Drafting Pleadings 1.

0
1.1 1.2

Drafting Pleadings _________________________________________________________ 2

Purpose of Pleadings ___________________________________________________________ 2 Rules Applicable To All Pleadings _________________________________________________ 3
Formal Requirements and Effect of Non-Compliance with Form _____________________________ 3 Contents of Pleadings (What Should Be In Them) _________________________________________ 4 Particulars in Pleadings ______________________________________________________________ 7 Other Miscellaneous Rules About Pleadings ______________________________________________ 8

1.2.1.1 1.2.1.2 1.2.1.3 1.2.1.4

1.3 1.4

Matters Which Must Be Specifically Pleaded ________________________________________ 9 Statement of Claim (How to Draft) _______________________________________________ 11
Step One: Introductory Statements ___________________________________________________ 11 Step Two: Make Substantive Allegations _______________________________________________ 12 Things to Allege in Defamation _______________________________________________________ 13 Things to Allege in Negligence ________________________________________________________ 22 Things to Allege in Breach of Contract _________________________________________________ 37 Things to Allege in Nuisance _________________________________________________________ 48 Things to Allege in Breach of s 52 TPA (Misleading/Deceptive Conduct) ______________________ 50 Step Three: Do Not Anticipate the Defence _____________________________________________ 54 Step Four: If Liquidated Sum, Plead the Details __________________________________________ 54 Step Five: If Plaintiff Wants Jury, Request It _____________________________________________ 56 General Information About Defences __________________________________________________ 61 Step One: Plead the Admissions ______________________________________________________ 62 Step Two: Plead the Denials _________________________________________________________ 62 Step Three: Plead non-admissions ____________________________________________________ 63 Step Four: Plead Any Set-Offs ________________________________________________________ 64 Precedent: Defences in Defamation ___________________________________________________ 66 Precedent: Defences in Negligence ____________________________________________________ 67 Precedent: Defences in Breach of Contract _____________________________________________ 70 Precedent: Defence in Nuisance ______________________________________________________ 71 Precedent: Defence to Breach of s 52 TPA ______________________________________________ 74

1.4.1.1 1.4.1.2 1.4.1.3 1.4.1.4 1.4.1.5 1.4.1.6 1.4.1.7 1.4.1.8 1.4.1.9 1.4.1.10

1.5

The Defence (How to Draft) _____________________________________________________ 56

1.5.1.1 1.5.1.2 1.5.1.3 1.5.1.4 1.5.1.5 1.5.1.6 1.5.1.7 1.5.1.8 1.5.1.9 1.5.1.10

1.5 1.6 1.7 1.8 1.9 1.10 1.11

Defence and Counterclaim (How to Draft) _________________________________________ 77 Reply (to Defence) by Plaintiff (How to Draft) ______________________________________ 80 Answer (to Defendants Counterclaim) by Plaintiff (How to Draft) ______________________ 81 Challenging / Objecting to Pleadings (Applies to All Pleadings) _________________________ 81 Challenges / Objections to Particulars (Applies to All Pleadings)________________________ 84 Notice to Admit Facts or Documents ______________________________________________ 84 Pleadings Checklist ____________________________________________________________ 86

1.0 Drafting Pleadings

Pleadings are documents exchanged between parties to litigation that set out material facts the parties intend to allege at the hearing. Serve a number of purposes: informing the court of the matters on which its decision is sought; defining the issues, and limiting the ambit of discovery and the evidence which needs to be prepared for trial; providing a record of all the matters involved in the proceeding, thereby preventing further actions between the same parties in relation to those actions.

Reminder on order of pleadings A plaintiff serves a Claim and a Statement of Claim on the defendant which sets out the facts that the plaintiff alleges establish a cause of action against the defendant, and also states the remedy sought (usually the amount of damages) The defendant then serves a Notice of Intention to Defend (either conditional or unconditional) back on the plaintiff to indicate that they do not accept liability or the remedy sought. A Defence will be attached to the NOITD and this document sets out the facts which the defendant says negative the allegations of fact made by the plaintiff in their Claim The defendant might also want to serve a Counterclaim on the plaintiff, setting out some facts which the defendant says establish a cause of action against the plaintiff The plaintiff might want to serve a Reply on the defendant which responds to any allegations of fact in the Defence which require anything more than a simple denial The plaintiff MUST serve an Answer on the defendant in response to a Counterclaim and the Answer works just like a Defence

1.1

Purpose of Pleadings

Serve a number of purposes: informing the court of the matters on which its decision is sought; defining the issues, and limiting the ambit of discovery and the evidence which needs to be prepared for trial; providing a record of all the matters involved in the proceeding, thereby preventing further actions between the same parties in relation to those actions; o so that the parties may be met by the pleas of res judicata or issue estoppel if they seek to relitigate (see Error! Reference source not found. Error! Reference source not found. on pg Error! Bookmark not defined.). may facilitate an early settlement once the parties are aware of the strength or weakness of the other sides case.

Because the purpose of pleadings is to define the issues, this helps the court and the parites know the matters in issue (Bruce v Odhams). A case can only be decided on a different basis to that set out in the pleadings if: the parties agree to depart from what was alleged; and the court permits the departure.

Leave may be granted, even very late in a proceeding, for the amendment of a pleading if the court is satisfied this is necessary for the attainment of justice (Qld v JL Holdings).

Bank Commerciale SA (en liquidation) v Akhil Holdings Ltd

Facts: In 1978 the plaintiff sued the def. bank and two other parties in the NSWSC. Bank alleged the other def. had caused the bank to transfer from its ownership certain shares in a mining company which were held by it in trust for the plaintiff. Each def. filed a defence pleading that the action was statute barred. P did not reply to the banks defence, but in its reply to the defences of the other parties, it alleged that is action was one in respect of a fraudulent breach of trust by the bank. A copy of that reply was served on the banks solicitors. The bank did not appear at trial. Trial judge gave judgment for D. On Appeal, Court found that the bank was a party to the fraudulent breach (a finding which was not available based on the Ps reply to the Banks defence). Bank appealed to High Court. Appeal allowed. A case is only committed to be decided upon a basis thats different to the pleadings if the parties agree to what has been alleged and Courts permit that departure. It would be different if the Bank had been present at the hearing and acquiesced to the course adopted but they were not present. Acquiescence cannot be inferred by the Banks failure to participate Therefore the P was only entitled to such relief as was available on the pleadings.

Held per Mason, Gaudron and Toohey JJ

See pg 441 onwards in TB.

1.2

Rules Applicable To All Pleadings

Formal Requirements and Effect of Non-Compliance with Form

1.2.1.1

Governed by rule 146 UCPR:

146 Formal requirements

(1) A pleading must-(a) state the number of the proceeding; and (b) state the description of the pleading; and (c) be filed and state the date on which it is filed; and (d) be signed by the solicitor for the party filing it or, if the party appears or defends in person, the party; and (e) be consecutively numbered on each page; and (f) be divided into consecutively numbered paragraphs and, if necessary, 3

subparagraphs, each containing, as far as practicable, a separate allegation; and (g) if it is settled by counsel--state the counsel's name. (2) In addition, a pleading (other than a reply) must have on it a notice to the party on whom the pleading is served under rule 164 informing the party about the time for serving pleadings in response under rule 164.

All pleadings must be filed (r 146(1)(c)) and signed (r 146(1)(d)). Effect of Non-Compliance With Formal Requirements A failure to comply with formal requirements is an irregularity only, and does not render anything in the proceeding a nullity (r 371(1)). However, the court may: Set aside all or part of the proceeding (r 371(2)(a)); Set aside a step taken in the proceeding or order made in the proceeding (r 371(2)(b)); Declare a document or step taken to be ineffectual (r 371(2)(c)) or effectual (r 371(2)(d)); Make another order under the rules (r 371(2)(e)); or Make any order dealing with the proceeding as the court considers appropriate (r 371(2)(f)).

An order under rule 371 must set out details of the failure to comply (r 372). A pleading (other than a Reply) must have on it a notice to the party on whom the pleading is served under r 164 informing the party about the time for serving pleadings in response under r 164 (r 146(2)). 1.2.1.2 Contents of Pleadings (What Should Be In Them) (a) be as brief as the nature of the case permits; and (b) contain a statement of all the material facts on which the party relies, but not the evidence by which those facts will be proved; and (c) state any matter which, if not stated, would take the other party by surprise; and (d) state the relief claimed; and (e) if a claim/defence under an Act, the specific provision of the Act.

All pleadings must: (r 149(1)(<insert paragraph number>)):

As Brief as the Nature of the Case Permits (r 149(1)(a)) Keep it short! Extreme repetition of passages in the defences have been held to prejudice the fair trail of the proceeding: Williams J at [97] Robinson v Laws (endless transcript of radio broadcast; defence struck out) HOWEVER it is accepted that some cases result in a statement of claim that is long and involved and this cant be avoided: Midland Milk Pty Ltd Use cross-referencing in pleadings to avoid repeating things you have already said o For example say, the meeting referred to in paragraph 4 of the Statement of Claim.

Robinson v Laws [2001] QCA 122

it is possible by cross- referencing to raise all relevant issues in a clear and straightforward way. At first instance the learned judge observed that "repetition is...often an aid to comprehension, particularly when something is to be conveyed orally". There is truth in that statement, but it is not universally true. The matter must be considered in the light of all the circumstances. Here, the repetition of the passages I have referred to would prejudice the fair trial of the proceeding. The pleading is prolix and vexatious.

Statement of All Material Facts (r 149(1)(b)) Must plead all facts which are necessary to constitute a complete cause of action or defence (Kirby v Sanderson Motors). o That is, those facts that, if proved, would entitle the party to relief. Material facts also extend to the relief being sought and such other facts as will ensure the other party is not taken by surprise. Immaterial facts should not be pleaded (but the rule is relaxed in relation to introductory matters like descriptions of parties, occupations, location of business etc). Must state the facts alleged in a way that allows the other side to understand the materiality of the fact (that is, how it is material to the cause of action/defence). Material facts do not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract etc (Kirby v Sanderson Motors). Facts But Not Evidence o A distinction is drawn between facts, and the evidence by which those facts will be proved. o Facts, which merely evidence the facts establishing the cause of action, should not be pleaded. o Example: do not say: In the course of a conversation over lunch on 5 May 1999, the Plaintiff advised the def. that he was sick of paying a fortune for imported parts for his 1993 Porsche and that he was going to quit it for only $16,000. The def. agreed that this was a good price, and the parties made arrangements for the delivery of possession of the vehicle to the def. on 10 May 1999. Instead, use: On or about 5 May 1999 the Plaintiff orally agreed to buy and the def. agreed to sell for $16,000 a 1993 Porsche motor vehicle. Facts vs Conclusion of Law / Point of Law o Generally not required to plead the legal consequences flowing from the facts relied on. It is for the court to declare the law. o A pleading will be sufficient if it pleads the essential ingredients of a cause of action/defence, and puts the other party in a position to know the case to be met at trial. o For example, dont have to say 2nd defendant owns the motor vehicle, thereby giving rise to an action in vicarious liability against them. Can just say 2nd defendant owns the vehicle driven by the 1st defendant in the accident. This is enough for the court to infer an allegation of vicarious liability (Creedon v Measy Investments). 5

o However, sometimes a pleading will be more intelligible if it sets out the conclusion for which the pleader contends. o Therefore, a party may choose to state the conclusion of law, but must also plead the material facts leading to that conclusion (r 149(2)). Even if do this, can ask the court to draw a different conclusion of law at trial (ie can diverge from pleaded conclusion when at trial) (Re Vandervells Trusts). o For example, with negligence, you need to disclose information relevant to Duty, Breach and Damage. A Matter Which, If Not Plead, Would Take The Other Party By Surprise (r 149(1)(c)) Requirement to avoid surprise means that material facts must be stated in a way that a defendant can understand the materiality of the facts (i.e. how they are material to the case) (Kirby v Sanderson Motors per Hodgson JA, Mason P & Hanley JA agreeing).

Must Include the Relief Claimed (r 149(1)(d)) The relief/remedy sought must be stated (prayer for relief). For example, defamation = do you want an apology, retraction, damages, punitive damages etc But under r 156 the court may also award other general or non-specific relief not stated in the evidence if the evidence shows that the relief claimed by the pl is inadequate. E.g. the pl lists the principal orders sought but the court may order further or general relief to make the orders effective The rules require that the pleading state the nature and amount of damages claimed (see later under particulars for damages) r 155 The QCA has indicated that the details in relation to damages as required by rr 150(1)(b) and 155 should appear as allegations in the body of the statement of claim and not only in the prayer for relief. In appropriate circs, however, the claims for relief in the prayer for relief may simply refer back to the amounts or matters pleaded in the relevant paragraphs of the statement of claim: Meredith v Palmcam Pty Ltd Also, the UCPR requires that a claim for interest to the date of judgement should be pleaded. Also the pl must allege particulars of the amount(s) on which interest is claimed, the interest rate(s) claimed and the method of calculation: r 159 but NOT for proceedings for damages for PI or death (r 159(2)) Example It is not sufficiently particularized to say overcharge instead say charged higher than amount agreed to in corporate menu and the amount of the specific relief claimed for that issue.

Claim/Defence Under Act, Must Plead Specific Provision (r 149(1)(e)) To plead the statutory provision complies with the general obligation to inform the other side of the case to be answered and not take them by surprise. It also makes the pleading more meaningful and intelligible. State the Act and the section number relying on (eg the conduct referred to in paragraph 6 of the Statement of Claim was in contravention of s 52 Trade Practices Act 1974 (Cth)). 6

1.2.1.3

Particulars in Pleadings

Party must include particulars necessary to: r157 (a) define the issues for, and prevent surprise; and (b) enable the opposite party to plead; and (c) support a matter specifically pleaded under rule 150. Eg. [10] says guests suffered gastro-intestinal, would need to plead more information/particulars: cost of medical damages, who got it, what is it, medical reports said ____, when, how dealt with, costs, damages listed, names of ill guests (to make connection with off food). Eg. what is expectation, can you sue for it. In particulars need to plead what stage in tender process, only two competitors, always won tenders in the past. IF in doubt court favours the defendant: Where there is doubt about the sufficiency of particulars, it is resolved in favour of the defendant, so as to ensure their being in a position to fully understand and prepare for the case alleged against them: R v Associated Northern Colleries (per Isaacs J). If seeking order for better and further particulars: Party may seek an order for better and further particulars under r161 in the form of an interlocutory application. There is a lot of discretion when ordering for better and further particulars, including situations where there is no legal power, but merely a moral obligation: Bailey v FCT (per Gibbs J). IF Negligence Action: In negligence action need to include enough particulars to ground negligence rather than only very specific claims: Doonan v Beecham.

Doonan v Beecham Facts: Plaintiff hit by motor vehicle driven by defendant. SOC set out number of particulars with respect to the allegned negligence. (e.g. speed, wrong side of road, failure to look, failure to slow down when danger arose, failing to apply brakes). Held: Trial Judge (overturned) could not infer on the evidence that accident was due to any particular cause particularised and therefore ordered jury to find for defendant. High Court held as long as could be reasonably inferred from all the evidence available within the pleadings and particulars that accident was due to the negligence of the defendant then it was permissible to find for the plaintiff. 7

IF Claiming Award of Interest: If party intends to apply to the court for an award of interest: r159(1) (2) Does not apply to a proceeding for damages for personal injury or death; (3) Party must allege in the partys pleadings particulars of: (a) amount or amounts on which the interest in claimed; (b) the interest rate or rates claimed; (c) the day or days from which interest is claimed; and (d) the method of calculation. (4) However the rate/s of interest need not be separately specified if the party is claiming at the rate/s specified in a practice direction. Philosophical Basis: Function of pleadings and particulars not to circumscribe the cause of action sued on but to limit the issues of fact to be investigated: Katsilis v Broken Hill.

1.2.1.4

Other Miscellaneous Rules About Pleadings

Documents and Conversations Where the effect of a document/conversation is material but not the particular words used, just plead the effect of the document (r 152). If there is controversy in relation to the construction of a document (or words spoken), the material words alleged should be set out in the pleading in full (r 152).

Conditions Precedent Generally, a plaintiff need not specifically plead the performance of any condition precedent, because it is already implied in the pleading (r 153(1)). If the party is denying performance of a condition precedent, or the occurrence of a condition precedent, then this must be specifically plead (r 153(2)).

Presumptions No requirement to plead any matter of fact which the law presumes in their favour, or which the other party bears the onus of proof (r 151(1)). o For example, in defamation the falsity of defamatory words is presumed and the burden of proving the truth of the imputations is placed on the defendant (A v Ipec Australia). However, must still plead presumptions where it is necessary to comply with r 149 or to deny an allegation.

Inconsistent Pleadings You are allowed to make inconsistent allegations in your pleading, but you must be pleaded in the alternative (r 154(1)). However, a party cant make an allegation or a new claim in a pleading if that is inconsistent with an allegation in another pleading of that party unless the previous pleading is amended (r 154(2)).

