead, not because they are not good mothers, not because they have not cared and provided for their children and family, not because they would not make good mothers, but just because they are Tutsi. And in the bitterest irony, on the back wall of the church was the poster dedicated to the International Year of the Woman, celebrated on a Sunday only one month before.

The afternoon sun slants through the Eucalypts surrounding the site, and through holes in the western wall of this skillion roofed structure, hastily built to house the starkest evidence of inhumanity, brutality, even barbarism. The sun casts eerie shadows punctuated by sharp light on skull, the contrast of the source and continuum of life and the untimely, unnecessary and bloody death of hundreds of thousands of people.

“But why did you kill the women and the children?” I asked witness after witness called in defence of the Minister for Information, Niyitegeka. “Because that is what happens in war” said witness after witness called to justify the perverse excesses of a hundred days. “But surely the women and the children were not participating in the war?” I asked the same question to witness after witness. “But the families belonged to the enemy and they had to die” came a couple of responses.

And the corrugated galvanised iron doors were drawn shut on this macabre arrangement, this virtuoso performance of death.

There are many other churches, many other mosques, schools, hospitals, public buildings and open spaces which saw the same senseless, needless, heedless, brutality. There are hundreds of sites of mass burials, and there are so many skeletons and bones that saw no burial, but were dismembered by the foraging of wild animals.

There are truths so central to human existence that these bones reverberate with more life than any sermon, homily, lesson, political manifesto or diatribe. And it reminds me that I am privileged to live in a society that embraces the rule of law.

Ken Fleming QC
T.J. Ryan Chambers

President: Michael McPherson Stewart S.C.

Vice President: Michael John Byrne QC

Council:

John Richard Baulch S.C.
Susan Elizabeth Brown
Stephen Thomas Courtney
Peter John Davis S.C.
Liam Matthew Dollar
Richard John Douglas S.C.
James Dawson Henry S.C.
Sarah Catherine Holland
Anthony William Moynihan S.C.
Douglas Robert Murtagh Murphy S.C.
Daniel Paul O’Gorman S.C.
Mark Oliver Plunkett
Anand Joseph Shah
Roger Norman Traves S.C.
Elizabeth Sybil Wilson

Regards

Daniel L O’Connor
Chief Executive

Most of the defects identified in this article reflect practices which have been consciously adopted by some — or, in a few instances, many — members of the Bar, no doubt under the impression that they are good and useful practices. They aren’t.

Some of these practices appear to be of fairly recent origin; some have been regularly encountered throughout the present contributor’s experience of more than 25 years at the Queensland Bar. This just shows that durability is no indicator of viability.

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.

But one remains optimistic that there are also members of our Bar — perhaps younger, more conscientious, more diligent, or simply more flexible than their curmudgeonly seniors — who have adopted these practices, not out of indolence or lassitude, but out of a sincere if misguided persuasion that such practices are time-honoured and venerable; who have seen these practices employed by barristers with threadbare gowns and yellowing wigs, and have made the (perfectly understandable) assumption that what is sauce for the goose is also sauce for the gosling.

To them, and indeed to any reader who has an open and inquiring mind, I invite consideration of the views expressed in this article. I accept that pleading is an art, rather than a science; that there is no single “right” way to plead, and no simple formula to ensure perfection in pleadings. I also respect the fact that some readers, having considered the views expressed in this article, will revert to drawing pleadings as they have always done, unconvinced by my arguments, and more comfortable with practices which they regard as “tried and true”.

Yet, even if this article achieves nothing more than to encourage its readers to think about the way that they plead — to reconsider and re-evaluate practices which have become second nature, and to contemplate whether there may possibly be a better way to do things — it will have surpassed the writer’s most ambitious expectations.

(1) Pleading Conclusions

This is a practice which seems to have originated elsewhere than in Queensland¹. It is spreading northwards into this State, as rapidly and inexorably as the southerly migration of the cane toad. It is equally unwelcome.

The practice consists of pleading a conclusion, in terms of the relevant legal or equitable principle, or the applicable statutory provision, and then setting out the material facts as (so-called) “particulars”. Hence, one will see a numbered paragraph in a pleading something like this:

##. The Defendant’s conduct in making the representation was misleading or deceptive, or likely to mislead or to deceive, in contravention of section 52 of the Trade Practices Act. Particulars The representation was made by the Defendant in the course of trade or commerce. The representation was untrue, in that … [etc.] The Plaintiff relied on the representation, in … [etc.]

or this:

##. The Defendant breached its fiduciary duties to the Plaintiff. Particulars The Defendant was the Plaintiff’s agent. The Defendant owed to the Plaintiff a fiduciary duty, as the Plaintiff’s agent, not to derive a secret profit from the transaction. The Defendant did derive a profit from the transaction, namely … [etc.] That profit was not disclosed to the Plaintiff.

or this:

##. On [date], the Plaintiff and the Defendant contracted for the sale of the said business by the Defendant to the Plaintiff. Particulars 1. The contract was partly written and partly oral. 2. Insofar as the contract was written, it consisted of: a. a letter dated [date] from the Defendant to the Plaintiff; b. a letter dated [date] from the Plaintiff to the Defendant; and c. an instrument dated [date] entitled “Business Sale Contract”. 3. Insofar as the contract was oral, it consisted of … [etc.]

The relevant rules of pleading are perfectly clear. Rule 149(1)(b) of the Queensland Uniform Civil Procedure Rules (“UCPR”) provides: “Each pleading must … 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”. Sub-rule (2) provides that: “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” (emphasis added). Similarly, Order 11 rule 2 of the Federal Court Rules (“FCR”) provides: “Subject to these Rules … a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved”.