1.3

Matters Which Must Be Specifically Pleaded

The following matters must be specifically plead (r 150(1)(<insert para>)): (a) breach of contract or trust; i. include information about offer, acceptance, consideration, intention to create legal relations, certainty, capacity. (b) every type of damage (including special/exemplary damages); i. State information about the nature of the loss suffered, the exact circumstances in which it was suffered, and the basis on which the amount claimed is worked out or estimated (r 155) ii. Compliance is mandatory (cannot say particulars will be given later etc) (Meredith v Palmcam). iii. Statements of particulars necessary for compliance with this subrule should appear as allegations in the body of the statement of claim and not only in the prayer for relief (Meredith v Palmcam) iv. Within 28 days of the close of pleading plaintiff must serve a written statement of loss and damage: r 547 (c) defence under LOAA (a statute-barred claim); i. where a time limitation has expired (d) duress; (e) estoppel; i. including res judicata and issue estoppel (Stereff v Rycen & Anor [2010] QDC 117 @ [187]-[190] per Irwin DCJ). 1. Defendants did not plead res judicata and issue estoppel in their defence, but sought to raise it in the final address (when claim was almost 4.5 years old). 2. HELD: too late in proceedings to give leave to amend, did not plead, therefore court cannot consider the estoppels. (f) fraud; i. Needs to expressly state allegation and facts to constitute the fraud: Millhouse v Environautics (Sale of goods, seller sold goods of a lesser value than the contract price stated; McGill J wouldnt necessarily have to state contract price and real value was, but if you can you would to narrow the litigation; in that case they should have though) (g) illegality; i. Subrule 150(1)(g) requires that illegality must be specifically pleaded. If however, illegality of a contract is brought to the attention of the court at trial and it appears that the plaintiff was implicated in that illegality the court will refuse to enforce the contract, even if the defendant has not raised the illegality by way of defence: Shimmin v Doherty [1918] St R Qd 213 at 223; Montague v Pooley [1951] St R Qd 291 at 296-7. (h) interest (state rate + method of calculation); 9

(i) malice or ill will; (j) misrepresentation; (k) motive, intention, knowledge, notice (or other condition of mind); i. Does not require that anything more than the existence of knowledge as a material fact be expressly pleaded where a party is proposing to rely on the existence of that knowledge in establishing a cause of action or defence. Even if something further ought to be provided by way of particulars, such as, in the case of a corporation, who on behalf of the corporation is alleged to have had the relevant knowledge, that is a matter which is, in my opinion, properly dealt with, if not pleaded initially, by a request for particulars, and if necessary an order for particulars, under r.161. It is not a ground for striking out the pleading for failure to comply with r.150 (Millhouse v Environautics per McGill DCJ @ [21]). (l) negligence or contributory negligence; (m) payment; (n) performance; (o) part performance; (p) release; (q) undue influence; (r) voluntary assumption of risk; (s) waiver; (t) want of capacity, including disorder or disability of mind; (u) testator did not know or approve contents of will; (v) will not properly made; (w) wilful default (x) anything else required (by approved form/practice direction). In addition, any fact from which any of the above can be an inference must be specifically pleaded (r 150(2)). If Suing For A Liquidated Amount (Debt or Demand) A debt or liquidated demand is a claim for a specific sum of money, fixed by a scale or formula which does not depend on the court forming any opinion (Spain). If you are claiming for a debt or liquidated demand, you must state the following things in the statement of claim (r 150(3)): (a) (b) (c) (d) particulars of the debt; particulars of interest; the amount claimed for costs in issuing claim and statement of claim; a statement that the proceedings end if the defendant pays before 28 days from service; and (e) a statement of the additional costs of default judgment. Check relevant info at the end of Form 16 in relation to r 150(3):

10

NOTICE UNDER RULE 150(3)

The plaintiff claims: $................... $.................... for interest; and $....................for costs of issuing the claim and this statement of claim. The proceeding ends if you pay those amounts before the time for filing your notice of intention to defend ends. If you are in default by not filing a notice of intention to defend within the time allowed, the plaintiff is entitled to claim additional costs of $............., costs of entering judgment in default.

1.4

Statement of Claim (How to Draft)

Statement of Claim is used by the plaintiff and must be attached to a Claim (Form 2) (r 22(2)(b)). The approved form for a Statement of Claim is Form 16. A Statement of Claim must disclose a cause of action. Information on how to disclose causes of actions are in the specific sections below. Basically, to disclose a cause of action you must make out each of the elements of the action.

1.4.1.1

Step One: Introductory Statements

Introductory statements should: State who the parties are; How the parties are connected to each other by reference to the dispute; If any party is a corporation, an allegation that the party is and was at all material times incorporated, and entitled to sue or be sued in its own name (Moldex v Recon Ltd); If any party is acting in a representative capacity, state the nature of the involvement; In the District and Magistrates Courts, state facts establishing the courts jurisdiction.

Examples: The first defendant is and was at all times a company duly incorporated in Queensland. The second defendant was at all material times a director of the first defendant. 11

The plaintiff is a company duly incorporated and having its registered office at 16 Smith Street, West End, Brisbane in the State of Queensland. The plaintiff is a female born on 15 July 1993. the first defendant was the registered proprietor of land and premises situated at .and bearing real property description the first defendant was the occupier of the car park area situated on the property described in paragraph 2(c). the second defendant was the registered lessee of part of the ground floor of the building erected on the property described in paragraph 2(c), and the second defendant traded in those premises under the name Pizza Perfect. The plaintiff brings these proceedings in a representative capacity on behalf of himself and all other proprietors of small crop farms (the represented farmers) who suffered damage to their water systems and crops through the conduct of the defendant referred to herein.

1.4.1.2

Step Two: Make Substantive Allegations

Here, you should set out the material facts relied on to support the claim: allege facts that will, in law, justify the court in awarding the relief sought. Go through what happened, usually chronologically, and set out why what happened will give rise to a cause of action against the defendant.

12

1.4.1.3 Need to:

Things to Allege in Defamation

Identify the defendant as the publisher of the material; and o Eg: The first defendant published a magazine entitled Totally True Magazine on or about 15 May 2010. Show that the statement was reasonably referable to the plaintiff; and o Eg: The statement published by the first defendant referred to the plaintiff [by name]/[by its well known alias etc]. State the actual words used; and o Eg: The first defendant published the words Nick Dowses notes are so shit compared to the Hill Notes and Matt Robinsons notes he is just a shit person. o You must state the actual words used so that the court can judge whether the words are capable of defamatory meaning, and so the defendant can know the precise charge which is made against him (Ron Hodgson v Belevedere Motors) Identify the defamatory imputation conveyed by the words; and o Eg: The imputation conveyed by the first defendants statement is that the plaintiff is a person of bad character. Set out all the facts in relation to the precise publication alleged; and o State who published it, what was published and where it was published o Eg: The first defendants magazine was published around Australia and internationally, and all print editions contained the defamatory imputation particularised in paragraph X. Facts about the nature and extent of damages that occurred as a result. o Eg: As a result of the first defendants publication, people have stopped downloading the plaintiffs notes from his website which used to receive thousands of visitors annually. The defendants statements have lowered the plaintiff in the estimation of other law students. The plaintiff has suffered losses of $XXX,000.00 per day each day since the magazine was published.

Mere surplusage does not vitiate the pleading, but is poor drafting practice (Ron Hodgson).

13

Example Defamation Precedents

General form of heading and conclusion for the Supreme Court: based on an oral defamation; false innuendo; plaintiff named
BETWEEN: [name of plaintiff] AND: [name of defendant] Filed in the [insert] registry on [date] Plaintiff Defendant

STATEMENT OF CLAIM
This claim is proceeding in reliance on the following facts: 1. At all material times to this action: (a) the plaintiff was and is a dairy farmer carrying on business in the [ name of district] district of Queensland; (b) the defendant was and is a dairy farmer carrying on business in the [ name of district] district of Queensland.

2. On the [date], at [place] the defendant spoke and published of and concerning the plaintiff to one [name] these words:

I am surprised to see you in company with [name of plaintiff]. He is not the sort of person any decent man should be seen with.

3. The said words in their natural and ordinary meaning meant and were understood to mean that the plaintiff: (a) was a person of bad character; (b) lacked moral probity.

4. The said meanings set forth in the immediately preceding paragraph were defamatory of the plaintiff. 5. By reason of the publication of the words set forth in paragraph 2, the plaintiff has been injured in his personal [and business] reputation. 6. The plaintiff claims the following relief: (a) damages for defamation in the sum of $[amount];1. (b) interest;2. (c) costs.

The plaintiff [requires/does not require] the action to be tried by a jury. Signed: ............ [signature]

Description: Solicitors for the plaintiff This pleading was settled by [name]

FOOTER!!

NOTICE AS TO DEFENCE
Your defence must be attached to your notice of intention to defend.

14

Defamation; Newspaper article; false innuendo; plaintiff not named; special damages; aggravated damages
BETWEEN: [name of plaintiff] AND: [name of defendant] Filed in the [insert] registry on [date] Plaintiff Defendant

STATEMENT OF CLAIM
This claim is proceeding in reliance on the following facts:

1. At all times material to this action: (a) The plaintiff was and is a sports promoter with [name of promotions company] and has featured in a number of television advertisements and programs in that capacity; (i) [insert particulars of the program]; (b) the defendant was and is a company duly incorporated; (c) the defendant was and is the publisher of the newspaper, [name of newspaper]; and (d) the [name of newspaper] has a wide circulation in Brisbane and throughout Queensland.

2. In the edition of [name of newspaper] published on [date] at [page] the defendant published of and concerning the plaintiff the following words: An Australian tennis player of the year, now a prominent sports promoter has been taking more than his fair share of trips overseas recently. He has been seen in the company of [name] who has numerous drug-related convictions and their association may explain the frequent overseas jaunts.

3. The said words were published of and concerning the plaintiff in that: (a) the plaintiff was voted Australian tennis player of the year in [year]; (b) the plaintiff has been overseas on the following dates: (i) [insert details of overseas trips]; (c) the plaintiff appeared in a recent photograph with [name of person identified paragraph 2] published in the [insert details of the publication of the said photograph]; (d) further the plaintiff relies on the matters set out in paragraph 1(a) herein.

4. The said words would have been understood to refer to the plaintiff by numerous

15

readers of [name of newspaper] and in particular those who are sports enthusiasts. 5. Further the said words were understood to refer to the plaintiff by: [insert names and addresses of persons who identified the plaintiff with the publication in paragraph 2]. 6. The said words in their natural and ordinary meaning meant and were understood to mean that the plaintiff: (a) was a drug trafficker; (b) was an associate of criminals; and (c) was of bad character.

7. The words set forth in paragraph 2 herein were defamatory of the plaintiff. 8. By reason of the publication of the words set forth in paragraph 2, the plaintiff has been injured in his personal [and business] reputation. or, where the plaintiff has suffered an identifiable pecuniary loss

8. By reason of the publication of the words set forth in paragraph 2 herein the plaintiff has been injured in his personal and business reputation and in particular the businesses [name businesses] which had formerly paid the plaintiff to endorse their products in advertisements of same, have withdrawn the said endorsements and the plaintiff has thereby lost income and other benefits associated with the endorsement agreements.

PARTICULARS
[insert particulars of special damages1. ]

9. By reason of the matters set forth in paragraph [insert as appropriate] the plaintiff is entitled to an award of aggravated damages. 10. The plaintiff claims the following relief:2. (a) damages for defamation in the sum of $[amount], including aggravated damages;3. (b) special damages (c) interest;4. (d) costs.

16

Defamation by advertisement; named; exemplary damages

BETWEEN: [name of plaintiff] AND: [name of defendant] Filed in the [insert] registry on [date]

false

innuendo;

plaintiff

not

Plaintiff Defendant

STATEMENT OF CLAIM
This claim is proceeding in reliance on the following facts: 1. At all times material to this action: (a) the plaintiff owned and operated an automotive repair and service business under the style or firm name of [name of plaintiff's business] (hereinafter referred to as the plaintiff's business); (b) the plaintiff's business is and was an authorised Royal Automotive Club of Queensland (RACQ) Service Centre; (c) the defendant has owned and operated an automotive repair and service business which trades under the firm or style name of [name of defendant's business] (hereinafter referred to as the defendant's business); (d) a publication called Fantasie Times: (i) is and was published by the Fantasie Chamber of Commerce; (ii) is and was published monthly; (iii) carries advertisements at a charge to the person or entity placing such advertisement; (iv) is distributed to various business outlets situated in or about Fantasie for distribution to members of the public visiting the said business outlets, free of charge; and (v) has a wide circulation in the Fantasie district.

2. In the 1987 April edition of the Fantasie Times the defendant caused to be printed and published, an advertisement measuring 17.5 cm x 9.7 cm to advertise the defendant's business in which appeared (inter-alia) the following words: [name of plaintiff's business]

Formerly at Calso

Ph: [number] NOW AT OLD RACQ

17

OLD FASHIONED SERVICE AT OLD FASHIONED PRICES NED KELLY DOESN'T WORK HERE ANYMORE 3. The said words Ned Kelly doesn't work here anymore referred to and were understood to refer to the plaintiff in that: (a) at the time of publication of the said advertisement the defendant's business was and is situated at [address] (the defendant's current premises); (b) the defendant's current premises had, up to 15 March 1987, been occupied by the plaintiff who had carried on the plaintiff's business including the RACQ Service Centre from those premises from 1 January 197515 March 1987; (c) the defendant's business had moved to the defendant's current premises on or about 1 April 1987; and (d) the plaintiff's business had relocated to [address] Fantasie on or about 20 March 1987.

4. The said words would have been understood to refer to the plaintiff by many persons who are resident in Fantasie and the surrounding district. 5. Further, the said words were understood to refer to the plaintiff by: (a) [insert in paragraphs numbered from (a), the names and addresses of any persons who can give evidence for the plaintiff that on reading the advertisement they believed that the said words referred to the plaintiff;]

6. The said words in their natural and ordinary meaning meant, and were understood to mean, that the plaintiff: (a) lacked commercial probity; (b) improperly used his position as the local RACQ Service Centre to charge unfair and unreasonable prices to members of the public attracted to the plaintiff's business by virtue of its being an RACQ Service Centre; (c) charged exorbitant and unreasonable amounts in respect of work done for and materials provided to the public in the course of the plaintiff's business; (d) was dishonest in the operation of the RACQ Service Centre conducted by him; and (e) was a person unsuited by virtue of the unfair and unreasonable prices charged by him to conduct a registered RACQ Service Centre.

7. The words set forth in paragraph 2 were defamatory of the plaintiff. 8. The meanings set forth in paragraph 6 were calculated to, and did, disparage the plaintiff in his personal reputation and in his said trade or business as an automotive repair and service centre. 9. At all times material to this action the defendant was in a position to derive a pecuniary benefit from damage done to the plaintiff in the way of his trade or business.

18

PARTICULARS
10. By virtue of the matters set forth in paragraph 9, the plaintiff claims aggravated damages.

PARTICULARS
11. The plaintiff claims the following relief:1. (a) damages for defamation including aggravated damages in the sum of $[amount]; (b) interest; (c) costs;

The plaintiff [does/does not] require a jury. Signed: ............ [signature] Description: Solicitors for the plaintiff This pleading was settled by [name]

NOTICE AS TO DEFENCE
Your defence must be attached to your notice of intention to defend.

19

Television broadcast; false innuendo; plaintiff named

BETWEEN: [name of plaintiff] AND: [name of defendant] Filed in the [insert] registry on [date] Plaintiff Defendant

STATEMENT OF CLAIM
This claim is proceeding in reliance on the following facts: 1. At all material times: (a) the plaintiff was and is [insert as appropriate]; (b) the first defendant was the on-camera reporter of the program [name of program]; (c) the second defendant was the producer of the aforesaid program; (d) the third defendant is a company duly incorporated being a licensed operator of Channel [name of channel] transmitting for general reception in Queensland, television programs, and in particular, that program known as [name of abovementioned program]

2. On 10 June 1985 during the course of [insert name of the television program] in which the first defendant was interviewing the federal member for Fantasie, the first defendant published and the second and third defendants caused to be published of and concerning the plaintiff by visual images, words and gestures the matters set forth hereunder: I was surprised to see that a person in your position as a holder of public office, has renewed your association with [name of plaintiff], given the questionable associations he maintains and his rumoured involvement with the now defunct [name of trust] investment trust whose investors lost millions in circumstances where fraud and misappropriation were established.

3. The said words, I was surprised to see that a person in your position as a holder of public office, has renewed your association with [name of plaintiff] in their natural and ordinary meaning meant and were understood to mean that the plaintiff: (a) was unfit to be an associate friend of a person in public office; (b) was a person of bad character.

4. The said words given the questionable associations he maintains in their natural and ordinary meaning meant and were understood to mean that the plaintiff: (a) was an associate of criminals; and (b) was an associate of persons who associated with criminals.

5. The said words and his rumoured involvement with the now defunct [name of

20

trust] investment trust whose investors lost millions in circumstances where fraud and misappropriation were established in their natural and ordinary meaning meant and were understood to mean that the plaintiff: (a) conducted his business dealings in an unethical manner; (b) lacked commercial probity; and (c) unethically secured his personal advantage in his business dealings at the expense of others.

6. The words set forth in paragraph 2 were defamatory of the plaintiff. 7. By reason of the publication of the words set forth in paragraph 2 the plaintiff has been injured in his personal [and business] reputation. 8. The plaintiff claims the following relief:1. (a) damages for defamation including aggravated damages in the sum of $[amount]; (b) interest; (c) costs; The plaintiff [does/does not] require a jury. Signed: ............ [signature] Description: Solicitors for the plaintiff This pleading was settled by [name]

NOTICE AS TO DEFENCE
Your defence must be attached to your notice of intention to defend.

21

1.4.1.4 Need to:

Things to Allege in Negligence

Show the defendant owed a duty of care to the plaintiff; and o A manufacturer owes a duty of care to prevent injury to persons when it is reasonably foreseeable that they would use the manufactured goods: Donoghue v Stevenson [1932] AC 562. o An occupier of premises owes a duty of care to persons entering the premises in respect if risks of physical injury arising from the condition of the premises: Australian Safeway Stores v Zaluzna (1987) 162 CLR 479. o Employers owe their employees a duty to take reasonable care not to expose them to unnecessary risk of injury. The scope of the duty is to provide the employee with a safe system of work, safe plant and equipment and competent supervisory staff: Smith v Charles Baker & Sons [1891] AC 325. o Drivers of motor vehicles owe a duty of care to passengers and other road users. The scope of the duty is to use proper care not to cause injury to persons on the highway or in premises adjoining the highway: Cook v Cook (1986) 162 CLR 376. o Doctors owe patients a duty of care in the provision of diagnosis, treatment and advice: Rogers v Whittaker (1993) 175 CLR 479. o School authorities/teachers owe a duty of care to students. The duty is to take such precautions for safety on the occasion in question as a reasonable parent would have done in the circumstances: Geyer v Downs (1978) 138 CLR 91. o Solicitors owe a duty of care to their clients to exercise reasonable care in the provision of their services: Hyland v Campbell (1995) Aust Torts Reports 81-352. Demonstrate how the defendant breached that duty; and o Eg: The defendant breached her duty of care to the plaintiff because she did not take off the blindfold before swinging the machete at the plaintiffs beautiful face. o Eg: The defendant knew or should have known what was occurring at the pontoon was dangerous and should have taken steps to stop helicopters landing there. (McCauley v Hamilton Island Enterprises) Show the damage suffered by the plaintiff as a result of the defendants breach. o Eg: As a result of the defendants failure to remove the knife from inside the toaster, the plaintiff suffered an egregious electrical shock, causing his eyeballs to pop out of his head and fall onto the ground, from which the family dog ate them for dinner. The plaintiff has been unable to work as a professional pornography watcher since losing his eyesight, causing him to suffer $123,447.57 per hour in lost wages.

A court will not strike out a claim just because it appears unlikely that it will succeed. This is subject to the qualification that the claim must not be an abuse of process etc ( McCauley v Hamilton). Its not enough to just allege that the defendant was negligent. Need to show duty, breach, damage (McCauley).

22

Example Negligence Precedents

DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: BD . of 2011 PLAINTIFF: AMANDA MUSCLES by her Litigation Guardian Tom Muscles AND FIRST DEFENDANT: AND SECOND DEFENDANT: PERFECT PIZZA PTY LTD (ACN) PROPERTY PLUS PTY LTD (ACN.)

STATEMENT OF CLAIM This claim in this proceeding is made in reliance on the following facts: 1. At all material times to this action, the plaintiff: (a) was a natural person residing at 44 Tennis Ball Lane, Everton Park, Brisbane in the State of Queensland; (b) was female; and (c) was born on 15 July 1995. 2. At all material times to this action, the first defendant: (a) was a company incorporated under the Corporations Act 2001 (Cth); (b) was the registered proprietor of land located at Dolly Street, Everton Park, Brisbane in the State of Queensland, more particularly described as Lots on RP (the Site); (c) was the registered proprietor of premises situated at the Site; (d) was the occupier of the car park area situated on the Site (Car Park). 3. At all material times to this action, the second defendant: (a) was a company incorporated under the Corporations Act 2001 (Cth); (b) was the registered lessee of part of the ground floor of the building erected on the Site on the registered lease more particularly described as Queensland Department of Natural Resources and Water, Dealing Number (Pizza Perfect Premises); and (c) traded in those premises as a retailer of fast food, including pizzas, under the name of Pizza Perfect.
FOOTER: Statement of Claim Filed on behalf of the plaintiff Form 16 RR 22, 146 PI Juries & Associates Solicitors th 12 Floor, 344 Queens Street BRISBANE QLD 4000 Phone: (07) 3444 5555 Fax: (07) 3444 5556 Ref: RNG:SPL:DWN:69584

23

4.

On 25 July 2010 at or about 8:20 pm, the plaintiff: (a) was lawfully upon the Car Park. (b) attended at the Pizza Perfect Premises to collect an order of pizzas. (c) whilst leaving the Pizza Perfect Premises and returning to a vehicle that was parked in the Car Park, tripped on a concrete guard separating the footpath outside the Pizza Perfect Premises and the Car Park. (d) consequentially fell heavily to the ground and suffered personal injury, loss and damage.

5.

The plaintiffs personal injury, loss and damage was caused by the negligence of the first defendant and the second defendant.

Negligence of the First Defendant 6. The first defendant, as occupier of the Site and Car Park, owed an established duty of care to the plaintiff in respect of risks of physical injury arising from the conditions of the Site and Car Park. 7. The scope of the duty of care owed by the first defendant to the plaintiff was to ensure the plaintiff was not exposed to an unreasonable risk of physical injury. 8. The standard of care owed by the first defendant to the plaintiff was that of a reasonable and prudent business providing retail shopping facilities and parking. Paragraphs 5, 6 and 7 are points of law which are not necessary to plead but are permissible: r 149(2). However, if they are pleaded, then you must ensure that you plead the material facts in support of these points. See also [9.2.7] [9.2.9] in Stephen Colbran et al Civil Procedure 4th ed. 9. The first defendant, in contravention of section 9 of the Civil Liability Act 2003 (Qld), breached the standard of care owed to the plaintiff by: (a) failing to take any or any adequate precautions for the safety of the plaintiff whilst she was lawfully on the premises; (b) exposing the plaintiff to a risk of injury of which it knew or ought to have known, namely the risk of a trip and fall injury on the concrete guard; (c) failing to paint or otherwise mark the concrete buffer with reflective paint or other like material adequately or at all so as to warn or adequately warn persons such as the plaintiff travelling between the premises and the adjacent car park of the existence of the concrete guards; (d) failing to conduct any inspection and/or maintenance of the concrete guards adequately or at all so as to ensure that any existing paint or other material present on the concrete guard was sufficient so as to highlight the existence of the concrete guard to persons such as the plaintiff; (e) failing to illuminate the adjacent car park area adequately so as to ensure that the concrete guards were readily visible;

24

(f)

failing to warn the plaintiff adequately or at all of the existence of the concrete guards; and

(g) failing to warn the plaintiff adequately or at all of the risk of injury from tripping and/or falling over the concrete guard. Negligence of the Second Defendant 10. The second defendant, as occupier of the Pizza Perfect Premises, owed an established duty of care to the plaintiff in respect of risks of physical injury arising from the conditions of the Pizza Perfect Premises and Car Park. 11. The scope of the duty of care owed by the second defendant to the plaintiff was to ensure the plaintiff was not exposed to an unreasonable risk of physical injury. 12. The standard of care owed by the second defendant to the plaintiff was that of a reasonable and prudent business carrying on the supply of fast food and parking to the public. Paragraphs 9, 10 and 11 are points of law which are not necessary to plead but are permissible: r 149(2). However, if they are pleaded, then you must ensure that you plead the material facts in support of these points. See also [9.2.7] [9.2.9] in Stephen Colbran et al Civil Procedure 4th ed. 13. The second defendant, in contravention of section 9 of the Civil Liability Act 2003 (Qld), breached the standard of care owed to the plaintiff by: (a) failing to take any or any adequate precautions for the safety of the plaintiff whilst she was lawfully on the premises; (b) exposing the plaintiff to a risk of injury of which it knew or ought to have known, namely the risk of a trip and fall injury on the concrete guard; (c) failing to paint or otherwise mark the concrete buffer with reflective paint or other like material adequately or at all so as to warn or adequately warn persons such as the plaintiff travelling between the premises and the adjacent car park of the existence of the concrete guards; (d) failing to conduct any inspection and/or maintenance of the concrete guards adequately or at all so as to ensure that any existing paint or other material present on the concrete guard was sufficient so as to highlight the existence of the concrete guard tom persons such as the plaintiff; (e) failing to illuminate the adjacent car park area adequately so as to ensure that the concrete guards were readily visible; (f) failing to warn the plaintiff adequately or at all of the existence of the concrete guards; and

(g) failing to warn the plaintiff adequately or at all of the risk of injury from tripping and/or falling over the concrete guard. 14. In consequence of the negligence of the first and second defendants, the plaintiff suffered personal injuries including the following: (a) fracture to the neck of the right radius;

25

(b) swollen elbow joint; (c) grazes to body and neck; (d) considerable and continuing pain; (e) permanent partial disability of between 9 and 11 per cent loss of efficient function of the right upper limb; and (f) psychiatric illness.

General Damages 15. In consequence of the negligence of the first and second defendants, the plaintiff suffered loss and damages including the following: (a) extensive medical treatment, including physiotherapy and rehabilitation; (b) schooling interruption; (c) permanent partial disability of between 9 and 11 per cent loss of efficient function of the right upper limb; (d) pain and suffering; and (e) loss of amenities. $155,000.00 [etc. Providing full particulars of claims for each head of damage.]

The plaintiff claims the following relief: $......................damages together with interest under s 58 of the Civil Proceedings Act 2011 and costs. Signed: ............................ Description: Solicitors for the plaintiff NOTICE AS TO DEFENCE Your defence must be attached to your notice of intention to defend. Notes for LWB431 Civil Procedure Students Please note the provisions of the Civil Liability Act 2003 (CLA). Section 61 CLA - General damages are now calculated in accordance with the ISV scale contained in the Civil Liability Regulation 2003. Section 62 CLA shows how general damages are to be calculated. See reg. 6A and Schedule 6A of the Civil Liability Regulation 2003. Section 60(1) CLA - there can be no interest awarded on general damages.

26

Please also note the limitations on awards for future economic loss contained in s 54 CLA. Statutory maximum of 3 times average weekly earnings. Also note s 59 damages for gratuitous services limitation no damages allowed unless services provided for at least 6 hours per week and at least 6 months.

500.1 Negligence upon the highway

SUPREME COURT OF QUEENSLAND REGISTRY: NUMBER: Plaintiff: AND First Defendant: AND Second Defendant: GENEROUS INSURANCE LTD. STATEMENT OF CLAIM 1. The plaintiff was at all material times the driver of a [description of vehicle] registered number [registered number]. 2. The first defendant was at all material times the owner and driver of a [description of vehicle] registered number [registered number]. 3. The [vehicle of the defendant] was at all material times the subject of a contract of insurance pursuant to the provisions of the Motor Accidents Insurance Act 1994, the licensed insurer of that vehicle being the second defendant, who is a proper defendant to these proceedings pursuant to s 52 of the Motor Accidents Insurance Act 1994. 4. The first defendant was at all material times an insured person, in relation to the [name of vehicle], as defined in the said Act. 5. At about [time] am on [day] the [date]day of [month] [year], the plaintiff was driving the said [plaintiff's vehicle] in a generally northerly direction along the [give details of location, for example: at a point approximately 1 kilometre south of King John Creek in the said state.] 6. At that time on that date, the defendant was driving the said [defendant's vehicle] in a southerly direction along the said highway. 7. At that time on that date, at a point [give details of the site of the collision, for example: approximately 1 kilometre south of King John Creek] the [defendant's JOHN JONES JOHN SMITH

27

vehicle] collided with the [plaintiff's vehicle]. 8. That collision was caused by the negligence of the defendant: PARTICULARS

(i) failing to keep any or any proper lookout; (ii) driving at a speed excessive in the circumstances; (iii) driving whilst so intoxicated by alcohol that he was unable properly to control the [vehicle] (iv) driving on the wrong side of the road; (v) driving the [vehicle] upon the right side of the centre line of the carriageway when that vehicle was approaching the crest of a grade, where the defendant's view was obstructed, so as to create a hazard, in breach of regulation 25 of the Traffic Regulation 1962. 9. The plaintiff suffered a compound fracture to the L1 vertebrae and whiplash injury to the neck. 10. As a result of the negligence of the first defendant the plaintiff claims damages for personal injuries against the first and second defendants, particulars of which are as follows: General Damages PARTICULARS

The plaintiff suffered a compound fracture to the L1 vertebrae and whiplash injury to the neck. Since the accident he has suffered from regular back pain and has been prevented from performing any heavy work. He is obliged to take medication for back pain. The plaintiff has been assessed by Dr Curtis as having a 2.5% impairment to the whole person resulting from his neck injury, attributable to the accident, and having regard to the lumbar spine an impairment of 5% attributable to the effects of the fracture. The plaintiff has experienced a loss of amenities. $50,000.00

Interest on General Damages PARTICULARS

The plaintiff claims interest at 2% on $20,000 for 2.8 years. $1,120.00

28

Past Economic Loss PARTICULARS

Prior to the accident the plaintiff was working 23 days per month as a travelling salesman and has been reduced to working 9 days per month. He is obliged to travel from Gympie to Central Queensland and North Queensland. As the strain of doing so has affected his ability in his work, with the reduced number of days per month he is able to work, and having regard to the fact that he is paid higher commission for North Queensland than for Central Queensland, he has suffered substantial past economic loss. $50,000.00

Interest on Past Economic Loss PARTICULARS

The plaintiff claims interest at 5% for 2.8 years on $50,000. $7,000.00

Future Economic Loss PARTICULARS

The plaintiff now works for only 61% of the time he worked before the accident (having regard to him now working 9 days per month as compared to the 23 per month he formerly worked). The plaintiff is now 52 years of age and would ordinarily be entitled to the old age pension in 13 years time. If the present loss were calculated as applying to all of that time then the application of the 5% discount tables would produce a figure of $264,554 for future economic loss. However, Dr Curtis, orthopaedic surgeon says that his present lumbar condition would have been reached in 10 years from the accident. On that analysis Dr Curtis would permit 7.5 years economic loss from the present. On the 5% tables this would amount to $169,957. Discounting this sum by 15% for contingencies gives a figure of: $144,478.75

29

Gratuitous Domestic Assistance PARTICULARS

For the first two weeks following the accident the plaintiff's wife spent two hours per day assisting him in and out of bed, with washing, dressing and massaging his back. By the third week she was assisting him for about one hour per day. At home she massages his neck and back every night for half an hour and in the garden performs mowing and weeding. He will in the future require assistance with gardening and other domestic tasks. The claim for the past and the future is: 2 hours per day for 2 weeks (28 hours): $280.00 1 hour per day for 7 days: $70.00 Future gardening etc: $5,000.00 Total: TOTAL: $5,350.00 $257,948.75

11. The plaintiff has given notices in compliance with s 37 of the Motor Accident Insurance Act 1994. The plaintiff claims the following relief: $257,948.75 damages together with interest pursuant to s 47 of the Supreme Court Act 1995 and costs. Signed: ........ Description: This pleading was settled by Mr A B Smith of Counsel.

500.5 Statement of claim master servant action

SUPREME COURT OF QUEENSLAND REGISTRY: NUMBER:

Plaintiff: JOHN SMITH AND First Defendant:

30

JOHN JONES AND Second Defendant: GENEROUS INSURANCE LTD. STATEMENT OF CLAIM

1. The plaintiff was born on the [day] day of [month] [year]. She was at the material time a [bar attendant (casual)] at the [name of employer] Club and a partner in the partnership of [name of partnership], which partnership conducted a [hairdressing salon]. 2. The defendant was at all material times a company incorporated according to law. 3. The defendant was at all material times the employer of the plaintiff. 4. It was a term of a contract of employment between the plaintiff and the defendant and/or it was the duty of the defendant to take all reasonable precautions for the safety of the plaintiff while she was carrying out her assigned work, not to expose her to any risk of damage or injury of which it knew or ought to have known, to provide and maintain safe and adequate plant and equipment, to take reasonable care that the place at which the plaintiff carried out her assigned work was safe, and to provide and maintain a safe and proper system of work. 5. The premises of the said club were at all material times a workplace within the meaning of s 9 of the Workplace Health and Safety Act 1995. 6. Pursuant to s 28 of the Workplace Health and Safety Act 1995 the defendant had an obligation to ensure the workplace health and safety of the plaintiff. 7. Pursuant to s 30 of the Workplace Health and Safety Act 1995 the defendant had obligations: (a) to ensure the plaintiffs risk of injury from the workplace was minimised; (b) to ensure the plaintiffs risk of injury from any plant or substance provided in the workplace was minimised.

8. On the [day] day of [month] [year], the plaintiff was in the course of her employment, carrying out her duties as a [bar attendant (casual)] at the said club. 9. Whilst she was so engaged, the plaintiff attempted to lift a carton of stubbies in the coldroom in the said club, and to carry it from the coldroom to the bar. 10. In attempting to do so, the plaintiff slipped and fell upon the floor of the coldroom, injuring her right knee. 11. The plaintiff's fall was caused by negligence on the part of the said club in the discharge of its said duty to the plaintiff, and also by a breach of a statutory duty on the part of the said club:

31

A. PARTICULARS OF NEGLIGENCE (i) Failing to take any or any adequate precautions for the safety of the plaintiff whilst she was engaged in carrying out her assigned work; (ii) exposing the plaintiff to a risk of damage or injury of which the club knew or ought to have known; (iii) failing to provide and maintain for the plaintiff's use safe and adequate fittings and equipment; (iv) failing to ensure that the place at which the plaintiff carried out her assigned work was safe; (v) failing to provide and maintain a safe and proper system of work; (vi) failing to conduct any or any proper or adequate or timely inspection of the plaintiff's workplace when a reasonably prudent person would have done so; (vii) failing to give to the plaintiff any or any proper or adequate or timely warning as to the dangers associated with her employment in the said place of work when a reasonably prudent employer would have done so; (viii) failing, when it knew or ought to have known that the floor of the coldroom became wet from time to time, to provide a safe and adequate floor covering therefore, namely a floor covering which would not become unduly slippery when wet; (ix) causing, permitting or allowing moisture to accumulate upon the floor of the said coldroom when it knew or ought to have known that this would or might make the floor unduly slippery, and that the plaintiff was likely to be injured thereby; (x) requiring the plaintiff to lift and carry from the coldroom cartons of stubbies, when it knew or ought to have known that the carrying of such a load by a female, upon the floor of the coldroom as it then existed, was likely to create a risk of slipping upon the floor, particularly if the floor was wet; (xi) failing, in breach of sections 28 and 30 of the Workplace Health and Safety Act 1995, to ensure that the surface of the coldroom had an even, unbroken and slip-resistant surface; (xii) failing to carry out any or any proper investigation or examination of the floor of the coldroom, in order to determine whether it was safe, under the circumstances of the work carried out in the coldroom, for employees to lift cartons of stubbies and carry them; (xiii) failing, in breach of sections 28 and 30 of the Workplace Health and Safety Act 1995, to maintain the floor of the coldroom in a clean and tidy condition, and to keep it free of accumulations or deposits of material, namely moisture, likely to cause injury to or be injurious to the health of the plaintiff.

B. PARTICULARS OF BREACH OF STATUTORY DUTY

(i) Failing, in breach of sections 28 and 30 of the Workplace Health and Safety Act 1995, to ensure that the surface of the coldroom was an even, unbroken and slip resistant surface; (ii) failing, in breach of sections 28 and 30 of the Workplace Health and Safety Act 1995, to maintain the floor of the coldroom in a clean and tidy condition, and to keep it free of accumulations or deposits of material, namely

32

moisture, likely to cause injury to or be injurious to the health of the plaintiff. 12. As a result of the plaintiff's fall she suffered a fracture of the right patella and damage to the medial and lateral ligaments. 13. As a result of the negligence of the defendant, the plaintiff claims damages for personal injuries against the defendant, particulars of which are as follows: 14. The plaintiff has given notices in compliance with s 37 of the Motor Accident Insurance Act 1994. The plaintiff claims the following relief: $257,948.75 damages together with interest pursuant to s 47 of the Supreme Court Act 1995 and costs. Signed: ........ Description: This pleading was settled by Mr A B Smith of Counsel.

500.10 Statement of claim Professional (medical) negligence

REGISTRY: NUMBER: Plaintiff: MARY SMITH

Defendant: JOHN BROWN Second Defendant: BILL BLACK STATEMENT OF CLAIM

1. The first defendant is an [orthopaedic specialist] carrying on practice at [address] in the state of Queensland. 2. The second defendant is a [radiologist] carrying on practice at [address] in the state of Queensland. 3. On the [day] day of [month] [year], the plaintiff consulted the first defendant, complaining of back pain. 4. The first defendant examined the plaintiff, and on the [day] day of [month] [year] referred her to the second defendant. 5. The second defendant carried out X-rays of the plaintiff's back on the [day] day of [month] [year]. 6. The second defendant carried out X-rays, and a report thereon, to the first defendant.