If these requirements were not sufficiently unambiguous, their effect has been made clear in numerous decisions, of which it suffices to cite just one example. In Angelo Mitanis v. Pioneer Concrete (Vic) Pty Ltd², Goldberg J. began by noting that “It has been established for many years that the most fundamental rule of pleading is the rule found in O.11 r.2: Bruce v. Odhams Press Limited³, Trade Practices Commission v. David Jones (Aust) Pty Ltd⁴; Trade Practices Commission v. Australian Iron & Steel Pty Ltd⁵.” His Honour then adopted the observations of Burchett J in Multigroup Distribution Services Pty Ltd v. TNT Australia Pty Ltd⁶, and of Neaves J in The Bega Co-operative Society Limited v. The Milk Authority of the Australian Capital Territory⁷, “that a statement of claim is to contain material facts being the facts necessary for the purpose of formulating a complete cause of action and that it is not sufficient simply to plead a conclusion drawn from unstated facts”. Goldberg J concluded:

But the objections to this form of pleading do not begin — let alone end — with the complaint that it is formally defective. Such a pleading may be struck out, if the opposing party brings the appropriate application. But the opposing party may not do so: perhaps because this form of pleading has become sufficiently common that it is believed to be permissible; perhaps through fear that the court will view any strike-out application as “technical” or “pedantic” rather than meritorious; perhaps out of a (perfectly salutary) desire to avoid the costs of unnecessary interlocutory applications; or, just possibly, though a conscious decision to take advantage of the potential forensic benefits if the case proceeds to trial with the other side’s pleadings in a defective state.

What are the consequences if such a pleading is allowed to stand?

Neither under the UCPR nor under the FCR is there any requirement for the opposing party to respond to the particulars of a pleaded case, as opposed to the allegations contained in the numbered paragraphs of the pleading. In the first example given above, the opposing party would be perfectly entitled to deny the alleged infringement of section 52, without entering into the question whether the representation was made in the course of trade or commerce, whether it was true or false, or whether the other party relied on it. In the second example, the opposing party could deny the breach of fiduciary duty, without responding to the (so-called) “particulars” which identify the alleged source, content and breach of that duty.

A further related consequence is that, in Queensland courts, the party on whose behalf the pleading was filed will not enjoy the considerable benefits of the UCPR’s requirements regarding non-admissions and denials. Rules 166 and 167 apply only to an “allegation of fact” made by a party in a pleading; on any view, these provisions have no application where the relevant allegation is merely a legal conclusion. The opposing party may either ignore the paragraph which pleads the conclusion, or traverse it without providing “a direct explanation for the party’s belief that the allegation is untrue or can not be admitted”.

Similarly, under FCR Order 11 rules 13 and 18, it is only an “an allegation of fact in the previous pleading” which attracts the requirements for specific non-admissions or denials. This includes the requirement that “When a party … denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively or generally, but must answer the point of substance”.

Moreover, when it comes to disclosure or discovery of documents, non-party disclosure or discovery, interrogatories (where allowed), and other interlocutory procedures, the issues are defined by the allegations of fact which are in issue on the pleadings. For example, UCPR rule 211(1)(b) mandates disclosure of “each document … directly relevant to an allegation in issue in the pleadings”; UCPR rule 243(1)(b) limits non-party disclosure to documents which are “directly relevant” to an “allegation in issue in the pleadings”. Whilst particulars may limit the issues, they cannot expand them⁹.

The last point may not matter where the pleaded conclusion is denied or not admitted. But if the pleaded conclusion is admitted — without admitting, traversing, or otherwise responding to the (so-called) “particulars” — what are the “allegation[s] in issue in the pleadings”? In the third example given above, the opposing party would be entitled to admit that there was a contract, without responding to the “particulars” regarding the content of the contract. If the existence of the contract is admitted, there could be no “issue in the pleadings” for disclosure or discovery, whether inter partes or from a non-party, or for interrogation, even if the reality of the situation is that the opposing party disputes the oral component of the contract as particularised.

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. A pleading which asserts legal conclusions, with the material facts set out as (so-called) “particulars”, may or may not be the subject of a successful strike-out application. But, on any view, it takes no advantage of the available forensic opportunities.

The best way to do that is to plead each material fact as a separate substantive allegation. Doing this is the only way to ensure that the other side’s pleading is fully responsive, including — under UCPR rule 166(4), where it applies — “a direct explanation for the party’s belief that the allegation is untrue or can not be admitted”. This should not only limit the case to factual issues which are genuinely in dispute; it also enlivens the right to claim costs under rule 167 in respect of unreasonable denials and non-admissions; and it clarifies the scope of disclosure or discovery, including non-party disclosure or discovery, interrogation, and other interlocutory processes. And, ultimately, it provides a clear road-map as to what must be proved by admissible evidence, and what need not be proved, in order to succeed at trial.

(2) Use of the Subheading “Particulars”

Putting to one side the entirely unsustainable practice of pleading a conclusion with (so-called) “particulars” subjoined, one may question whether it is ever necessary or desirable to include the subheading “Particulars” in a pleading, rather than incorporating the relevant factual allegations within the numbered paragraphs of the pleading.

It has often been said that the dividing-line between “material allegations” and “particulars” may be blurred¹⁰ — indeed, in a practical sense, it is often imperceptible. Yet the distinction is of fundamental importance. It has been described as “the plainest and most fundamental of all the rules of pleading” that “all the material facts constituting the cause of action ought already to have been plainly stated in the pleading itself”¹¹. It has also repeatedly been said that “it is simply not the function of particulars to take the place of necessary averments in the pleading of the material facts”¹². In other words, if an essential element of the cause of action is put forward merely as a “particular”, rather than in the body of the pleading, the pleading is strictly liable to being struck out as failing to disclose a cause of action.