33

7. The first defendant diagnosed the plaintiff as suffering from a muscle sprain and assured her that it would resolve with physiotherapy. 8. In reliance upon the said advice, the plaintiff underwent physiotherapy. 9. The plaintiff's back pain was not cured by physiotherapy. 10. The plaintiff in fact, at the time of her consultation with and examination by the first defendant, and at the time of the X-ray examination and report by the second defendant, and at the time of her further consultation with the first defendant, suffered from a chondrosarcoma. 11. Both the first defendant and second defendant failed to detect or diagnose the chondrosarcoma. 12. The chondrosarcoma was not in fact detected for some three years, by which time it had grown appreciably from its size when the plaintiff consulted the first defendant and second defendant. 13. The plaintiff underwent operative treatment in 1991 for the removal of the chondrosarcoma, and that operation required the removal of a large amount of tissue from the area immediately adjacent to the plaintiff's lumbar spine, and the removal of bone from the lumbar spine itself. 14. By reason of the removal of the chondrosarcoma, and a sufficiently wide margin of unaffected tissue and bone around it, the plaintiff's spinal canal was penetrated, and her spinal cord damaged, leaving her a paraplegic. 15. The plaintiff's paralysis was caused by the negligence of the first defendant and second defendant, or one or other of them. PARTICULARS

(i) Failing to detect the presence of the chondrosarcoma, when the Xray examination showed a notable deformity or abnormality. (ii) failing to arrange either a CT scan, or an MRI of the plaintiff's spine, when the X-ray which had been taken showed a mass; (iii) failing to arrange for further medical examination of the plaintiff, and for surgery upon her, when a reasonably prudent medical practitioner would have done so immediately upon seeing the X-rays taken by the second defendant; (iv) failing, if unable to identify the nature of the mass visible upon the X-ray taken by the second defendant, to arrange for a CT scan, or MRI, in order to identify the mass properly, and to ascertain its exact dimensions; (v) failing to warn the plaintiff, upon the return of the x-ray, that it was advisable that further investigations be carried out, having regard to the degree of risk; (vi) failing to obtain the informed consent of the plaintiff to the surgery referred to in paragraph 13 above, by not warning them of the risk of spinal cord damage associated with surgery, and not informing them of the option of more conservative treatment. (insert particularised claim for damages in the manner of paragraph 10, of first negligence precedent above)

34

500.15 Statement of claim negligence causing economic loss

REGISTRY: NUMBER: Plaintiff: JOHN SMITH

Defendant: JOHN BROWN STATEMENT OF CLAIM 1. At all material times: (a) the plaintiff was the owner of an oil terminal on the northern shore of Moreton Bay. (b) Australian Oil Refining Pty Ltd (AOR) was the owner of a pipeline laid in the bed of Moreton Bay. (c) AOR was the owner of an oil refinery at [address], on the southern shore of Moreton Bay. (d) the pipeline connected the oil refinery to the oil terminal. (e) the pipeline was used to carry products of the refinery to the terminal. (f) by the agreement between the plaintiff and AOR: (i) the plaintiff supplied crude oil to the refinery for processing; (ii) the refined product was delivered to the Plaintiff either into a vessel at the AOR Wharf or through the pipeline to the plaintiff's terminal. (iii) the refined product carried through the pipeline was the property of the plaintiff; and (iv) the risk of damage or loss rested with AOR. 2. On the night of 2526 October 1999, the defendant's vessel was being used to dredge a deep water channel in Moreton Bay. 3. The defendant knew: (a) of the situation of the pipeline; (b) that the pipeline carried oil or petroleum products; (c) that it linked the AOR refinery on the southern shore of Moreton Bay with the plaintiff's terminal on the northern shore of Moreton Bay.

4. The defendant knew or ought to have known: (a) that the pipeline carried refined petroleum products from the refinery to the terminal; and (b) that the oil was used by the plaintiff in its business operations as an oil company.

5. The defendant could reasonably foresee that a severance and/or damage to the

35

pipeline would result in: (a) the loss of oil from the pipeline; (b) the necessity to provide alternative transport and delivery arrangements; (c) the necessity to provide alternative delivery arrangements.

6. In the premises the defendant owed a duty of care to the plaintiff. 7. On the night of 2526 October 1999 oil belonging to the plaintiff was flowing through the pipeline. 8. At the time and aforesaid, the defendant so negligently navigated the dredge that it severed and/or damaged the pipeline. 9. The severing and/or damage to the pipeline as aforesaid caused economic loss to the plaintiff. PARTICULARS

(a) loss of oil from the pipeline $200,000; (b) additional costs in transporting by means other than the pipeline products from the refinery to the terminal $100,000; (c) costs of incidental capital works for receiving those oil products $100,000. 10. The plaintiff claims $400,000 damages for negligence from the defendant together with costs and interest pursuant to s 47 of the Supreme Court Act 1995.

36

1.4.1.5 Need to show:

Things to Allege in Breach of Contract

That a contract existed; o Offer o Acceptance o Consideration o Intention to create legal relations o Certainty o Capacity o Was the contract partly in writing and partly oral? That a term was breached; o If an express term, which clause o If an implied term: On what basis can it be implied; and Business efficacy? Course of dealing? Incorporation by reference to another document? What is the actual wording of the implied term Damage suffered as a result of breach. The claim for relief should state the total of the plaintiffs claim together with interest pursuant to s 58 Civil Proceedings Act 2011 from 9 July 2012 to the date of judgment and costs. Common Law action for recovery of debt pursuant to Oral contract Sale of Goods Act 1896 s 50 maintain action against buyer for price of goods

Other documents to request: Other documents required question: Breach of contract Injury Purchase Orders Delivery Notes (signed?) including invoices for purchase of the materials, Letters of demand and dunning notices evidence of payment of the hardware store account, emails, text messages, call logs a copy of the handwritten quote and design, a copy of the terms and conditions, a copy of the advertisement(s) any photos or other evidence to show the state of [x] at the time of [y] any trade qualifications of person a copy of the work diary and notes made Facebook, website, and social media Medical evidence medical reports etc Photos of site Photos of injury Invoices and costs of treatments 37

CCTV footage of accident

38

Examples of Contract Precedents

CONTRACT PARTLY IN WRITING, PARTLY ORAL (ALSO USES SEPA)

DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: D 212 / 2010 PLAINTIFF: CONCRETO PTY LTD (ACN 000 111 222) AND DEFENDANT: NED NEWTON CLAIM The Plaintiff claims: $708,000.00 for money owing by the defendant to the plaintiff for goods sold & delivered by the plaintiff to the defendant at the defendants request on or about [date]; In the alternative, $708,000 pursuant to Section 50 of the Sale of Goods Act 1896 (Qld); Interest pursuant to Supreme Court of Queensland Act 1995 (Qld); and Costs. [ liquidated damages plus interest and costs arising out of a breach of contract for the sale of equipment made orally and/or in writing between the Plaintiff and the Defendant on or about January 2010.] The Plaintiff makes this claim in reliance on the facts alleged in the attached Statement of Claim. ISSUED WITH THE AUTHORITY OF THE DISTRICT COURT OF QUEENSLAND And filed in the Brisbane Registry on .day of .. 2010. Registrar To the Defendant: TAKE NOTICE that you are being sued by the Plaintiff in the Court. If you intend to dispute this claim or wish to raise any counterclaim against the Plaintiff, you must within 28 days of service upon you of this claim file a Notice of Intention to Defend in this registry. If you do not comply with this requirement judgement may be given against you for the relief claimed and costs without further notice to you. The Notice should be in Form 6 to the Uniform Civil Procedure Rules. You must serve a sealed copy of it at the Plaintiffs address for service shown in this claim as soon as possible. Law Courts Complex, George Street, Brisbane.

Address of Registry:

If you assert that this Court does not have jurisdiction in this matter or assert any irregularity you must file a Conditional Notice of Intention to Defend in Form 7 under Rule 144, and apply for an order under Rule 16 within 14 days of filing that Notice. If you object that these proceedings have not been commenced in the correct district of the Court, that objection must be included in your Notice of Intention to Defend.

[THIS GOES IN THE FOOTER:]

39

Claim Filed on behalf of the Plaintiff Form 2, r.22.

SW Smart & Smart Solicitors 10th Floor, 100 Queen St BRISBANE QLD 4000 Ph: (07) 5555 4444 Fax: (07) 5555 4445

PARTICULARS OF THE PLAINTIFF:

Name:

Concreto Pty Ltd (ACN000111222)

BRISBANE, QLD 4001

Residential or business address: 16 Smith Street, West End,

Solicitors name: And firm name: Solicitors business address: Address for service: DX (if any): Telephone: Fax: E-mail address (if any): Signed: Description: Dated: This claim is to be served on: of:

Bill Bloggs SW Smart & Smart 10th Floor, 100 Queen St, BRISBANE QLD c/- SW Smart & Smart 10th Floor, 100 Queen St, BRISBANE QLD (07) 5555 4444 (07) 5555 4445

Solicitors for the Plaintiff

Ned Newton 45 Bayside Street Bilsworth, New South Wales NOTICE TO DEFENDANT

Pursuant to section 16 of the Service and Execution of Process Act 1992 Please read this notice and the attached document very carefully If you have any trouble understanding them, you should get legal advice as soon as possible. Attached to this notice is a Claim (the attached process) issued out of the District Court of Queensland. Service of the attached process outside Queensland is authorised by the Service and Execution of Process Act 1992.

40

Your rights If a Court of a State or Territory other than Queensland is the appropriate court to determine the claim against you set out in the attached process, you may be able to have the proceeding stayed by applying to the District Court of Queensland. You must also file a Conditional Notice of Intention to Defend in Form 7 under Rule 144 of the Uniform Civil Procedure Rules 1999 (Qld), and apply for an order under Rule 16 of those Rules within 14 days of filing that Notice. If you think the proceeding should be stayed or transferred, you should get legal advice as soon as possible. Contesting this Claim If you want to contest this claim, you must take any action set out in the attached process as being necessary to contest the claim. If you want to contest this claim, you must also file a Notice of Intention to Defend in the District Court of Queensland. You have only 28 days after receiving the attached process to do so. The Notice of Intention to Defend must contain an address in Australia where documents can be left for you or sent to you. DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: D 212 / 2010 PLAINTIFF: CONCRETO PTY LTD (ACN 000 111 222) AND DEFENDANT: NED NEWTON

STATEMENT OF CLAIM

Filed in the Brisbane Registry on: This claim in this proceeding is made in reliance on the following facts

1. The Plaintiff in this proceeding is [name], at all material times: (a) carried on business as a concrete agitator supplier; (b) had its registered office at 16 Smith Street, West End, Brisbane in the State of
Queensland; (c) was a company duly incorporated; and (d) was capable of suing and being sued in its company name.

2. At all material times, the Defendant [name] carried on business (a) as a building and construction contractor; and (b) from premises situated at 45 Bayside Street, Bilsworth in the State of New South
Wales. 3. In or about January 2010, the Plaintiff through its director Sam Smith and the Defendant

41

made a contract which comprised an agreement: (a) partly in writing; and (b) partly oral.

Statement of Claim Filed on behalf of the Plaintiff Form 16, rr. 22, 146

SW Smart & Smart Solicitors 10th Floor, 100 Queen St BRISBANE QLD 4000 Ph: (07) 5555 4444 Fax: (07) 5555 4445

4. Insofar as the contract was in writing, it comprised: (a) A letter dated 6 January 2010 mailed from the Defendant to the Plaintiff on that same date; (b) A delivery docket dated 16 February 2010 handed by the Plaintiff by its employees or agents to the Defendant or its agents at 10 am on that same date; (c) An invoice (No. 8816) dated 18 March 2010 mailed by the Plaintiff to the Defendant on or about 16 March 2010; and (d) A copy of that same invoice (No. 8816 dated 18 March 2010) mailed by the Plaintiff to the Defendant on or about 16 April 2010. 5. Insofar as the contract was oral, it comprised a conversation on or about 28 January 2010 between the Plaintiff by its director Sam Smith and the Defendant that took place when they met at the Plaintiffs depot located at 222 Sherwood Road, Sherwood in the State of Queensland (the Plaintiffs Sherwood depot). 6. At this meeting on or about 28 January 2010 at the Plaintiffs Sherwood depot: (a) the Defendant inspected a number of 7 centimetre and 5 centimetre concrete agitators; and (b) the Plaintiff through its director Sam Smith orally agreed to sell to the Defendant a number of them as set out in paragraph 7 below; and (c) the Defendant orally agreed to buy from the Plaintiff a number of them as set out in paragraph 7 below. 7. It was an oral term of the contract that:

42

(a) The Plaintiff would by its employees or agents deliver to the Defendants business premises on or before 30 March 2010 (i) Four (4) 7 centimetre concrete agitators (comprising chassis, mixing bowls and driving motor) as inspected at a price of $28,000.00 each, totalling $112,000.00; and (ii) Four (4) 5 centimetre concrete agitators (comprising chassis, mixing bowls and driving motor)as inspected at a price of $24,000.00 each, totalling $96,000.00 [this equipment set out in sub-paragraphs (i) and (ii) collectively being termed the equipment]; and (b) The Defendant would pay for the equipment in full and final settlement of the account within thirty (30) days of the delivery date. 8. In accordance with the oral term referred to in paragraph 7 of this Statement of Claim, the Plaintiff on 16 February 2010: (a) by its employees or agents delivered the equipment to the Defendants business address at 45 Bayside Street, Bilsworth in New South Wales; and (b) by its director Sam Smith caused an invoice of the same date in respect of the equipment to be mailed to the Defendants registered office.

9. The Defendant has failed or refused to pay the amount owing on that invoice of $208,000.00. 10. Subsequently the Plaintiff by its director Sam Smith caused: (a) a reminder invoice dated 18 March 2010 to be mailed to the Defendants registered office on or about that date; and (b) a further reminder invoice dated 18 April 2010 to be mailed to the Defendants registered office on or about that date. 11. The Defendant has failed or refused to pay the amount of $208,000.00 shown on those reminder invoices. 12. On or about 1 June 2010, the Plaintiff served a letter of demand on the Defendant. 13. The Defendant has failed or refused, in breach of the contract set out in paragraphs 1 to 8 inclusive of this Statement of Claim, to pay the amount owing of $208,000.00. 14. As a result of the Defendants breach, the Plaintiff has suffered loss or damage i n the amount of $208,000.00 pursuant to the contract set out in paragraphs 1 to 8 inclusive of this Statement of Claim.

The Plaintiff claims the following relief:

43

The sum of $708,000.00 for liquidated damages arising out of the breach of contract, plus interest at the rate of ten per cent (10%) per annum pursuant to section 47 of the Supreme Court Act 1995 from 16 March 2010 to the date of judgment, and costs. Signed: Description: Solicitors for the Plaintiff

This pleading was settled by Mr R. Copp of Counsel NOTICE AS TO DEFENCE Your defence must be attached to your Notice of Intention to Defend. NOTICE UNDER RULE 150(3) The Plaintiff claims: $ 708,000.00 in damages; $ 7,080.00 for interest; and costs of issuing the claim and this statement of claim. This proceeding ends if you pay those amounts before the time for filing your Notice of Intention to Defend ends. If you are in default by not filing a Notice of Intention to Defend within the time allowed, the Plaintiff is entitled to claim additional costs of $270.00 being costs of entering judgment in default.

44

180.50 Contract terms implied by conduct

REGISTRY: NUMBER: Plaintiff: JOHN SMITH

Defendant: JOHN BROWN STATEMENT OF CLAIM

1. At all material times the plaintiff was the owner of a number of mobile cranes which it hired out for money. 2. At all material times the defendant carried on business as a building contractor. 3. In [month] [year] the defendant hired from the plaintiff an Hatachi ten tonne mobile crane and driver to be used by the defendant in the course of the defendant's business (the relevant hire). 4. The hiring referred to in the preceding paragraph came about when the defendant's manager telephoned the plaintiff's manager and requested the plaintiff to supply a crane and driver for the day. 5. In the conduct of its business, the plaintiff ordinarily accepted orders by telephone for the hire of its cranes and at the conclusion of the hire sent to the hirer a document entitled confirmation of order on which was set out the terms and conditions of the hire as well as a record of the duration of the hire and any accrued monetary charges. 6. On many prior occasions the defendant had hired cranes from the plaintiff. At the conclusion of each hire the plaintiff sent the defendant a confirmation of order document which contained the following term: "The customer [defendant] hereby indemnifies and agrees to keep indemnified the contractor [plaintiff] its servants and agents against all actions demands claims suits losses and or damages sustained by the contractor [plaintiff]as a result of any damage caused to any person or property as a result of the contractor [plaintiff] carrying out this contract whether caused by any act default or negligence of the contractor [plaintiff] its servants or agents." Particulars of the previous occasions are: (a) [details] (b) [details] (c) [details] 7. When hiring the crane on the occasion of the relevant hire, the defendant by its servant knew that the plaintiff hired its cranes on the terms and conditions set out on the said confirmation of order documents. 8. By continuing to conduct its business with the plaintiff on this basis, the defendant assented to the incorporation of the term set out in paragraph 6 above into the contract made between the plaintiff and the defendant on the occasion of the relevant hire. 9. In the performance of the relevant hire, the plaintiff's crane collided with a motor vehicle driven by one [name] causing [injured party's name]to be

45

injured and damage to the motor vehicle. [Injured party's name] has obtained judgment against the plaintiff in respect of the injuries to his person and the damage to his property. 10. The plaintiff claims an indemnity from the defendant in respect of its liability to [injured party's name] pursuant to the term set out in paragraph 6 above.

NOTE: The facts in this Precedent have been taken substantially from Eggleston v
Marley Engineers Pty Ltd (1979) 21 SASR 51 . Before a term contained in a printed form will be incorporated into a contract made between the author of the form and one of its customers, a customer must be aware of the term or at least of the fact that contractual terms appear on the form; the form must be a contractual document; and the previous course of dealing between the parties must have been such as to give rise to the conclusion that the customer contracted on the basis that the form and its terms would regulate their contractual relation: Eggleston v Marley Engineers Pty Ltd, above ; Hardwick Game Farm v Suffolk Agricultural Poultry Producers Assn [1969] 2 AC 31 at 90; [1968] 2 All ER 444 . Frequently the term which is sought to be incorporated into a contract will be a limitation or exemption clause which will be pleaded by way of defence rather than as the basis for a claim as in this example. The essentials of the pleading will remain the same. It will be necessary to allege the contractual nature of the document; the customer's knowledge of the terms and the fact that it contracted on the basis of the form.

DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: D 212 / 0 PLAINTIFF: CONCRETO PTY LTD (ACN 000 111 222) AND DEFENDANT: NED NEWTON STATEMENT OF CLAIM Filed in the Brisbane Registry on: This claim in this proceeding is made in reliance on the following facts

15. The plaintiff is a company duly incorporated and having its registered office at 16 Smith
Street, West End, Brisbane in the State of Queensland. 16. On 20 January 200, the Plaintiff [through its director Sam Smith] orally agreed to sell and the defendant orally agreed to buy from the plaintiff the following goods, as inspected by the defendant, at an agreed price of $28,000.00 each: 4 x 7 cubic metre capacity concrete agitators (comprising cassis, mixing bowls and driving motor) 17. On 20 January 200, the Plaintiff [through its director Sam Smith] orally agreed to sell and the defendant orally agreed to buy from the plaintiff the following goods, as inspected by

46

the defendant, at an agreed price of $24,000.00 each: 4 x 5 cubic metre capacity concrete agitators (comprising cassis, mixing bowls and driving motor)

18. It was a term of the agreement that the plaintiff would arrange delivery of the concrete
agitators (goods described in paras 2 and 3 of this statement of claim) to the defendant at 45 Bayside Street, Bilworth in New South Wales on or before 30 March 200 19. It was a term of the agreement that the buyer must pay each invoice issued for the sale of the goods within 30 days of the date of the invoice.

20. On 16 February 200... the plaintiff delivered the concrete agitators (goods described in
paragraphs 2 and 3 of this statement of claim) to the defendant, in compliance with its obligations under its agreement with the defendant, and invoiced the buyer on that date accordingly. 7. The defendant has failed to pay the total price, as invoiced, of $208,000.00

The plaintiff claims the following relief:

The sum of two hundred and eight thousand dollars ($208,000.00) together with interest on that amount under section 47 of the Supreme Court Act 1995 (Qld) at X.per centum per annum from 16 March 200.. to the date of judgment. Signed: Description: [This pleading was settled by ..of Counsel] NOTICE AS TO DEFENCE Your defence must be attached to your notice of intention to defend. NOTICE UNDER RULE 150(3) The Plaintiff claims: $................................. $............................... for interest; and $.............................for costs of issuing the claim and this statement of claim. This proceeding ends if you pay those amounts before the time for filing your notice of intention to defend ends. If you are in default by not filing a notice of intention to defend within the time allowed, the plaintiff is entitled to claim additional costs of $..........., costs of entering judgment in default.

47

1.4.1.6 Need to show:

Things to Allege in Nuisance

Title to sue o The P must have a legally recognised interest in the land, either as its owner or a tenant under a lease (Malone v Laskey) o A person merely on the land (even a member of a tenant's family etc) does not have title to sue unless they have a recognised interest in the land (Oldham v Lawson) o Although QCA has recently said that licensees may have title to sue (Deasy Investments v Monrest) o A trespasser in exclusive unlawful possession may have sufficient title to sue (South Australian Co v Port Adelaide) o It is not necessary for the nuisance to be recurring or continuing (Hargrave v Goldman) o But will be necessary for injunctive relief (Bamford v Turnley) Who can be sued? o A person in occupation of land from which a nuisance emanates can be sued for acts personally and also for acts by others authorised by the occupier (Laugher v Pointer) o An occupier will not be liable for a nuisance on his land without permission unless he knew or ought to have known of the nuisance and failed to abate it (L'Estrange v Brisbane Gas Co) o A landlord will be liable for acts of tenant if they authorised the nuisance (Tetley v Chitty) o A trespasser can be liable in private nuisance (Southport v Esso Petrol) o See page 429 TB. Protection of a legally recognised right o A right of use or enjoyment of the land, including the right to use the land for profit and the right to use the land from from excessive noise and fumes o In addition to quiet use and enjoyment, other interests give rise to title to sue: o Right to structural support of land (PLA s 179) o Right to structural support of buildings (PLA s 179) o Right of air (Cth v Victoria) o Riparian rights relating to people living adjacent to a waterway eg can sue for an increase in flooding brought about by neighbour (Grant Pastoral v Thorpe's) o Right of way (Hender v Gohl) o No right to a view (Vic Park Racing v Taylor) o No right to uninterrupted TV reception (Hunter v Canary Wharf) Damage o State the damage suffered. o If material damage: o Classify as nonfeasance or misfeasance Nonfeasance no action to remedy nuisance (eg land slipping, fire started by lightning, wild dogs attacking animals) (Leakey v National Trust) o Duty is to act reasonably (Leakey v National Trust) Misfeasance improper performance of a positive act (is not strict liability due to abolition of rule in Rylands v Fletcher) (Burnie) Substantial and Unreasonable Interference o If there is no material damage, the interference must be both unreasonable and substantial (Munro) o Loss of a single night's sleep could amount to a substantial interference (Munro) o Only interferences which are not trifling or small are actionable (St Helens Smelting) 48

Example Precedent for Nuisance

510.10 Claim for construction noise, vibrations (damages and injunction) (defendant incorporated)
DISTRICT COURT OF QUEENSLAND

and

dust

REGISTRY: BRISBANE NUMBER: D 212 / 0 PLAINTIFF: CONCRETO PTY LTD (ACN 000 111 222) AND DEFENDANT: NED NEWTON

STATEMENT OF CLAIM
This claim in this proceeding is made in reliance on the following facts: 1. The plaintiff is and has been at all material times the occupant of premises situated at [address] in which he carries on a coffee lounge business. 2. The defendant is and was at all material times a company duly incorporated. 3. The defendant is and has been at all material times a building contractor working on land situated at [address] being the land described as [real property description]. 4. That land adjoins the building in which the plaintiff's business is situated. 5. From on or about [date], the defendant has carried out or caused or permitted building work to be carried out on that land which work has included demolition of the existing structures thereon and excavation work. 6. As a consequence of such work, the defendant has wrongfully caused or permitted excessive noise, vibration and dust to be emitted from the defendant's land and to enter the plaintiff's premises. 7. As a result, the plaintiff's premises have been unpleasant to work in and have been unattractive to customers, the plaintiff has been caused serious annoyance and disturbance, and the plaintiff's business has very substantially fallen off, as a result of which he has suffered loss of profits.

PARTICULARS
[insert particulars of the actual monetary loss claimed to date]

8. The defendant has been requested by the plaintiff to abate the emission of such noise, vibration and dust, but the defendant has failed to do so or to agree to do so. 9. The defendant intends unless restrained to continue wrongfully to emit such noise, vibration and dust thereby causing further loss and damage to the

49

plaintiff. 10. The plaintiff's loss as aforesaid has resulted in an increase in his bank overdraft in respect of which he is paying interest at [percentage]% per annum. The plaintiff claims the following relief: 1. $[amount] damages for nuisance. 2. Interest under s 47 of the Supreme Court Act 1995 from [date] to judgment at [percentage]%per annum. 3. An injunction restraining the defendant from emitting by itself, its servants or agents or otherwise howsoever between 9 am and 5 pm noise, vibration and dust from its land so as to interfere with the operation of the plaintiff's said business. 4. Costs.

1.4.1.7 Need to show:

Things to Allege in Breach of s 52 TPA (Misleading/Deceptive Conduct)

That you are bringing your action under s 82 (damages), s 85 (injunctions) or s 87 (other orders) of the TPA for contravention of Part 5; Make out the elements of s 52: o Defendant is corporation; o In trade or commerce; o Engaged in conduct that was misleading/deceptive; Damage suffered by plaintiff as a result.

Case to cite: Sutton v AJ Thompson. Example Precedent for s 52 Actions

DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: D 212 / 0 PLAINTIFF: CONCRETO PTY LTD (ACN 000 111 222) AND DEFENDANT: NED NEWTON

STATEMENT OF CLAIM
This claim in this proceeding is made in reliance on the following facts: 1. The plaintiff in this proceeding is _________, and at all times

50

material to this action was: (a) a company duly incorporated according to law; (b) a corporation within the meaning of that term in the Trade Practices Act 1974 (Cth) (the Act); (c) carrying on business as a developer of residential units; (d) the vendor of a residential unit development known as [name of development] situated at [address] in the state of Queensland (the development). 2. The defendant is _____, and at all times material to this action was: (a) a company duly incorporated according to law; (b) a corporation within the meaning of that term in the Trade Practices Act 1974 (Cth) (the Act); (c) carrying on business as a developer of residential units; (d) the vendor of a residential unit development known as [name of development] situated at [address] in the state of Queensland (the development). 3. [Name] is, and at all times material to this action was: (a) the real estate agent engaged by the defendant to negotiate, off the plan, the sale of units in the development on behalf of the defendant; (b) duly authorised to act on behalf of and to bind the defendant in all material respects. 4. On [date], [name of agent]: (a) stated to the plaintiff that the defendant would construct a driveway connecting the development with a bitumen road to the north of the development; (b) handed to the plaintiff a draft agreement for the sale of the development which agreement contained a plan depicting a driveway leading from the eastern side of the development and connecting with a formed road to the north of the development. 5. By reason of the matters referred to in para 3 hereof, the defendant represented to the plaintiff that: (a) the land over which the driveway was to be constructed formed part of the common property of the development; (b) there was nothing unusual concerning access to the development. 6. Acting in reliance upon the representations referred to in para 4 hereof, and induced thereby, the plaintiff: (a) entered into an agreement in writing dated [date] (the agreement) whereby the defendant agreed to sell and the plaintiff agreed to purchase Lot 1 of the development, which was to be constructed by the defendant, for the sum of $[amount]; (b) paid a deposit in the sum of $[amount] to [name], as stakeholder, pursuant to the agreement. 7. The representations referred to in para 4 hereof were false in that: (a) the land over which the driveway was to be constructed was Crown land;

51

(b) the defendant was required to obtain a road licence in its favour in respect of the Crown land over which the driveway was to be built. 8. The defendant's conduct in making the representations referred to in para 4 hereof: (a) was in trade or commerce within the meaning of s 52 of the Trade Practices Act 1974 (Cth); (b) was misleading or deceptive in contravention of s 52 of the Act. 9. Further, the representations referred to in para 4 hereof: (a) were made in trade or commerce in connection with the sale or grant of an interest in land within the meaning of s 53A of the Act; (b) concerned the nature of the interest in the land and/or the characteristics of the land and/or the use to which the land was capable of being put or may lawfully be put; (c) were false or misleading in contravention of s 53A of the Act. 10. By letter from the plaintiff to the defendant dated 14 April 1993 the plaintiff rescinded the agreement. 11. By reason of the defendant's misleading or deceptive conduct in contravention of s 52 and/or 53A of the Act, the plaintiff has suffered loss or damage.

The plaintiff claims the following relief: (1) An order pursuant to s 87(1) and/or s 87(1A) of the Trade Practices Act 1974 (Cth) declaring that the whole of the agreement in writing dated [date] made between the plaintiff and the defendant is void ab initio, by reason of the contravention by the defendant of s 52 and/or s 53A of the said Act. (2) An order pursuant to s 87(1) and/or s 87(1A) of the said Act that the defendant pay to the plaintiff the deposit moneys of $[amount]. (3) Such further or other relief as this Honourable court thinks fit. (4) Costs.

DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: D 212 / 0 PLAINTIFF: CONCRETO PTY LTD (ACN 000 111 222) AND DEFENDANT: NED NEWTON

STATEMENT OF CLAIM
52

This claim in this proceeding is made in reliance on the following facts: 1. The defendant is, and at all times material to this action was: (a) a company duly incorporated according to law; (b) a corporation within the meaning of that term in the Trade Practices Act 1974 (Cth) (the Act). 2. [Name] is, and at all times material to this action was: (a) a director of the defendant; (b) duly authorised to act on behalf of and to bind the defendant in all material respects. 3. By an agreement in writing dated [date] (the agreement) made between the plaintiff and the defendant, the defendant agreed to sell and the plaintiff agreed to purchase all right, title and interest in a [gymnasium] business (the business) situated at [address] in the state of Queensland, for the price of $[amount]. 4. It was an express term and condition of the agreement: (a) (by cl 2) that the plaintiff would pay the sum of $[amount] as and by way of a deposit; (b) (by cl 4) that the plaintiff would pay the balance of the said purchase price, namely $[amount of balance] to the defendant at the date of possession; (c) (by cl 8) that on [date] (provided always that the plaintiff shall have paid all moneys payable under the terms of the agreement) the defendant would give the plaintiff full and complete delivery and possession of the property sold and the plaintiff would on the same day take delivery and enter into possession of the same. 5. On [date] [name of director] orally represented to the plaintiff that: (a) the average net weekly income of the business over the previous [period of time] was $[amount]; (b) [number of subscriptions] new membership subscriptions had been taken out in the last [number of months] month. 6. The representations referred to in para 5 hereof were made by the defendant: (a) in order to induce the plaintiff to enter the agreement and to pay the deposit and other moneys thereunder; (b) fraudulently and either well knowing they were false or recklessly not caring whether they were true or false.1. 7. The representations referred to in para 5 hereof were false in that: (a) over the [number of months] month period prior to [date] the business had received an average net weekly income of only $[amount]; (b) [number of subscriptions] new membership subscriptions had been taken in the [number of months] month period prior to [date ]. 8. The defendant's conduct in making the representations referred to in para 5 hereof was: (a) in trade or commerce within the meaning of s 52 of the Trade Practices Act 1974 (Cth);

53

(b) misleading or deceptive in contravention of s 52 of the Act. 9. Further, on or about [date] [name of director] orally represented to the plaintiff that the plaintiff could expect that at least [number] new members would join the gymnasium over the next [number of months] months. 10. The defendant's conduct in making the representation referred to in para 9 hereof was: (a) in trade or commerce within the meaning of s 52 of the Act; (b) misleading by virtue of s 51A of the Act;2. (c) in contravention of s 52 of the Act. 11. Acting in reliance on the representations referred to in paras 5 and 9 hereof, and induced thereby, the plaintiff: (a) entered into the agreement; (b) paid the deposit of $[amount of deposit] pursuant to cl 2 of the agreement; (c) paid the balance purchase price of $[amount of balance] and entered into possession on [date]. 12. By reason of the defendant's misleading and deceptive conduct in contravention of s 52 of the Act, the plaintiff has suffered loss or damage.

1.4.1.8

Step Three: Do Not Anticipate the Defence

Just make sure all the necessary elements of the cause of action are pleaded. The plaintiff should not try to anticipate the defendants defence. Just allege material facts along with such particulars necessary to prevent surprising the other side. Generally, if need to raise further facts, wait for defendant to plead it then deal with it in the Reply. EXCEPTION: estoppels (ie the defendant is estopped from raising a denial of xyz) EXCEPTION: allegation that defendant has waived performance of condition precedent (Spicers and Detmold v Australian Automatical Cigarette Paper).

1.4.1.9

Step Four: If Liquidated Sum, Plead the Details

Every type of damage claimed must be specifically pleaded: r150(1)(b) The rules require that the pleading state the nature and amount of damages claimed: r 155 54

o The QCA has indicated that the details in relation to damages as required by rr 150(1)(b) and 155 should appear as allegations in the body of the SOC and not only in the prayer for relief. In appropriate circs, however, the claims for relief in the prayer for relief may simply refer back to the amounts or matters pleaded in the relevant paragraphs of the SOC: Meredith v Palmcam Pty Ltd for a debt or liquidated demand: r150(3) o Liquidated debts = A specific sum or capable of being calculated by reference to a scale or formula: Spain v Union Steamship Company of New Zealand (1923) 23 CLR 138 Rule 155 should be read with r 150(1)(b) which requires a pl to specifically plead every type of damage claimed including special and exemplary dmgs.

155 Damages (1) If damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed. (2) Without limiting rule 150(1)(b),44 a party claiming general damages must include the following particulars in the partys pleading (a) the nature of the loss or damage suffered; (b) the exact circumstances in which the loss or damage was suffered; (c) the basis on which the amount claimed has been worked out or estimated. (3) If practicable, the party must also plead each type of general damages and state the nature of the damages claimed for each type. (4) In addition, a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise.

R158 relates to how to plead particulars of damages

158 Particulars of damages (1) If a party claims damages including money the party has paid or is liable to pay, the pleading must contain particulars of the payment or liability. (2) If a party claims exemplary or aggravated damages, the partys pleading must contain particulars of all matters relied on in support of the claim.

But note: Rule 156 the court remains entitled to grant general relief, or to grant relief other than that specified in the pleadings, irrespective of whether general or other relief is expressly claimed in the pleadings.

55

Meredith v Palmcam Pty Ltd Compliance with the rule to specifically plead damages including special damages is mandatory. It was not satisfied by pleading in the statement of claim that full particulars of the plaintiffs special damages will be provided prior to trial of this action and that full particulars of the plaintiffs damages claim will be provided in her statement of loss and damage pursuant to Rules 155 and 547(3). Statement of particulars necessary for compliance should appear as allegation in the body of the statement of claim and not only in the prayer for relief.

r 150(3): If the plaintiffs claim is for a debt or liquidated demand only (with or without a claim for interest), the plaintiff must state the following details in the statement of claim (a) (b) (c) (d) particulars of the debt or liquidated demand; if interest is claimedparticulars as required by r 159; the amount claimed for the costs of issuing the claim and attached statement of claim; a statement that the proceeding ends if the defendant pays the debt or liquidated demand and interest and costs claimed before the time for filing notice of intention to defend ends;

a statement of the additional costs of obtaining judgment in default of notice of intention to defend 1.4.1.10 Step Five: If Plaintiff Wants Jury, Request It

Unless trial by jury is excluded by an Act, a plaintiff in the statement of claim or a defendant in the defence may elect a trial by jury: r.472. Quinlan v Rothwell [2008] QSC 143 - can only abandon pursuant to r.474. This does not apply to a pleading in the Federal Court, where trial is by a judge without a jury unless the Court directs trial by jury: Federal Court of Australia Act 1976 (Cth), ss 39 and 40; Bankruptcy Act (Cth), s 30(3). Note - there are now very few occasions when a civil trial in Queensland would involve a jury.

1.5

The Defence (How to Draft)

The defendant uses the Defence. For a straight Defence, use Form 17. If defendant wants to also make a claim against the plaintiff, use a Defence and Counterclaim in Form 18. A Notice of Intention to Defend (other than a Conditional Notice of Intention to Defend: r 144) must have the defence attached to it: r 139. It must be filed within 28 days of the service of the statement of claim: r 137. 56

FORM 17
SUPREME/DISTRICT/MAGISTRATES COURT OF QUEENSLAND REGISTRY: NUMBER:

Plaintiff: AND

(Insert Name)

[First] Defendant: (Insert Name) AND [Second Defendant:] (Insert Name) DEFENCE OF THE [FIRST] DEFENDANT The (first) defendant relies on the following facts in defence of the claim: 1. [The defendant admits the allegations in paragraphs ...................... of the statement of claim.] [The (first) defendant does not admit the allegation in paragraph ... of the statement of claim. The (first) defendant has made reasonable inquiries and remains uncertain of the truth or otherwise of the allegation and is unable to admit it because.. (give explanation) [The (first) defendant believes the allegation cannot be admitted because.. (give explanation).] [The (first) defendant denies the allegation in paragraph ... of the statement of claim because (give explanation)] (set out as briefly as the nature of the case permits the material facts on which the defendant relies in accordance with the requirements of Chapter 6 of the Uniform Civil Procedure Rules 1999) etc. 57

2.

3.

4.

5.

[The (first) defendant elects trial by jury] (if the defendant elects under Rule 472 and no Act excludes trial by jury).

Signed: Description:

(defendant or solicitor to sign) (of signatory eg. solicitor)

[This pleading was settled by (name) of Counsel]. NOTICE AS TO REPLY You have fourteen days within which to file and serve a reply to this defence. If you do not do so, you may be prevented from adducing evidence in relation to allegations of fact made in this defence.

58

FORM 18

SUPREME/DISTRICT/MAGISTRATES COURT OF QUEENSLAND REGISTRY: (As per Claim) NUMBER: (As per Claim)

Plaintiff:

(As per Claim) AND

[First] Defendant

(As per Claim) AND

[Second Defendant]

(As per Claim)

(Title - Add to the title the name(s) of every defendant added by counterclaim) Filed in the (place) registry on (date). DEFENCE OF THE [FIRST] DEFENDANT The [first] defendant relies on the following facts in defence of the claim: 1. [The defendant admits the allegations in paragraphs ...................... of the statement of claim.] [The [first] defendant does not admit the allegation in paragraph ... of the statement of claim. The [first] defendant has made reasonable inquiries and remains uncertain of the truth or otherwise of the allegation and is unable to admit it because........ (give explanation). [The [first] defendant believes the allegation cannot be admitted because. (give explanation).] [The [first] defendant denies the allegation in paragraph ... of the statement of claim because 59

2.

3.

... (give explanation).] 2. (set out as briefly as the nature of the case permits the material facts on which the defendant relies in accordance with the requirements of Chapter 6 of the Uniform Civil Procedure Rules)

COUNTERCLAIM
This counterclaim is made by the [First] Defendant against: 1. 2. 3. 4. The [First] Plaintiff; The [Third] Plaintiff; The [Second] Defendant; (Name any other relevant person not already a party in the proceeding) called [First] Defendant added by counterclaim; (As per 4)

5.

This counterclaim is made in reliance upon the following facts: (Set out as briefly as the nature of the case permits a statement of all the material facts relied on in accordance with the Uniform Civil Procedure Rules, Chapter 6.) The (First) Defendant claims the following relief: (Set out in full all relief claimed by the counterclaim in the same way as is required for a claim). [The [First] Defendant elects trial by jury of the counterclaim] (if the defendant elects under Rule 472 and no Act excludes trial by jury).

Signed: Description:

([first] defendant or solicitor) (of signatory) 60

[This pleading was settled by (name) of Counsel.] NOTICE AS TO REPLY AND ANSWER To the Plaintiff(s): You have 14 days within which to file and serve an answer to this counterclaim. If you do not do so, Rule 166 provides allegations of fact in the counterclaim are taken to be admitted by you unless denied or stated to be not admitted by you in a pleading. To the [Second] Defendant: You have 14 days within which to file and serve an answer to this counterclaim. If you do not do so, Rule 166 provides allegations of fact in the counterclaim are taken to be admitted by you unless denied or stated to be not admitted by you in a pleading. [To each Defendant added by Counterclaim: TAKE NOTICE that you are being sued by the [First] Defendant in the Court. If you intend to dispute this claim or wish to raise any counterclaim, you must within 28 days of the service upon you of this counterclaim file a NOTICE OF INTENTION TO DEFEND in this Registry. If you do not comply with this requirement, judgment may be given against you for the relief claimed and costs without further notice to you. The Notice should be in Form 6 to the Uniform Civil Procedure Rules. You must serve a sealed copy of it at the [First] Defendants address for service shown in this counterclaim as soon as possible.]

Address of Registry:

Particulars of the [First] Defendant: (Here give the particulars required of a Plaintiff and Plaintiffs Solicitor in Form 2. Include name and address of each party to be served with the counterclaim.)

1.5.1.1

General Information About Defences

The defendant must specifically plead the following matters (r 150(4)(a)-(d)): Anything the party alleges makes the plaintiffs claim not maintainable; or Anything that shows a transaction is void or voidable; or If not specifically pleaded might take the opposite parties by surprise; or Raises a question of fact not arising out of a previous pleading.

The Defence must answer every allegation of fact in the Statement of Claim, or they will be deemed to have admitted the fact (r 166).

61

To answer each allegation of fact, you can plead an admission, denial or non-admission (r 165(1)). 1.5.1.2 Step One: Plead the Admissions

If you want to admit something, it is convenient to do it in the first paragraph, by saying something like: 1. The defendant admits the allegations contained in paragraphs 1, 2, 3, 5, 10, 22 66, and 99 of the Statement of Claim.

Do not object to everything just for the sake of it (for example, incorporation. If youre incorporated, just admit it.)

1.5.1.3

Step Two: Plead the Denials

You can deny an allegation of fact if you believe it to be untrue (r 165(1)). Any denial must be accompanied by a direct explanation for that belief (r 166(4)). o Eg: The defendant denies the allegation in paragraph 6 of the statement of claim because the defendant has a direct recollection of the events of that meeting, namely [recollection]. o Effect of failure to provide explanation: the party is taken to have admitted the allegation (r 166(5)). EXCEPTION: Court will not interpret the rules so as to operate to convert a positive denial into a deemed admission in circumstances where further particulars are sought in a denial (Australian Agricultural Services v G&D Elliott). A denial contained in the same paragraph as other denials is sufficient if it is a specific denial of the allegation in response to which it is pleaded (according to Susan Hedge?) Caution when deny a negative proposition in the Statement of Claim o Negative proposition = X had no authority or X did not say ABC o If deny this, arent you impliedly saying its true? This might not be what you intend. o Therefore, the Def should make the intention clear and provide adequate particulars. In any case such a bare pleading would not meet the extensive requirements in relation to the pleading of denials & non-admissions in r 166. There may be a costs sanction if you deny a fact that ought to have been admitted. Court may award costs against the party incorrectly denying (r 167).

NOTE: If you dont admit and dont deny, you will be deemed to have made a nonadmission (r 166(1)(a)) (see below).

62

Johnson v Sewell Pl. was employee of the dept of Harbours and Marines and he sued for negligence in respect of injuries which he sustained while working on a ship in dock. In part of his statement of claim, he alleged that he was leaving the ship by a particular ladder that was the only available means of egress from the said ship provided by the def for the Pl. The Def. denied that allegation. The Judge noted that the denial was actually pregnant with a positive allegation, that there were other means of egress available and said that the details of the other means should be particularised in the pleading.

Pinson v Lloyds & National Provincial Foreign Bank Ltd Defs acted as agents & brokers for purchase and sale of securities on behalf of the plaintiff. She brought proceedings against the bank claiming damages for breach of contract. She alleged in the SOC that in respect of certain transactions the bank had not acted in accordance with her instructions and she had suffered damage as a result. In the Defence the Defs denied that they did not have authorisation make the transactions. The Pl brought an application to strike out the defence or for particulars of the authority they had from the plaintiff to make the transactions. On appeal the Defs admitted that they intended to set up an affirmative case of authority Where the allegation in the SOC is negative the denial involves a double negative and so more information is required. This is a situation of a negative pregnant which contains within the double negative an affirmative allegation i.e. that the bank had authority and they will try and prove this in the trial and therefore should be required to give particulars of the affirmative allegation If counsel had not admitted that the double negative contained an affirmative case they would not have done better as that would have left the real nature of the denial in doubt in which case it would have been embarrassing and it would have been struck out.

HELD per Stable J

1.5.1.4

Step Three: Plead non-admissions

A non-admission is used where: (r 166(3)) The party has made inquiries to find out whether the allegation is true/false; and The inquiries made were reasonable (having regard to the filing and serving time constraints); and o Reasonable Enquiry = at least extends to making enquiries of a commonly represented co-defendant: King v Ivanovic The party remains uncertain as to the truth or falsity of the allegation.

If you can show the above, then you can plead a non-admission. 63

Any nonadmission must be accompanied by a direct explanation for that belief (r 166(4)). o Eg: Having made reasonable inquiries, the defendant does not admit the allegation contained in paragraph 8 of the Statement of Claim because the defendant cannot obtain copies of the accounting books. Effect of failure to provide explanation: the party is taken to have admitted the allegation (r 166(5)). o EXCEPTION: Court will not interpret the rules so as to operate to convert a positive denial into a deemed admission in circumstances where further particulars are sought in a denial (Australian Agricultural Services v G&D Elliott). Remember: there is a continuing obligation on the pleader to make further inquiries that might become reasonable, and to amend the pleadings if appropriate (r 166(6)). There may be a costs sanction if you nonadmit a fact that ought to have been admitted. Court may award costs against the party incorrectly not admitting (r 167).

Careful with time limits: Must file Defence with Notice of Intention to Defend o Must be filed within 28 days after Claim filed (see page Error! Bookmark not defined.). Every allegation of fact made in the last pleading filed and served before the pleadings close is taken to be the subject of a nonadmission and rule 165(2) then applies (r 168(1)). o Pleadings close after defence (or answer to counterclaim) is served, or 14 days after service of the defence (r 169) A party who pleads (or is deemed to have plead) a nonadmission may not give or call evidence in relation to a fact not admitted, unless the evidence relates to another part of the partys pleading (r 165(2)).

1.5.1.5

Step Four: Plead Any Set-Offs

The defendant may rely on set-off as a defence to all or party of the claim made by the plaintiff; This is the case whether or not the set off is also included as a counterclaim it does not have to be of an ascertained amount.

173 Set off (1) A defendant may rely on set off (whether or not of an ascertained amount) as a defence to all or part of a claim made by the plaintiff whether or not it is also included as a counterclaim. (2) If the amount of a set off is more than the amount of the claim against which it is set off, then, regardless of whether the set off is pleaded as a counterclaim (a) the set off may be treated as a counterclaim; and (b) the court may give judgment for the amount of the difference or grant the defendant other relief to which the court considers the defendant is entitled. Examples of other relief under subrule (2)(b) injunction, or stay, if within the courts jurisdiction (3) Despite subrules (1) and (2) (a) if the court considers a set off cannot be conveniently dealt with in a proceeding, the court may set aside a defence

64

or counterclaim in the proceeding by way of set off and may order that the set off be dealt with in a separate proceeding; or (b) if the court considers a set off should not be allowed, the court may set aside a defence or counterclaim by way of set off.

65

1.5.1.6

Precedent: Defences in Defamation

DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: D 212 / 0 PLAINTIFF: AND DEFENDANT: NED NEWTON CONCRETO PTY LTD (ACN 000 111 222)

DEFENCE
The defendants rely on the following facts in defence of the claim: 1. The defendants admit the allegations in paragraph 1 of the statement of claim [or as appropriate]. 2. The defendants admit that they published the words set out in paragraph 3 of the statement of claim [but deny that the said words referred to or were understood to refer to the plaintiff (or of him in his profession as alleged in paragraph, (number) or at all)] as the words do not refer to the plaintiff.1. 3. The defendants deny that the said words bore or were understood to bear or were capable of bearing any of the meanings alleged in paragraph [number] of the statement of claim as the said words in their ordinary and natural meaning were incapable of conveying such meanings other than by means of a forced, strained or utterly unreasonable interpretation, and an ordinary reasonable reader of the complained words in the context of the article as a whole could not have understood them as defamatory of the plaintiff. 4. If the words set out in paragraph [number] of the statement of claim bear the alleged defamatory meanings (which is denied) then the defendants say there was lawful excuse for such publication in that: [choose one of these defences] (a) The defendant denies that the said words bore or were understood to bear or were capable of bearing the meanings alleged in paragraphs 4(a)(c) (inclusive) of the statement of claim, and denies that such meanings were defamatory of the plaintiff, as the said words in their ordinary and natural meaning were incapable of conveying the meanings set forth in paragraphs 4(a)(c) (inclusive) of the statement of claim other than by reason of a strained, forced or utterly unreasonable interpretation, and an ordinary reasonable reader of the complained of words read in the context of the article as a whole could not have understood them as defamatory of the plaintiff.

66

(b) If the said words bore the meanings alleged in paragraphs 4(a) and 4(c) of the statement of claim (which is denied), then each meaning is substantially true pursuant to s 25 of the Defamation Act 2005 (Qld) (c) there was lawful excuse pursuant to s 27 of the Defamation Act 2005 (Qld), for such publication in that the occasions on which publication [insert as appropriate] is alleged to have occurred is an occasion or are occasions of absolute privilege. (d) there was lawful excuse pursuant to s 28 [inserting the appropriate subsection] of the Defamation Act 2005 for such publication in that: [as an example only] The publication was made in good faith for the information of the public in that it was a fair summary of, or fair extract of a judgment of, a court [or, arbitral tribunal] in civil proceedings which took place in [insert name of country and or State or Territory of Australia] on the [day] day of [month], [year] in the matter of [identify matter]. (e) there was lawful excuse pursuant to s 29(1)(a) [inserting the appropriate subsection] of the Defamation Act 2005 for such publication in that: [as an example only] The publication was made in good faith for the information of the public as a fair report of the public proceedings of the Supreme Court held at Brisbane on the [day] day of [month], [year] in the matter of [identify matter]. (f) the words of the publication expressed the opinions of the defendant rather than statements of fact; and the defendants opinion related to matters of public interest; and the said words are based on facts that are true or substantially true; and in the premises the said words are fair comment respecting (insert as appropriate) (g) the words of the publication expressed the opinions of the defendant rather than statements of fact.

1.5.1.7

Precedent: Defences in Negligence

500.75 Defences Alcohol, no duty, no breach of duty, volenti, contributory negligence

DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: D 212 / 0 PLAINTIFF: AND DEFENDANT: NED NEWTON CONCRETO PTY LTD (ACN 000 111 222)

67

DEFENCE
The defendant by election relies on the following facts in defence of the claim: 1. The defendant by election admits: (i) that the plaintiff was at all material times a passenger in the [name of vehicle] driven by the defendant. (ii) that at approximately [time] on the [day] day of [month] [year], the [vehicle of defendant ] left the [name of road], and collided with a large tree growing some ten metres from the highway.

2. At all material times, the defendant was under the influence of alcohol to such an extent that he was unable properly to control the [name of vehicle]. 3. The [name of vehicle] had, in the course of the journey leading to the collision, left the roadway on a number of occasions, and narrowly avoided colliding with trees and other vehicles, as the plaintiff well knew. 4. The plaintiff had travelled for some distance as a passenger in the [vehicle] upon its journey. 5. The plaintiff well knew and fully appreciated the fact that the defendant was under the influence of alcohol. 6. Nonetheless, whilst fully appreciating the risk of injury to himself, the plaintiff freely rode as a passenger in the vehicle, and neither took advantage of an opportunity to dismount from the vehicle, nor requested the defendant to permit him to drive. 7. In the circumstances, the defendant owed no duty of care to the plaintiff. 8. Alternatively, if the defendant did owe any duty of care to the plaintiff, it was, by reason of the said circumstances, not the duty of the care normally owed by a driver to a passenger, but an attenuated duty, and the defendant did not breach such attenuated duty to the plaintiff as he did owe. 9. Further and in the alternative, with full knowledge and appreciation of the risk of injury to himself, the plaintiff freely elected to ride as a passenger in the vehicle, and voluntarily incurred the risk of injury to himself. 10. Further and in the alternative, any injury suffered by the plaintiff was caused or contributed to by the negligence of the plaintiff. PARTICULARS

(i) Riding as a passenger in the vehicle when it was driven by the defendant, who was, to the knowledge of the plaintiff, so affected by alcohol as to be unable properly to control the vehicle; (ii) riding in the vehicle when he was fully aware that the defendant had been drinking alcohol for some considerable time, and when a reasonably prudent person would not, in the circumstances, have ridden in the vehicle;

68

(iii) failing to wear, properly adjusted and securely fastened, a seatbelt provided for his use in the seating position occupied by him in the vehicle, when a reasonably prudent person would not have so failed, and when such failure constituted a breach of regulation 265 of the Transport Operations (Road Use Management Road Rules) Regulation 1999.

500.80 Defences contributory negligence of plaintiff driver

The first defendant relies on the following facts in defence of the claim: 1. The first defendant admits that he was at all material times the driver of the [name of vehicle]. 2. The first defendant admits that on the [day] day of [month] [year], his [name of vehicle ] collided with the plaintiff's [bicycle] at a point [give details of site of collision, for example appropriately 70 metres north of the intersection of Queen and George Streets Brisbane]. 3. The first defendant denies that he was guilty of negligence because he took reasonable care for the safety of other users of the road while driving his vehicle. 4. The said collision, and any injury suffered by the plaintiff, were caused or contributed to by the negligence of the plaintiff: PARTICULARS

(i) Failing to keep any or any proper lookout; (ii) riding at an excessive speed in the circumstance; (iii) suddenly making a right turn across the defendant's path of travel, when a reasonably prudent cyclist would not have done so; (iv) failing to signal his intention to make a right turn, in breach of regulation 48 of the Transport Operations (Road Use Management Road Rules) Regulation 1999.

500.85 Defences master/servant action

The defendant relies on the following facts in defence of the claim: 1. The defendant admits that it is and was at all material times duly incorporated according to law. 2. The defendant denies that it at all material times employed the plaintiff as a [mechanic] and says that the plaintiff's employment had already been terminated and the plaintiff was present on the premises in order to assist his brother, without the knowledge of the defendant. 3. The defendant admits that on the [day] day of [month] [year], a motor vehicle which had been positioned upon a hoist suddenly fell, injuring the plaintiff. 4. The defendant denies that this event was caused by negligence on its part for the

69

reasons referred to in paragraph 5 herein. 5. The said event was caused or contributed to by negligence on the part of the plaintiff: PARTICULARS

(i) Failing to ensure that the vehicle was securely positioned on the hoist before activating the lifting mechanism of the hoist; (ii) failing to secure the vehicle to the platform of the hoist, by means of the chains provided for that purpose; (iii) breaching a clear written instruction by the defendant, which appeared on a sign immediately adjacent to the hoist, and which read as follows: DO NOT ACTIVATE HOIST UNLESS THE VEHICLE IS SECURELY CHAINED DOWN ONTO THE PLATFORM OF THE HOIST (iv) failing, before activating the hoist, to check the position of the vehicle on the hoist, and to ensure that the handbrake thereof was engaged, and that the automatic gear selector was in the park position; (v) activating the hoist without taking any steps to restrain the vehicle, when he knew or ought to have known that the vibration in the said hoist would cause the vehicle to roll unless it was securely restrained.