This much, however, may be said with absolute confidence: aside from cases of extreme prolixity — where a strike-out application is appropriate, whether the excessive details are placed in the body of the pleading or provided separately as “particulars” — no pleading has ever been struck out because the material facts were pleaded with greater particularity than may strictly be necessary. One would think, then, that the lesson is a simple one: to incorporate as much detail as possible in the numbered paragraphs of the pleading, rather than relegating potentially material factual allegations to the inferior status of “particulars”.

Once again, quite apart from providing prophylaxis against a possible strike-out application, this approach has significant tactical advantages. As previously mentioned, neither the UCPR nor the FCR require a response to the particulars of a pleaded case, as opposed to the allegations contained in the numbered paragraphs of the pleading. One might think that the advantages are self-evident, of compelling one’s opponent to provide a substantive response to every pleaded allegation — including, under UCPR rule 166(4), “a direct explanation for the party’s belief that the allegation is untrue or can not be admitted” — rather than giving one’s opponent carte blanche to pass over allegations which are both material and potentially contentious, by labelling them as mere “particulars”.

But, in negligence actions — to take just one example — it has become almost the invariable practice for the most important allegations to be presented as mere “particulars”. Thus, a statement of claim in a running-down case will often contain something like this:

##. The said collision was caused by the negligence of the Defendant.  Particulars of Negligence Driving without due care and attention. Failing to keep any, or any proper, look-out. Driving at a speed which was excessive in the circumstances. Failing to stop, slow down or steer clear to avoid the collision.

This form of pleading — hallowed by custom “whereof the memory of man runneth not to the contrary”, and no doubt hard-wired into the word-processing precedents of the personal injuries bar — is admittedly unlikely to attract a successful strike-out application. But is it the best way to plead? Surely the advantages for the plaintiff are obvious if the same case were pleaded along these lines:

##. The said collision occurred in circumstances where: (a) the lawful speed limit was 60 kilometres per hour; (b) the road was wet following recent rainfall; (c) the sun had set, there was no moonlight, and there was no artificial street-lighting; (d) the tyres fitted to the Defendant’s vehicle were in a poor condition; (e) the brakes fitted to the Defendant’s vehicle were in a poor condition; and (f) it was, in the premises, reasonably foreseeable that the Defendant’s vehicle would require a longer than usual distance to be brought to a halt if the Defendant was required to stop suddenly. ##. In the premises, the speed at which the Defendant was driving was an excessive speed. ##. Further, the Defendant: (a) was driving without the degree of care and attention that would have enabled the Defendant to foresee and avoid the collision; (b) failed to keep a sufficient look-out to enable him to observe the Plaintiff’s approaching vehicle and thereby avoid the collision; and (c) did not stop, slow down or steer clear to avoid the collision. ##. In the premises of [the last three] paragraphs, the collision was caused by the Defendant’s negligent driving.

It should not be imagined, however, that this point is relevant only in personal injuries cases. To take just one other example, one will often see a pleading in a contract case which reads something like this:

##. On or about [date], the Plaintiff agreed to sell to the Defendant, and the Defendant agreed to purchase from the Plaintiff, ten thousand (10,000) tonnes of wheat, grade A++, for delivery at Dalby in the State of Queensland, at a price of $375.00 per tonne. Particulars At a meeting on [date] between Mr X on behalf of the Plaintiff and Mr Y on behalf of the Defendant, at the Plaintiff’s property near Dalby in the State of Queensland, Mr Y expressed interest in purchasing the whole of the wheat to be harvested from the Plaintiff’s property. Mr X stated that he expected the wheat harvest to be approximately 10,000 tonnes. Mr X also stated that he expected the harvested wheat to be grade A++ quality. Mr Y indicated that, if the wheat was grade A++ quality, he was willing to offer $375.00 per tonne. Mr X stated that $375.00 per tonne would be acceptable, if the Defendant took delivery in Dalby, but not if the Plaintiff had to pay freight to another location. Mr Y stated that he thought that would be okay, but would need to check with his regional manager. The following day, Mr Y telephoned Mr X and said that he had received approval from his regional manager to proceed as discussed. Subsequently, the Plaintiff received a letter dated [date] from the Defendant, confirming that the Defendant had agreed to purchase 10,000 tonnes of wheat, grade A++, for delivery at Dalby, at a price of $375.00 per tonne.

There is absolutely nothing wrong with a pleading in that form. But is it the best form of pleading for such a case? Depending on what the pleader knows of the case — which issues are likely to be uncontentious; which are likely to be genuinely disputed; and which may therefore be the subject of useful disclosure or discovery of documents — the pleader may well see advantages in getting the defendant to provide a “point by point” response to each of the individual steps which collectively mount up to the formation of a contractual agreement between the parties. This can be achieved by pleading precisely the same facts in a different form; for example:

##. On or about [date]: (a) a meeting took place at the Plaintiff’s property near Dalby in the State of Queensland; (b) Mr X attended and participated in that meeting on behalf of the Plaintiff; and (c) Mr Y attended and participated in that meeting on behalf of the Defendant. ##. In the course of that meeting: (a) Mr Y expressed interest in purchasing the whole of the wheat to be harvested from the Plaintiff’s property; (b) Mr X stated that he expected the wheat harvest to be approximately 10,000 tonnes; (c) Mr X also stated that he expected the harvested wheat to be grade A++ quality; (d) Mr Y indicated that, if the wheat was grade A++ quality, he was willing to offer $375.00 per tonne; (e) Mr X stated that $375.00 per tonne would be acceptable, if the Defendant took delivery in Dalby, but not if the Plaintiff had to pay freight to another location; and (f) Mr Y stated that he thought that would be okay, but would need to check with his regional manager. ##. On the day following that meeting, namely [date]: (a) Mr Y telephoned Mr X; and (b) in the course of that telephone conversation, Mr Y said words to the effect that he had received approval from his regional manager to proceed as discussed. ##. On or about [date]: (a) the Plaintiff received a letter dated [date] from the Defendant; and (b) the said letter confirmed that the Defendant had agreed to purchase 10,000 tonnes of wheat, grade A++, for delivery at Dalby, at a price of $375.00 per tonne. ##. In the premises of [the last four] paragraphs, the Plaintiff agreed to sell to the Defendant, and the Defendant agreed to purchase from the Plaintiff, ten thousand (10,000) tonnes of wheat, grade A++, for delivery at Dalby in the State of Queensland, at a price of $375.00 per tonne

 

(3) “Admitting” Allegations which are not Pleaded

With increasing frequency, one sees pleadings (especially defences; sometimes also replies or replies and answers) which purport to “admit” something which is not actually pleaded. Sometimes the differences are slight and fairly subtle; sometimes they can be very fundamental.

For example, a statement of claim in a medical malpractice action might allege:

##. The Defendant is, and was at all times material to this proceeding: (a) a duly qualified medical practitioner; (b) a member of the Royal Australian College of Surgeons; (c) a person lawfully entitled under Queensland law to practise as a specialist in the field of general surgery; and (d) practising as a general surgeon from rooms at Wickham Terrace, Brisbane, in the State of Queensland.

In the defence, this might attract a response along the following lines:

##. As to paragraph ## of the statement of claim, the Defendant admits that he is, and was at all times material to this proceeding: (a) a duly qualified medical practitioner; (b) a fellow of the Royal Australasian College of Surgeons; (c) a person lawfully entitled under Queensland law to practise as a specialist in the field of vascular surgery; and (d) practising as a vascular surgeon from rooms at Ballow Chambers, 121 Wickham Terrace, Brisbane, in the State of Queensland.

As this example illustrates, the pleader’s intentions may be perfectly innocent — the pleader may understand (or believe that he or she understands) what the opposing party’s pleading was intended to say, and assume that he or she is actually being “helpful” by expressing the admissions in terms which are slightly different from the pleaded allegations to which they respond.

However, it is a bad pleading practice. An appropriate response might be, for example:

##. As to paragraph ## of the statement of claim, the Defendant: (a) admit that he is, and was at all times material to this proceeding, a duly qualified medical practitioner; (b) denies that he is, and was at all times material to this proceeding, a member of the Royal Australian College of Surgeons, on the grounds that: (i) the correct name of the relevant body is the “Royal Australasian College of Surgeons”; and (ii) he is, and was at all times material to this proceeding, a fellow (rather than a member) of that body; (c) admits that he is, and was at all times material to this proceeding, a person lawfully entitled under Queensland law to practise as a specialist in the field of general surgery; (d) further says that it is, and was at all times material to this proceeding, the case that: (i) vascular surgery is and was recognised under Queensland law as a sub-specialty of general surgery; and (ii) he is and was a person lawfully entitled under Queensland law to practise as a specialist in the sub-specialty of vascular surgery; (e) admits that he is, and was at all times material to this proceeding, practising as a surgeon from rooms at Wickham Terrace, Brisbane, in the State of Queensland; (f) denies that he does, or did at any material time, practise as a general surgeon, on the ground that he practises, and at all times material to this proceeding practised, exclusively as a vascular surgeon; and (g) says that the full and correct address of the rooms from which he so practises, and at all times material to this proceeding so practised, is Ballow Chambers, 121 Wickham Terrace, Brisbane, in the State of Queensland.

Whilst this example illustrates a relatively benign instance of the problem, the same thing often happens where a pleader seeks to re-draft the allegations which are being admitted, either genuinely but mistakenly believing that the re-drafting reflects what the other side’s pleading was intended to say, or as a short-cut way of pleading a qualified admission.

Take, for example, a statement of claim in a defamation action which alleges:

##. On or about [date], the Defendant: (a) published by means of a radio broadcast the words, “[The Plaintiff] is lower than a snake’s duodenum”; and (b) thereby, in the natural and ordinary meaning of the words so published, meant and was understood to mean that the Plaintiff: (i) is a contemptible person; (ii) is deserving of scorn, mockery, ridicule and contempt; and (iii) is a person whom all decent and right-thinking people ought to shun and avoid.

A bad defence might take this form:

##. As to paragraph ## of the statement of claim, the Defendant admits that, on or about [date], he: (a) published by means of a radio broadcast the words, “If [the Plaintiff] has committed the conduct alleged against him in this morning’s newspaper, he is lower than a snake’s duodenum”; and (b) thereby, in the natural and ordinary meaning of the words so published, meant and was understood to mean that, if the Plaintiff had in fact committed the conduct alleged against him in that morning’s newspaper, the Plaintiff: (i) is a contemptible person; (ii) is deserving of scorn, mockery, ridicule and contempt; and (iii) is a person whom all decent and right-thinking people ought to shun and avoid.

On this occasion, the differences between the pleaded allegations and those purportedly “admitted” may prove to be very material indeed. Of course, at trial it may turn out that the Defendant’s version (as supposedly “admitted”) is correct, and that the Plaintiff’s version is — to that extent — inaccurate. But this does not justify the Defendant’s approach of “admitting” a re-drafted version of the facts pleaded in the statement of claim; on the contrary, it highlights why it is important for the Defendant to plead in a way which makes it very clear where the respective versions part company.