1.5.1.8

Precedent: Defences in Breach of Contract

DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: D 212 / 0 PLAINTIFF: AND DEFENDANT: NED NEWTON CONCRETO PTY LTD (ACN 000 111 222)

DEFENCE

STATEMENT OF INTENTION ONLY 1. As to the agreement alleged in paragraph [number] of the statement of claim, the defendant: (a) admits that the defendant stated to the plaintiff that at the end of the term of the lease she [or he] would be able to purchase the goods the subject of the lease at a price equal to their residual value;

70

(b) denies that such statement was intended to have contractual effect because [reason].

TERMS UNCERTAIN OR INCOMPLETE 1.The defendant admits that the lease alleged in the statement of claim granted the plaintiff an option for renewal for a further period of [number] years on the same terms and conditions at a rent to be agreed. 2. The defendant says that the said option is void for uncertainty in that it does not specify any rent for the renewed term.

NO INTENTION TO CREATE LEGAL RELATIONS 1. The defendant admits that, at her request, the plaintiff emigrated with his wife and children to Australia and commenced to reside with the defendant (the request). 2. The defendant denies that she agreed to purchase a house for the plaintiff and to put it in his name if he complied with the request. 3. Alternatively, if there was such an agreement, the defendant says that it was not intended to create legal relations but was a family or domestic arrangement only. NO CONSIDERATION 1. The defendant admits that he executed the document referred to in the statement of claim promising to guarantee the debts of [name] to the plaintiff. 2. The defendant: (a) does not admit that the plaintiff forbore from bringing proceedings against [above named] in respect of the debt; (b) says that if the plaintiff did forbear as alleged, it did not do so at the request of the defendant. 3. In the premises the said promise is unsupported by consideration and is void and unenforceable by the plaintiff.

1.5.1.9

Precedent: Defence in Nuisance

SUPREME COURT OF QUEENSLAND

REGISTRY: [place] NUMBER: [number]

71

Plaintiff:

[name of plaintiff] AND

Defendant:

[name of defendant]

Filed in the [place] registry on [date]. DEFENCE

The defendant relies on the following facts in defence of the claim: 1. The defendant admits the facts alleged in paragraphs [specify] of the statement of claim. 2. The defendant does not admit the facts alleged in paragraphs [specify] of the statement of claim and says that, having made all reasonable enquiries, it cannot determine whether or not that allegation is correct because it is as to facts solely within the knowledge of the plaintiff (or as the case may be). 3. [Plead to each paragraph not admitted with the appropriate explanation in each case.] 4. The defendant denies the facts alleged in paragraph [specify] of the statement of claim and says that what happened was that (set out details of what the defendant alleges instead ) [or: says that to the knowledge of the defendant that did not occur, or as the case may be.] 5. [Plead to each paragraph denied with the appropriate explanation in each case.] 6. [Plead additional factual matters] [The document should have, at the foot of the first page, the following:]

DEFENCE Form 17; R 146

[Name of party or solicitor filing document, address for service, telephone number, fax number.]

Filed on behalf of the [party]

7. [Further or in the alternative] the matters alleged in the statement of claim [if they occurred, which is denied] amounted to and were no more than a natural and reasonable use by the defendant of his land, and are therefore not an actionable nuisance.1. 1. Further or in the alternative the matters complained of in the statement of claim were caused wholly or in part by the negligence of the plaintiff.

{SELECT ONE OF THE FOLLOWING}

72

ACTS OF TRESPASSERS 5. [Further or in the alternative] the matters complained of in the statement of claim [if they occurred, which is denied] were the consequence of the acts of trespassers whose identity is not known to the defendant, and who entered the defendant's land on or about [date] and while on the defendant's land did [identify what the trespassers are alleged to have done in order to cause the nuisance]. 6. The defendant was not aware until [date] of the acts of such trespassers, and has not failed thereafter to take reasonable care to avoid harm to the plaintiff. STATUTORY AUTHORITY 5. The defendant was authorised to construct the works referred to in the statement of claim [or in paragraph (number) above] by the State Tanning Works Act 1933, pursuant to an Order in Council of [date] [or as the case may be]. 6. Such works were constructed with reasonable care to avoid unnecessary harm to the plaintiff. 7. The effect of such works on the plaintiff the subject of the statement of claim is the inevitable consequence of the construction and operation of the works authorised by that Act. 8. In the premises the construction and operation of the works are not actionable in nuisance. ABATEMENT BY PLAINTIFF 5. If [which is denied] the matters complained of in the statement of claim constitute an actionable nuisance, the plaintiff on [date] entered on the defendant's land with workmen and abated the nuisance by [insert details of what was done]. 6. In the premises if the works referred to in the statement of claim were a nuisance, the plaintiff's right to damages for nuisance in respect of damage caused by them has been lost. 7. The defendant does not intend to reconstruct the works dismantled by the plaintiff.

73

1.5.1.10

Precedent: Defence to Breach of s 52 TPA

DISTRICT COURT OF QUEENSLAND REGISTRY: BRISBANE NUMBER: D 212/XX

PLAINTIFF:

CONCRETO PTY LTD (ACN 000 111 222) AND

DEFENDANT:

NED NEWTON

Filed in the Brisbane Registry on: (date) DEFENCE AND COUNTERCLAIM DEFENCE This defendant relies on the following facts in defence of the claim: 1. The defendant admits the allegation in paragraph 1 of the statement of claim. 2. The defendant denies the allegations in paragraphs 2 and 3 of the statement of claim and believes the allegations are untrue because although the defendant inspected concrete agitators as alleged by the plaintiff, [and the plaintiff offered to sell the agitators at the price alleged by the plaintiff] the defendant did not agree to buy the concrete agitators from the plaintiff. 3. The defendant denies the allegations in paragraphs 4 and 5 of the statement of claim and believes the allegations are untrue because there was no agreement as alleged by the plaintiff in paragraphs 2 and 3 of the statement of claim.

4. The defendant admits that eight concrete agitators were delivered by the plaintiff to the defendant on or about 16 February 20XX [but otherwise denies the allegations in
paragraph 6 of the statement of claim and believes the allegations are untrue because there was no agreement as alleged by the plaintiff in paragraphs 2 and 3 of the statement of claim]. 5. The defendant admits that he has not made any payments to the plaintiff but denies the other allegations in paragraph 7 of the statement of claim and believes the allegations are untrue because there was no agreement as alleged by the plaintiff in paragraph 2 and 3 of the statement of claim.

74

Defence and Counterclaim Filed on behalf of the Defendant Form 18, RR 146,179

SJ Smith & Jones Solicitors 48 Pringst Street BRISBANE QLD 4000 Ph: (07) 3888 9998 Fax: (07) 3888 9999

COUNTERCLAIM
This counterclaim is made by the Defendant against the Plaintiff. This counterclaim is made in reliance upon the following facts: 1. The defendant is the occupier of the premises situated at 45 Bayside Street, Bilsworth in New South Wales. The defendant conducts business at the premises as a supplier of pre-mixed concrete. On or about 16 February 20XX the plaintiff deposited eight concrete agitators at the premises occupied by the defendant. The agitators were deposited without the request or consent of the defendant. The agitators were deposited at locations where they interfered with the efficient operation of the defendants business. As a result of the matters set out above the defendant was required to incur expense in relocating the concrete agitators, particulars of which are as follows: hire of low loader (4 hours at $160 per hour) hire of crane (4 hours at $250 per hour) hire of supervisor/dogman (4 hours at $90.00 per hour) $ 640.00 $1000.00 $ 360.00 $ 2000.00

2. 3.

4. 5.

6.

[students may have included here a claim for loss of profits.] The Defendant claims the following relief: The sum of two thousand dollars ($2000.00) together with interest on that amount at . per centum per annum from .to date of judgment under section 58 of the Civil Proceedings Act 2011 (Qld). Signed: Description: Solicitor for the Defendant

[This pleading was settled by (name) of Counsel].

NOTICE AS TO REPLY AND ANSWER To the Plaintiff: You have 14 days within which to file and serve an answer to this counterclaim. If you do not do so, Rule 166 provides that allegations of fact

75

in the counterclaim are taken to be admitted by you unless denied or stated to be not admitted by you in a pleading. Address of Registry: Law Courts Complex George Street, Brisbane PARTICULARS OF THE DEFENDANT: Name: Defendants business address: Defendants solicitors name: and firms name: Solicitors business address: Address for service: DX (if any) Telephone: Fax: E-mail address: Ned Newton 45 Bayside Street, Bilsworth, New South Wales Fred Bloggs Messrs SJ Smith and Jones Solicitors

76

1.5

Defence and Counterclaim (How to Draft)

Essentially claim in its own right to facilitate a joint trial of two claims. o o Same rules/procedures as for a Statement of Claim Same rules for fundamental rules: r149

IF counter-claim inappropriate: Court can exclude a counter-claim if it considers it inappropriate: r182 (under r171) o If the nature of the trial wouldnt suit a combined hearing of the matters e.g. A sues B for negligence; B counter-claims A for breach of commercial contract 2 years ago; and only link is the same parties; court can hear together, but likely would not. IF no counter-claim but there is a set-off: If the amount set off is more than the amount of the claim then it will be treated as a counterclaim: r173. Doesnt matter if not included as a counter-claim: r173(1). Set-Off is a defence whereas a counterclaim is an independent cause of action if plaintiff stops action set off will fall with a discontinuance whereas counterclaim will remain and go to trial: r183. IF adding other parties: Defendant can make a counterclaim against a person other than the plaintiff (whether or not already a party to the proceeding) where: r178(1) (a) plaintiff is also made a party to the counter-claim; and (b) either: (i) the defendant alleges that the other person is liable with the plaintiff for the subject matter of the counterclaim; or ii) the defendant claims against the other person relief relating to or connected with the original subject matter of the proceeding. IF Federal Court: Same test applies as r179(1)(b)(ii): s244(3) Sup. Court Act; Watkins v Plancorp IF dont want to add plaintiff as party: The defendant may file a Third Party Notice if the defendant wants to: r192 HEDGE NOTES DUMP: Division 2 Part V of Chapter 6, see rr 175- 185 77

Same requirements for a statement of claim It must disclose a cause of action + the necessary material facts for each element of the cause of action Permitted to make counter claim against plaintiff: r177 Also permitted to make counterclaim against other parties under r178 It is pleaded in same document as defence, called a Defence and Counterclaim: r 179 Form 18; r 179 The time for service of a counterclaim is also governed by r 137 as any Counterclaim must be included in the same document and served within the same time as the Defence. As between plaintiff and def: no limit imposed upon the nature of matters which may be the subject of the counterclaim BUT Note r 182; reserves discretion to the court to exclude a counterclaim from the proceedings in which it is made AND give directions which the court thinks is appropriate in relation to that counter claim. Likely to be severed if claim is outside jurisdiction of the court in which the original claim is brought
182 Exclusion of counterclaim The court may, at any time, exclude a counterclaim from the proceeding in which the counterclaim is made and give the directions the court considers appropriate about the conduct of the counterclaim.

Counterclaim against additional parties Defendant allowed to counterclaim against parties other than the plaintiff: r178
178 Counterclaim against additional party (1) A defendant may make a counterclaim against a person other than the plaintiff (whether or not already a party to the proceeding) if (a) the plaintiff is also made a party to the counterclaim; and (b) either (i) the defendant alleges that the other person is liable with the plaintiff for the subject matter of the counterclaim; or (ii) the defendant claims against the other person relief relating to or connected with the original subject matter of the proceeding. (2) If a defendant counterclaims against a person who is not a party to the original proceeding, the defendant must (a) make the counterclaim; and (b) serve the defence and counterclaim and the plaintiffs statement of claim on the person within the time allowed for service on a plaintiff. (3) A person not a party to the original proceeding who is included as a defendant to a counterclaim becomes a party to the proceeding on being served with the defence and counterclaim. (4) If a defendant makes a counterclaim against a person not a party to the original proceeding, chapters 2, 4 and 5 and Chapter 9, part 149 apply as if (a) the counterclaim were a proceeding started by a claim; and (b) the party making the counterclaim were a plaintiff; and

78

(c) the party against whom the counterclaim is made were a defendant.

Supreme Court and all judges have similar power to grant defendant relief against any plaintiff or other person where relief relates to or is connected with original subject matter of claim: Supreme Court Act 1995 (Qld), s244(3) connected to the original subject matter Watkins v Plancorp No.6 P/L Def coy had local authority approval to construct a building on land which it owned. Approval would lapse unless the building work was commenced before 6 January 1982. Def contracted to sell the land to Watkins Partnerships. The contract was to be settled on or before 28 February 1982. On the same date another agreement was made between Watkins Partnerships, the defendant and the plaintiff building company. That agreement required the plaintiff to undertake enough building works to maintain the approval. The defendant agreed to pay for the works within 14 days of delivery of an invoice but the invoice was not to be delivered until after 28 February (when the contract of sale of the land was to be settled). Once the purchase of the land by Watkins Partnerships was completed, it was to accept full liability to the plaintiff, and the defendant was to be relieved of that liability. The land sale was not completed on the due date and had still not occurred when, in May 1982 the plaintiff delivered to the defendant an invoice for $200,000 for work done under the deed. That sum had not been paid and the plaintiff issued proceedings against the defendant for that amount. The time for settlement under the contract of sale had been extended but by then had arrived. After the action had been allocated dates for trial the defendant applied to deliver a counterclaim against the plaintiff to which it proposed to join Watkins Partnerships as codefendants. The relief claimed against Watkins Partnerships must be related to or connected with the subject matter of the original action It was clear that specific performance of the land contract would result in its completion, which would in turn transfer liability for the contract sum from the Def to Watkins Partnerships and it was that contract sum which was the subject of the claim in the original action by the builder Though permitting the delivery of the amended defence and counterclaim and adjourning the trial McPherson J ordered the defendant to pay both the costs thrown away by the adjournment and the costs of the application

HELD per McPherson J

Procedural Requirements: The defendant must both make the counterclaim, and serve the defence and counterclaim and the plaintiffs statement of claim on the person within the time allowed for service on a plaintiff. See rr 137, 139 and 179.
179 Pleading and serving counterclaim

79

A counterclaim must be in the approved form and must be included in the same document and served within the same time as the defence.

Miscellaneous It is still subject to r 182 (discretion) i.e. the third party can apply to the court for an order that the CC be disposed of separately from the action or that it be excluded. If the plaintiff is not a party to the counterclaim, use third party proceedings in r 192. Must comply with r 149 (statements in pleadings) because the rule applies to counterclaims. Under r 178(3) a person not a party to the original proceeding who is included as a defendant to a counterclaim becomes a party to the proceeding on being served with the defence and counterclaim.

1.6

Reply (to Defence) by Plaintiff (How to Draft)

Only necessary to reply where the defence raises a new allegation of fact that requires more than a simple denial.
A plaintiff may reply to a defence - but it is only necessary if the defence raises a new allegation of fact that requires some response more than a mere denial. No separate form is required for a reply: it is drafted using Form 17 like a defence (SEE APPENDIX) Rule 164(2) UCPR requires that any reply must be filed and served within 14 days after the service of the defence or answer to counterclaim. Again this time limit is subject to a contrary order of the court. A reply cannot be used to raise a new cause or action nor to allege any matter which is inconsistent with the statement of claim: r 154 UCPR; Herbert v Vaughan Davie v New Merton Board Mills: Facts: Plaintiff was using a drift and hammer in the course of employment by the defendant and was injured when it splintered injuring his eye. He pleaded negligence of the employer for not providing safe tools. The defendant alleged that it was not negligent because it purchased the tool from a reputable manufacturer. Decision: As the allegation made by the defendant was a new allegation of fact, the plaintiff may state in reply that the manufacturer was not reputable. Johnson v Sewell: Facts: The plaintiff sued for negligence with respect to injuries sustained while working on a ship in dock. He alleged that he left the ship via a particular ladder which was the only available means of egress from the said ship. The defendant denied that allegation. Decision: If the plaintiff wanted to allege that there were no other ladders, that would not require a reply. However, if the plaintiff wanted to respond to the defendants allegation that there were other ladders by stating they were blocked, that would warrant a reply.

80

1.7

Answer (to Defendants Counterclaim) by Plaintiff (How to Draft)

Plaintiff may plead to the counter-claim by serving an answer to the counter-claim: r180 o o o o o o IF you dont then defendant can seek judgment with respect to the counter-claim (i.e. default) MUST be filed and served within 14 days of receipt of the counter-claim; unless person answering counter-claim isnt the original party then 28 days. No particular form just make documents listing facts similar to defence only amend a Form 17.
In practice, a defendant to a counterclaim must answer any counterclaim. A failure to do so will allow the defendant to seek a default judgement under r 280 UCPR. No separate form is required for a reply: it is drafted using Form 17 like a defence (SEE APPENDIX) Any answer to counterclaim must be filed and served within 14 days after the day the counterclaim is served, or if the defendant is not a party to the original proceeding, 28 days after the counterclaim is served: r 164(1) UCPR

1.8

Challenging / Objecting to Pleadings (Applies to All Pleadings)

You can challenge or object to the other partys pleading where it has not complied properly with any of the above rules to such an extent that you cannot reply sensibly to the document. You have two options (you should pursue both in the application): Have the pleading struck out under r 171; and/or Invoke the courts inherent jurisdiction to prevent abuse of its process, or where pleading is frivolous/vexatious.

171 Striking out pleadings (1) This rule applies if a pleading or part of a pleading (a) discloses no reasonable cause of action or defence; or (b) has a tendency to prejudice or delay the fair trial of the proceeding; or (c) is unnecessary or scandalous; or (d) is frivolous or vexatious; or (e) is otherwise an abuse of the process of the court. (2) The court, at any stage of the proceeding, may strike out all orpart of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis. (3) On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.