An example of an appropriate form of defence might be:

##. As to paragraph ## of the statement of claim, the Defendant: (a) admits that: (i) on or about [date], he published by means of a radio broadcast certain words; (ii) the words so published by him referred to the Plaintiff; and (iii) the words so published by him included, in reference to the Plaintiff, the words “lower than a snake’s duodenum”; (b) otherwise denies the allegations of fact contained in sub-paragraph (a) thereof, on the ground that the full substance and context of the words so published was: “If [the Plaintiff] has committed the conduct alleged against him in this morning’s newspaper, he is lower than a snake’s duodenum”; (c) denies, on the grounds set forth in sub-paragraph (d) hereof, that the words so published had or were understood to have the meanings alleged (whether in the natural and ordinary meaning of the words so published, or at all); and (d) says that, in the natural and ordinary meaning of the words so published, they reflected on the Plaintiff if, and only if, it were first established that the Plaintiff had in fact committed the conduct alleged against him in that morning’s newspaper.13

(4) The Expression “all material times”

There is no doubt that the expression “all material times” — or the preferable alternative, “all times material to this proceeding” — is very useful, especially when pleading introductory allegations which “set the scene” for the contentious facts averred at a later point in the pleading.

Introductory allegations which may usefully be prefaced by such expressions can include (depending on the details of the particular case):

• the fact that any of the parties is an incorporated entity (eg., “At all times material to this proceeding, the First Defendant was a company duly incorporated, and capable as such of being sued in its corporate name”);
• the existence and control of any relevant trusts (eg., “At all times material to this proceeding, the First Defendant was the trustee of a certain discretionary trust known as ‘The Xxxx Family Trust’ created by a Deed of Trust dated [date]”);
• the relationships between the parties (eg., “At all times material to this proceeding, the Second Defendant was the sole director of the First Defendant”);
• the nature of any business relevantly carried on by any of the parties (eg., “At all times material to this proceeding, the First Defendant, as trustee of the said trust, carried on the business of subdividing and developing land for residential occupation”);
• the ownership of any relevant property by any of the parties (eg., “At all times material to this proceeding, the Second Defendant was the registered proprietor of the land described as … [etc.]”);
• any relevant legal status or qualifications attributable to any of the parties (eg., “At all times material to this proceeding, the Third Defendant was a solicitor of this Honourable Court, duly qualified and admitted to practise as such, and the holder of a current practising certificate issued by the Queensland Law Society Inc.”).

Generally speaking, these expressions are not appropriate to introduce contentious allegations. To plead a contentious allegation by reference to “all material times” often involves assuming a burden which is unnecessary, as it is only essential to plead (and ultimately to prove) that the relevant state of affairs existed at a specific point in time. And doing so is often the result of lazy or sloppy drafting, by counsel who have not bothered to think about and decide what times are “material” with respect to a particular state of affairs.

A very common example occurs in actions under Part V of the Trade Practices Act — for example, section 51AA and section 52 — where an essential ingredient of the cause of action is that relevant conduct occurred in the course of “trade or commerce”. Commonly, the pleading will allege that “At all material times the Defendant was engaged in trade or commerce”, sometimes even adding the words “within the meaning of the Trade Practices Act”. Such an averment commits the first of the “seven deadly sins”, because it really pleads a conclusion rather than material facts.

But the problems with pleading in that way do not end there. On the one hand, the burden taken on by a plaintiff in alleging that the defendant was “engaged in trade or commerce” at “all material times” is unnecessary — all that is required is that the defendant was engaged in trade or commerce at the time when the infringing conduct occurred. On the other hand, to plead that the defendant was “engaged in trade or commerce” at “all material times” may also be inadequate — the essential question is not whether the defendant was generally engaged in trade or commerce, but whether the infringing conduct occurred in the course of such trade or commerce¹⁴.

Another common example involves allegations of agency. It will be a rare case indeed where it is either necessary or appropriate to plead that, “At all material times the Second Defendant was the First Defendant’s agent”. Adding, after the words “all material times”, the further words “and for all material purposes”, merely exacerbates the problem. Again, these types of pleadings often reflect a lazy or sloppy approach, by counsel who has not taken the trouble to identify the times and purposes which are “material” to the existence of the relationship of principal and agent.

Such a form of pleading, once again, fails to take advantage of available forensic opportunities, especially under the UCPR. A second defendant who is alleged to have been the first defendant’s agent “at all material times” may properly object to that allegation as being irrelevant, or deny it as being untrue, without addressing the only point which is of any ultimate significance: namely, whether he was the first defendant’s agent at the time and for the purpose of committing a specific act or omission which forms an essential ingredient of the cause of action.

This highlights another difficulty inherent in the rote and unthinking use of the expression “all material times”. Often, through laziness or sloppiness, that expression is used to preface the averment of a state of affairs which plainly did not subsist at each and every point in time which may be material in the action generally. A few “real life” examples may serve to illustrate how this happens:

A. In a defamation action, the statement of claim pleaded that the plaintiff, “at all material times”, was a person of good fame and repute, enjoying a reputation for honesty and integrity. Of course, the gravamen of the plaintiff’s case was that publication of the defamatory matter had harmed his reputation. What he should have pleaded is that the alleged state of affairs subsisted at all material times until publication of the defamatory matter.

B. In an action for rescission of a contract for the sale of land, the statement of claim pleaded that the defendant, “at all material times”, was the registered proprietor of the subject land. What the pleading should have alleged is that the defendant was the registered proprietor at all material times until completion of the sale to the plaintiff.

C. In a suit for specific performance of a contract, the statement of claim pleaded that the defendant, “at all material times”, was a company duly incorporated. This was admitted in the defence, although a substantial plank in the defence case was that the defendant could not be bound by the contract as it had been entered into prior to the defendant’s incorporation. In this instance, it would have been appropriate to deny that the defendant was duly incorporated “at all material times”, on the ground that the defendant was not incorporated until a specified date post-dating the alleged contract.

(5) Pleading Documents

Aside from negligence actions and some other torts, almost all civil litigation turns upon the contents of one or more written documents — be they contractual instruments, partnership or joint venture agreements, declarations of trust, conveyancing documents, leases, easements, written representations, libellous publications, or what have you.

In recognition of this fact, court rules generally contain helpful provisions regarding the way that written documents may be pleaded. UCPR rule 152 provides: “Unless precise words are material, a pleading may state the effect of spoken words or a document as briefly as possible without setting out all of the spoken words or document.” FCR Order 11 rule 4 provides: “Where any document or spoken words are referred to in a pleading, it is permissible to state the effect of the document or spoken words without setting out the precise terms thereof.”

There are, in fact, three ways to plead the contents of a written document:

A. The first is to plead, in accordance with rule 152 or Order 11 rule 4, “the effect of the document”. For instance:

##. By a letter dated [date] from the Defendant’s solicitors to the Plaintiff’s solicitors, the Defendant agreed to extend the time for completion by 30 days, with time to remain essential.

B. The second is to set out, verbatim, the relevant part or parts of the document. For instance:

##. The said Contract of Sale provided, by clause 3 of the ‘Special Conditions’ annexed thereto, as follows: 3. This contract is subject to and conditional upon … [etc.]

C. The third is to incorporate the whole of the document in the pleading, most conveniently by attaching it as an annexure. For instance:

##. On or about [date], the Defendant published or caused to be published on page 17 of the Courier-Mail newspaper of that date, an advertisement, a true copy of which is attached to this pleading and marked as ‘Annexure A’.

Despite this range of options, one still sees — with monotonous regularity — pleadings which say something like this:

##. The Plaintiff will refer to the said [document] at the trial of this action for its full terms, true meaning and effect.

Why do people waste even the infinitesimal amount of paper and ink — let alone thought and effort — required to insert such a meaningless and worthless piece of verbiage into any pleading? It does nothing. If the document is relevant, then all parties will have every right to refer to it at trial — including its “full terms, true meaning and effect” — whether or not the intention to do so is foreshadowed in a pleading. And if the document is not relevant, foreshadowing an intention to refer to it at trial will not entitle anyone to do so.

(6) The Expression “repeats and relies upon”

 If there is any single expression which should never appear in any pleading, it is the expression “repeats and relies upon”. A good pleading sets out the material facts, and only the material facts. Once they have been set forth, there is no purpose in repeating them: no purpose in repeating them literally; and equally no purpose in repeating them figuratively, by asserting that one “repeats and relies upon” them.

This expression seems to have become fashionable where the pleader is attempting to set up distinct causes of action, or perhaps distinct grounds of defence, and the same material facts are relevant to more than one cause of action or one ground of defence. Thus, for instance, the same course of dealings between the parties may be relied upon as giving rise to a contractual cause of action, or alternatively a promissory estoppel. There is certainly no reason why the same material facts may not, in an appropriate case, be relied on in that way.

But it is entirely unnecessary, even in such a situation, to “repeat and rely on” pleaded allegations of material facts. It is perfectly adequate to plead, for example, that:

##. In the alternative, by reason of the matters pleaded in paragraphs ## to ## hereof, the Defendant is estopped and precluded from denying an obligation to … [etc.]

Just as it is unnecessary to “repeat and rely upon” material facts set forth in the same pleading, it is also unnecessary to “repeat and rely upon” material facts set forth in an earlier pleading of the same party. For instance, one may see something like this in a plaintiff’s Reply:

##. The Plaintiff denies the allegations in paragraph ## of the defence, and repeats and relies upon paragraphs ## to ## of the statement of claim.

If a “direct explanation for the party’s belief that the allegation is untrue” is required under UCPR rule 166(4), it might be appropriate to plead:

##. In the premises pleaded in paragraphs ## to ## of the statement of claim, the Plaintiff denies the allegations in paragraph ## of the defence.

or:

##. The plaintiff denies the allegations in paragraph ## of the defence on the grounds pleaded in paragraphs ## to ## of the statement of claim.

But the expression “repeats and relies upon” has no place in any competent pleading.

(7) Numbering of Paragraphs

The final point may seem trivial — almost banal — compared with those already canvassed. But in this writer’s view, anything which contributes to making a pleading more intelligible or less ambiguous, or easier to read, or which simply enhances the professional appearance of the finished product, is worthy of attention. So I take this opportunity to make five brief points.

First, it is a common enough (and entirely unobjectionable) practice to refer, within a pleading, to other numbered paragraphs of the same pleading. But it commonly happens that, during the drafting process, paragraphs get renumbered, so that internal references to numbered paragraphs become disordered. There are three ways to prevent this problem.

A. The first, and perhaps most obvious, is carefully to check the final draft before it is sent off to the instructing solicitor to be engrossed, filed and served. This may seem obvious, but my experience suggests that it is more often honoured in the breech than the observance.

B. The second is to adopt the practice, when drafting a pleading, of inserting some symbol — such as an asterisk (*) or a hash (#) — wherever there is to be a reference to another numbered paragraph. This makes it easy, with the assistance of the “search” function available in all modern word-processing systems, to find and replace such symbols once the paragraph numbering has been finalised.

C. The third is to avoid internal references to paragraph numbers altogether, by the judicious use of definitions. As a simple example, paragraph 4 of a pleading might refer to a certain property. On each subsequent occasion where it is relevant to refer to that property, it might be described as “the property mentioned in paragraph 4”. But it is equally permissible — and a lot more efficient — to indicate, where the property is first mentioned, that it is “(hereinafter called ‘the Ipswich property’)”.

Secondly, it is also very common (and also entirely unobjectionable) to divide numbered paragraphs into sub-paragraph and sub-sub-paragraphs. Indeed, this practice is now recognised in the UCPR, which provide by rule 146(1)(f) that a pleading must “be divided into consecutively numbered paragraphs and, if necessary, subparagraphs, each containing, as far as practicable, a separate allegation”.

Traditionally, paragraphs have been numbered with arabic digits, sub-paragraphs with lower-case letters in parentheses, and sub-sub-paragraphs with lower-case roman numerals (usually also in parentheses). This scheme had the advantage that it is consistent with the common practice for numbering sections, subsections and paragraphs in Acts of Parliament. In recent times, it has become increasingly common to use a digital numbering system, with paragraphs numbered 1, 2, 3; sub-paragraphs numbered 1.1, 1.2, 1.3; and sub-sub-paragraphs numbered 1.1.1, 1.1.2, 1.1.3.

Whichever system is used, one is well advised not to over-use subordinate paragraphs. As a general rule, each separate idea or concept should be the subject of a separate numbered paragraph; each separate numbered paragraph should have no more than three or four sub-paragraphs, or half a dozen at most; the same applies to sub-sub-paragraphs; and using any more than three levels of paragraph numbering (paragraphs, sub-paragraphs and sub-sub-paragraphs) should be avoided at all costs.

Of course, what I have proposed as a “general rule” is entirely arbitrary, and doubtless there are arguments which can be made for departing from this “general rule” in particular circumstances. But experience has shown that more extensive use of subordinate paragraphs just creates confusion.

This is perhaps best illustrated by a pleading which I recently saw, the first paragraph of which (changing the details to protect the guilty, but without any exaggeration) was in this form: 

1. At all material times: (a) the Plaintiff was: (i) a natural person; (ii) born on [date]; (iii) a male person; (iv) employed: a. between [date] and [date] as a storeman and packer; and b. between [date] and [date] as a taxi driver; (v) unemployed between [date] and [date]; (vi) in the course of his employment: a. as a storeman and packer, in receipt of income and allowances comprising: i. base salary of [amount] per week; ii. overtime of: A. [amount] per week in the period from January to October of each year; and B. [amount] per week in the months of November and December of each year; b. as a taxi driver, in receipt of income averaging [amount] per week; (vii) whilst unemployed, in receipt of unemployment benefits of [amount] per fortnight; (viii) a married man; (ix) the father of three children, namely: a. x, aged 6 years; b. y, aged 4 years; and c. z, aged 1 year; (x) a person whose sporting and recreational activities, prior to the accident referred to below, included: a. scuba diving; b. touch football; and c. bushwalking; (xi) since the accident referred to below: a. unable to participate in scuba diving; b. only able to play touch football: i. for limited periods of time; and ii. in a lower grade; and c. only able to engage in bushwalking: i. on level tracks and pathways; and ii. for distances of not more than 5 kilometres; (xii) [etc. etc.]; (b) the First Defendant: (i) was a company duly incorporated; (ii) carried on the business of operating a warehouse located at [address]; (iii) had, as its directors: a. the Second Defendant; and b. until [date], the Third Defendant; (iv) had, as its shareholders: a. NMO Pty Ltd, a company: i. of which the Second Defendant is the sole director; ii. of which the Second Defendant is the sole shareholder; iii. which acts as trustee of the NMO Family Trust for the benefit of the Second Defendant’s family; and b. PQR Pty Ltd, a company: i. of which the Third Defendant is the sole director; ii. of which the Third Defendant is the sole shareholder; iii. which acts as trustee of the PQR Family Trust for the benefit of the Third Defendant’s family; (c) the Second Defendant was: (i) a natural person; (ii) a director of the First Defendant as: (a) until [date], one of two directors together with the Third Defendant; and (b) from [date], its sole director; (iii) the sole director of NMO Pty Ltd; (iv) the sole shareholder in NMO Pty Ltd; (v) a person whose family were the beneficiaries of the NMO Family Trust of which NMO Pty Ltd was the trustee; (vi) [etc. etc.] (d) the Third Defendant was [etc. etc.]

Thirdly, though this is a point so obvious that it should be unnecessary to state it, there is no reason to use a subordinate paragraph where there is only one subordinate paragraph. Yet this occurs with surprising frequency. For instance, a numbered paragraph might read:

##. The said contract was terminated, in that: (a) the Defendant repudiated the contract by: (i) a letter dated [date] from the Defendant to the Plaintiff; (b) the Plaintiff accepted the Defendant’s said repudiation by: (i) a letter dated [date] from the Plaintiff to the Defendant.

One can only surmise two possible explanations for such a curious form of pleading. Perhaps it is the result of counsel’s slavish adherence to a pleading precedent in another case, where there was (in each instance) more than one item of correspondence comprising the repudiation and the rescission. Or perhaps counsel drafted the “skeleton” of the pleading, leaving it for instructing solicitors to complete details which were not contained in counsel’s brief. In any event, there is no sensible reason why this paragraph should not simply read:

##. The said contract was terminated, in that: (a) the Defendant repudiated the contract by a letter dated [date] from the Defendant to the Plaintiff; and (b) the Plaintiff accepted the Defendant’s said repudiation by a letter dated [date] from the Plaintiff to the Defendant.

Fourthly, where the document comprising a pleading also contains a prayer for relief — for example, in a statement of claim or a counterclaim — the prayer for relief does not form part of the pleading, and should be numbered separately. If the paragraphs of the pleading are designated by arabic numerals, it is common for the paragraphs in the prayer for relief to be designated by arabic numerals in parentheses.

Fifthly, and finally, be wary of automated paragraph numbering systems available through word processing software. Like anything automated, such systems are prone to malfunctioning. They can be very convenient and useful, until the document is emailed or otherwise electronically transferred — for instance, by junior to senior counsel, or by counsel to the instructing solicitor — and is then amended on another computer with slightly different software settings. Almost invariably, this results in the paragraph numbering getting displaced and distorted.

This, at any rate, is the most generous explanation for the frequency with which one sees pleadings that have two (and sometimes more) paragraphs with the same number, or which omit certain numbers altogether. Other common discrepancies are where the numbering of sub-paragraphs continues from one numbered paragraph to the next, so that sub-paragraphs 1(a) to (f) are followed by 2(g) and 2(h), or where the entire pleading starts renumbering from an arbitrary point part way through.

As I have said, the explanation offered is the most generous one which comes to mind. A less generous critic might suggest that the problem is merely a lack of care, possibly on the part of counsel, more commonly on the part of the instructing solicitors. In any event, it is an easy problem to deal with, and one which should be addressed by everyone who is conscious, either of their duty of care to their clients, or of their image as members of a learned profession.

Anthony J H Morris QC
T.J.Ryan Chambers

 

Footnotes

1. I suspect in Victoria, but only because that is where I first encountered it.
2. [1997] FCA 1040
3. [1936] 1 KB 697, 712
4. (1985) 7 FCR 109, 112-114
5. (1990) 92 ALR 395
6. (1996) ATPR ¶41-522 at 42,679
7. unreported, 12 May 1992
8. (1985) 7 FCR 109, 111-113
9. Goldsmith v. Sandilands, [2002] HCA 31 per Gleeson CJ at para.[2]: “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’: Bruce v. Odhams Press Ltd, [1936] 1 KB 697 at 712-3”.
10. see, eg., Bruce v. Odhams Press Ltd, [1936] 1 KB 697; Sammy Russo Meat Supplies Pty Ltd v. Australian Safeway Stores Pty Ltd, [1998] FCA 1192
11. Pinson v. Lloyds and National Provincial Foreign Bank Limited, [1941] 2 KB 72 at 75; H 1976 Nominees Pty Limited v. Galli, (1979) 40 FLR 242 at 246-7; Sydney Airport Corporation Limited v. Baulderstone Hornibrook Engineering Pty Limited, [2003] NSWSC 486
12. Saunders v. Jones, (1877) 7 Ch D 435 at 451; R v. Associated Northern Collieries, (1910) 11 CLR 738 at 740; Bruce v. Odhams Press Limited, [1936] 1 KB 697 at 712-3; McSpedden v. Harnett, (1942) 42 SR (NSW) 116 at 119; Bailey v. Federal Commissioner of Taxation, (1977) 136 CLR 214 at 219, 220, 221; Dare v. Pulham, (1982) 148 CLR 658 at 664.
13. In Robinson v. Laws, [2001] QCA 122, the Court of Appeal noted that the pleading of alternative innuendo meanings by a defendant in a defamation action is appropriate on the footing that: “The defendant may deny the meaning alleged, and may — perhaps must under rule 166(4) of the Uniform Civil Procedure Rules — identify any different meaning said to arise, by way of explaining the denial” (per de Jersey CJ, para. [51]).
14. see Concrete Constructions (NSW) Pty Ltd v. Nelson, (1990) 169 CLR 594

Your Honour, I have an ex parte application.

I know that your Honour has firmly eschewed a formal valedictory ceremony. Nevertheless, on behalf of the barristers of Queensland I seek your leave to make a few remarks.

The basis of my application is that the occasion demands it.

Perhaps it would be appropriate to postpone the decision on whether leave should be granted until your Honour has heard the substance of my submissions.

Your Honour’s appointment to this Court a little over 6 years ago raised the eyebrows of some. It is a concrete mark of your Honour’s success that they have all been comfortably back in place for a long time now.

Recently one of your brother Judges who many would expect to have a very different philosophy to your Honour’s, told me that the quality he admired most about you was your complete intellectual honesty. It is common to hear the best of Judges praised for their high intelligence, legal learning, experience and capacity for hard work and your Honour possesses these qualities. But armed with all of these attributes a person can still be a failure as a Judge because he or she has been false to their judicial oath. The oath your Honour took required that you decide the cases that came before the Court according to law without prejudice of any kind. It is not an easy thing to do but the Bar shares the opinion of your colleague that your Honour retires from this scene with a perfect record on this point.

In highlighting this I should not be taken to suggest that you have slavishly followed a well trodden path. On the contrary, you have always deserved your reputation as someone who can be expected to approach issues from a slightly different perspective. A Court such as this which is charged with not only presiding over individual cases but also with the task of determining them in ways which ensure the orderly fair and consistent development of the law in this state can only benefit from a different approach such as yours. I submit with certainty that it is accepted by the Bar that you have added an important, different and valuable dimension to the work of the Court.

This independence and individual perspective should have been expected. There were signs of it as early as when you arrived for your first day at the prosecutions branch of the old Solicitor-General’s Office with long hair, a leather jacket and a bike helmet much to the horror of the traditionalists who ruled there then. Interestingly you were not the only one to set tongues wagging — Philip Nase was of a similar disposition. Eventually you must have decided that your rakish image was better suited to the other end of the bar table and you moved to the Public Defender’s Office where such subversive appearance scarcely rated a mention. As we know, deep down people often change little so your Honour’s departure marks a sad moment in the Court’s history. The departure of its last hippy.

Your appointment rejoined you with the President with whom you had worked many years ago at the Public Defender’s Office.

I detect that the decision to retire early has not been an easy one for you to make. You have close friends on the Court especially the President with whom you worked for many years at the Public Defender’s Office but most importantly because you felt an obligation to perform this important public role. On the other side of the scales lay your family, Bronwen and the twins and perhaps also your refuge at Straddie. While the Bar regards your departure as a great loss to the Court we applaud your decision as the right one. Again, true to your reputation, you have applied the correct principle.

Please accept our sincere congratulations for your fine achievements as a Judge of this important Court and our warm wishes for a long happy and fruitful retirement.

Michael Stewart S.C.
President