Discloses no reasonable cause of action Not to be used except in a clear case where the lack of a cause of action is clearly demonstrated. The exercise of the jurisdiction shouldnt be reserved for those unnecessary to evok e the futility of the claim. Argument, even if extensive, might be necessary to 81

demonstrate that the case the plaintiff is so clearly untenable, that it could not possibly succeed: General Steel Industries v Commissioner for Railways Similarly in Qld, action must be clearly untenable: Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd & Ors [2003] QSC 402

Frivolous or vexatious Vexatious: encompasses plaintiffs who keep bringing proceedings against a party where they may have bought related proceedings and have framed them in different ways. Frivolous lacking in substance Chaffer v Goldsmith Court struck out an action which was bought against a member of parliament on the basis that the member refused to present a petition

Unnecessary or scandalous Unnecessary where plaintiff pleaded a whole lot of material NOT related to the material facts essential to establish material cause of action. Scandalous where it includes indecent or offensive material.

Brooking v Mandslay Plaintiff in the statement of claim made allegations of dishonest conduct against the def. But in reply clearly stated that he sought no relief on the basis of the allegation of dishonesty. i.e. they were pleading the Def has acted like a rogue but I ask no relief on that ground The allegations were struck out as being scandalous. Examples Note discretion to strike out usually sparingly used If failure to replead material fact, courts often allow parties to amend pleadings or, strike out with leave to replead

82

Drummond-Jackson v British Medical Association [UK DECISION] Defs wrote an article saying a dental surgeons special technique was dangerous. Dentist brought a libel action alleging they falsely and maliciously published a defamatory paper regarding him and set out the full text of the paper Def applied for an order that the action be struck out on the grounds that the SOC disclosed on reas cause of action HELD The power to strike out the SOC is a summary power which should be exercised only plain and obvious cases The SOC must have some chance of success, when only the allegations in the pleading are considered It is not permissible to anticipate the defence nor anything which the Pl may plead in reply and seek to rely on at trial It will not be struck out unless the words complained of are incapable of bearing any meaning defamatory of the Pl here held NO

General Steel Industries v Commissioner for Railways Pl brought proceedings against Commr for Rwys seeking to restrain a patent infringement however it was obvious that the action could succeed as the Commr was exempted under the Patents Act as a state authority Commr brought an action to strike out the SOC HC HELD per Barwick CJ Jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case. One test is that it is so obviously untenable that it cannot possibly succeed or to stand would involve useless expense Once there is a real Q to be determined (fact or law) that he rights of the ptys depend on it, the ct should not dismiss it Barwick CJ said I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the Pls claim. Argument may be necessary to demonstrate the the case of the Pl is so clearly untenable that it cannot possibly succeed. Here there was no cause of action as the statute was sufficiently clear The Pl was not allowed to replead as this was not a case where amendment of the pleading could improve the Pls position

Inglis v Commonwealth Bank of Australia Def sought summary judgement arguing that the Ct did not have jurisdiction to hear the Pls action as pleaded because it directly affected title to foreign land. HELD per Woodward J The principles are the same, whether the inherent jurisdiction of the court or rules of the court are invoked. The claim was one directly affecting title to land and not involving the enforcement of contractual or fiduciary obligations - the law was clear and only its application to the unusual circumstances the case created some doubt. 83

The court had no jurisdiction to entertain the claims

1.9

Challenges / Objections to Particulars (Applies to All Pleadings)

The court has the power to strike out particulars: r162(2) Will be struck out if they: r162(1) (a) has a tendency to prejudice or delay the fair trial of the proceeding; or (b) is unnecessary or scandalous; or Examples: Statements as to the character of a defendant are unnecessary and scandalous: Brooking v Mandslay pleading that husband assaulted a girl in action for rectification of marriage settlement: Coyle v Cuming pleading that party usually conducted business dishonestly: Blake v Albion

(c) is frivolous or vexatious; or (d) is otherwise an abuse of the process of the court. Where there is a real question of law or fact to be determined then wont be frivolous or vexatious or an abuse of process: General Steel v Commissioner for Railways

If particulars are set aside then the party will be in fault of either r155 r157 or r159. Thus bring with an order under r161 for further and better particulars. Any further breach will allow the court to make an appropriate order or give judgment: r163.

1.10 Notice to Admit Facts or Documents

Notice to admit facts The first party may serve notice to admit facts and documents: r 189(1) Party served with notice is to respond with notice of dispute within 14 days otherwise party is taken to admit facts or authenticity of documents specified in the notice: r 189(2) Admission so made can only be withdrawn with leave of the court: r 189(3) 84

Costs sanction r 189(4): if the party disputes a fact or document, and afterwards the fact of document is proved the party must pay the costs of proof, unless court otherwise orders.

Cormie v Orchard o Abuse of process if you call on a party to admit a paragraph that has more than one meaning Rodolfi v Regato Farms o o o o Application to allow withdrawal Party that served notice did everything they had to Nothing in writing by the other party done nothing to withdraw admissions A ct asked to exercise the discretion to permit withdrawal would usually expect sworn verification of the circs justifying a grant of leave. o They might include why no response to the notice was made as required, the response they would belatedly seek to make and confirmation that the response would accord with evidence available to be led at a trial. Also, issues of prejudice must be considered. Coopers Brewery o must have option to withdraw admissions o no presumption for or against allowing the withdrawal o want people to feel encouraged in making withdrawals cost less in trial process White Industries v Flower & Hart o $1m costs sanction Can also make voluntary admissions: r187
R 187 Voluntary admission A party to a proceeding may, in addition to an admission in a pleading, by notice served on another party, admit, in favour of the other party, for the proceeding only, the facts specified in the pleading or notice

85

1.11 Pleadings Checklist

Requirement Form Requirements

Authority

Correct?

Format: A4, white or cream, prescribed minimum margins, proper r 961 binding, etc. Initial rules for claims (only if given a Claim as well): The claim must be in the approved form (Form 2). A Statement of Claim must be attached (Form 16) r 22 (1) r 22 (2)

The claim must contain a statement informing the defendant r 23 of the relevant time limited for filing a notice of intention to defend and that if the defendant does not comply, a default judgment may be obtained against the defendant without further notice. Initial rules for Defence & if required, counterclaim: NOITD contained in form 6 Defence must be attached form 17 If counterclaim as well as defence, for 18 Header & Footer (Generally included in the form) Correct Court Correct Registry No number: - Claim should not be included - Defence as per claim Filed in the (place) registry on (date). State that it is a Statement of Claim or Defence consecutive page numbering on each page signed by person filing shouldnt be done yet r 146 (1)(c) r 146 (1)(b) r 146 (1)(e) r 146 (1)(d) r 35 r 146 (1)(a)

Statement informing about time for serving pleadings under r 4 146 (2) 164 Footer must contain: Name of document (e.g. claim) Filed on behalf of 86

Form number and rule number Name, address for service, telephone and fax number of solicitor or party filing the document Appear on first page

Party Names If Claim > must include all parties Following pleadings may use abbreviation Do the party names comply with the rules about party names? Litigation Guardian: Pl by their litigation guardian r 93 x Partnership: Claim may be against partnership name NOITD must be partners own name Registered Business Name r 83 r85 r 6 (1) r 6 (2)

r 89 Unregistered business name (can use, but must take reasonable steps to find the name of the rr 90 & 92 person running the business) Company must include CAN Also rules as to death and bankruptcy Rules of pleadings Universal rules as to pleadings Divided into consecutively numbered paragraphs (and sub- r 146 (1)(f) paragraphs), with as far as possible, separate allegations be as brief as the nature of the case permits All circumstances must be considered (Robinson v Laws {action against John Laws. Held that the pleading was repetitious
and prolix. The pleading contained transcripts of audio, which was not fact and it was therefore a breach of the rules. It was struck out.}).

Corp Act s153(2)

r 149 (1)(a)

The pleading must not be repetitious (Robinson v Laws). Spoken words and documents A pleading should state the effect of spoken words or a r 152 document as briefly as possible unless precise words are material Contain a statement of all the material facts on which the r 149 (1)(b) party relies but not the evidence by which the facts are to be 87

proved. a) Material facts are facts that are relevant to the specific case (Kirby v Sanderson Motors Pty Ltd); b) Mentioning specific documents can constitute material facts, and is not necessarily purely evidence (Phillips v Phillips). For example: a. X signed this contract = fact b. X had a meeting with Y on date = fact; but X has a diary that supports that he had a meeting with X = evidence. c) This does not preclude conclusions of law (Kirby v Sanderson Motors Pty Ltd); state specifically any matter that if not stated specifically r 149 (1)(c) may take another party by surprise The material facts must be stated in such a way so as to allow the defendant to understand how facts are material to the cause of action (Kirby v Sanderson Motors Pty Ltd). Question of Fact / Law: A party may plead a conclusion of r 149 law if they support it with the material facts that support it Creedon In Creedon v Measey Investments Pty Ltd, the court refused to Measey strike out a paragraph relating to a defendant as it was clear Investments that this was intended to assert that they were vicariously Ltd liable. {NB: parties are not restricted by their conclusions of law in the pleadings, provided that the material facts are included (Re Vandervell Trusts)} Inconsistent allegations may be made only if they are r 154 pleaded as alternatives. A party may not make a new allegation or claim that is inconsistent with a previous pleading without amending that pleading In either the Statement of Claim or Defence, a party may elect r for a trial by jury if not precluded. In the Federal Court, they direct a trial by jury. Bankruptcy Things that must be specifically plead a claim or defence under an act that a party relies on r 149 (1)(e) specific provision - defence under the limitations of actions act r 150 (1)(c) 88 472 (2); v Pty

Fed Crt ss39 & 40 Bankruptcy Act s 30 (3)

breach of contract or trust duress estoppel

r 150 (1)(a) r 150 (1)(d) r 150 (1)(e)

fraud {note obligations under LPA about requiring sufficient r 150 (1)(f) evidence} illegality malice or ill will misrepresentation r 150 (1)(g) r 150 (1)(i) r 150 (1)(j)

motive, intention or other condition of mind, including r 150 (1)(k) knowledge or notice negligence payment performance part performance release undue influence voluntary assumption of risk waiver want of capacity, including disorder or disability of mind r 150 (1)(l) r 150 (1)(m) r 150 (1)(n) r 150 (1)(o) r 150 (1)(p) r 150 (1)(q) r 150 (1)(r) r 150 (1)(s) r 150 (1)(t)

that a testator did not know and approve of the contents of a r 150 (1)(u) will that a will was not properly made wilful default r 150 (1)(v) r 150 (1)(w)

anything else required by an approved form or practice r 150 (1)(x) direction All facts that infer anything in s 150(1) must be plead r 150 (2) 150 150 (4) (4)(a)

In defence or a pleading after a defence, a party must plead a r matter that: alleges that a claim or defence of another party is not r maintainable

89

shows a transaction is void or voidable

r 150 (4)(b) 150 (4)(c)

if not specifically pleaded might take the other party by r surprise

raises a question of fact not arising out of a previous r 150 (4)(d) pleading. Things that need not be plead Unless required to by r 149 or to meet a denial by another party, r 151 a party is not required to plead a fact if: The law presumes the fact in the partys favour; or The burden of proving the fact does not lie with the party. 153 (1)

The performance or occurrence of a condition precedent r necessary for the case is implied

A party who denies the performance or occurance of a condition r 153 (2) precedent must specifically plead the denial Claim (and counterclaim) specific rules Must disclose a cause of action Specific Causes of Action: Defamation identification of defamatory statement, Ron Hodgson P/L v Belvedere Motors publication & damage v Negligence facts constituting duty, breach & McCauley Hamilton Island damage Restraint of Trade Who are the parties How connected to the dispute If the Pl/def is a corporation, that they were incorporated at all material time {it is optional to include reference to the fact that they can sue and be sued}

Introductory statements covering:

The claim should not anticipate the defence. This should be done in the reply. Possible exceptions may be: Relief The relief Claimed must be plead r 149 (1)(d) The defendant is estopped from denying xyz The defendant has waived their right of xyz

The pleading must contain (main part, not just the r 155 (2) relief claimed): 90

Nature of the loss or damage suffered Exact circumstances of the loss Basis on which the amount claimed has been worked out or estimated

Liquidated Demand {amount certain capable by r 150 (3) ascertaining by reference to a scale or formula e.g. debt: Spain v Union Steamship Company of New Zealand (1923) 23 CLR 138} Where there is a claim for a a debt or liquidated demand, the following details must be stated: (a) Particulars of the debt or liquidated demand (b) Interest pursuant to r 159 (c) The amount claimed for the costs of issuing the claim and attached statement of claim (d) A statement that the proceedings ends if the defendant pays the debt or liquidated demand and interest and costs before the time for filing the NOITD ends (e) A statement of the additional costs of obtaining judgment in default of NOITD This is covered by the notice in form 16 Unliquidated When damages are claimed, the nature and r 155 amount of damages must be included (i.e.
compensatory damages {broken up into special {incurred} and general?}, aggravated, exemplary, nominal)

Where interest is claimed, the amount r 159 & 50(1)(b) It must incl, the rate and method of calculation r 150 (1)(h) from breach to judgment Supr Crt s 47 incl on what amounts and the days r 159 from which interest is claimed; however the rate need not be specified if it is the one specified in the practice direction Supr Crt s 48 From judgment to payment NB: the court may grant relief not in the pleadings r 156

It is not sufficient to say that further particulars will be Meredith v provided at a later date Palmcam Pty Ltd Defence Specific Rules Every allegation of fact must be answered in the Defence. 91

A party may respond by a denial, admission or nonadmission

r 165

An admission is taken to have occurred if there is no denial or r 166 (1) nonadmission Admissions It is usually convenient to do all admissions in one paragraph A party may latter admit a fact r 168 (2)

Denial The denial must be accompanied by a direct explanation r for the partys belief as to why it is unture e.g. The Defendant denies paragraph x, because the Defendant has a different recollection of events, namely Failure to do this will be treated as an admission. However, this is not applied indiscriminately. In Australian Agricultural Services Pty Ltd v G & D Elliot Pty Ltd, the court held that a strict interpretation would be contrary to r 5, because the defendant required further and better particulars to be able to admit. A denial may be made with other denials in the same r 166 (7) paragraph, provided that it is dealt with specifically. The court may order a party who they consider should r 167 have admitted an allegation, to pay additional costs caused by the denial or admission. Where a negative assertion is made by the other side, Johnson v Sewell particular care should be taken when denying it, because it may come across as a positive assertion. As such, they should clarify it by providing clear and adequate particulars. Johnson v Sewell allegation that there was only one ladder to escape. Denial of this was in fact a positive assertion as to the fact that there were multiple laders. In any case, this should be covered in the reasons for denial. Nonadmission A nonadmission may only be made where: They have made inquiries into the truth; and That inquiry was reasonable given the time 92 r 166 (3) 166 (4)

r 166 (5)

limited for filing and serving; and The party remains uncertain as to the truth or falsity of the allegation

A reasonable inquiry is that of a commonly represent The non-admission must be accompanied by a direct r explanation as to the partys belief as to why it cannot be admitted e.g. Having made reasonable inquiries, the Pl does not admit xyz Failure to do this will be treated as an admission. However, this is not applied indiscriminately. In Australian Agricultural Services Pty Ltd v G & D Elliot Pty Ltd, the court held that a strict interpretation would be contrary to r 5, because the defendant required further and better particulars to be able to admit. The court may order a party who they consider should r 167 have admitted an allegation, to pay additional costs caused by the denial or admission. Where a non-admission is made, a party is under a duty r 166 (6) to continue to make reasonable inquiries, and if necessary amend the pleadings. If the Def pleads a nonadmission, they cannot raid r 165 (2) evidence in relation to a fact not admitted unless the evidence relates to another part of the partys claim. Other Issues Ensure have checked that all specific pleading requirements in s 150 (4) have been met (discussed above in specific pleading). Counter-claim Specific Form 18, r 176 Served at the same time as the defence Consider rules for Statement of Claim The Court may exclude a counter-claim from the proceeding. This will often be invoked if there is no nexus between the actions. Counter-claim against 3rd party The Defendant may bring a counterclaim against a non- r 178 (1) pl party if they pl is made a party to the counterclaim, and either the defendant asserts that the 3rd party is 93 r 182 r 179 166 (4)

r 166 (5)

liable with the Pl, or the plaintif claims against the other person relief relating to or connected with the original subject matter.
Watkins v Plancorp No.6 P/L Def coy had local authority approval to construct a building on land which it owned. Approval would lapse unless the building work was commenced before 6 January 1982. Def contracted to sell the land to Watkins Partnerships. The contract was to be settled on or before 28 February 1982. On the same date another agreement was made between Watkins Partnerships, the defendant and the plaintiff building company. That agreement required the plaintiff to undertake enough building works to maintain the approval. The defendant agreed to pay for the works within 14 days of delivery of an invoice but the invoice was not to be delivered until after 28 February (when the contract of sale of the land was to be settled). Once the purchase of the land by Watkins Partnerships was completed, it was to accept full liability to the plaintiff, and the defendant was to be relieved of that liability. The land sale was not completed on the due date and had still not occurred when, in May 1982 the plaintiff delivered to the defendant an invoice for $200,000 for work done under the deed. That sum had not been paid and the plaintiff issued proceedings against the defendant for that amount. The time for settlement under the contract of sale had been extended but by then had arrived. After the action had been allocated dates for trial the defendant applied to deliver a counterclaim against the plaintiff to which it proposed to join Watkins Partnerships as co-defendants.

HELD per McPherson J The relief claimed against Watkins Partnerships must be related to or connected with the subject matter of the original action It was clear that specific performance of the land contract would result in its completion, which would in turn transfer liability for the contract sum from the Def to Watkins Partnerships and it was that contract sum which was the subject of the claim in the original action by the builder Though permitting the delivery of the amended defence and counterclaim and adjourning the trial McPherson J ordered the defendant to pay both the costs thrown away by the adjournment and the costs of the application

Reply No Separate Form use form 17 and draft like a defence A Pl may reply to a defence, but it is only necessary if they raise a new allegation of fact. Davie v New Merton Board Mills: defence said that they had purchased the defective tool from a reputable manufacter. This was a new allegation. Johnson v Sewell: you dont need to reply to a simple denial. Answer No Separate Form use form 17 and draft like a defence 94

If an answer is not filed, then the defendant can get a judgment with respect to the counterclaim {no need for a default judgment} Must be filed and served with 14 days of the defence. r 169

95

1.6

Footer Blocks
Name: Address: Phone No: Fax No: Name: Address: Phone No: Fax No: Name: Address: Phone No: Fax No: Name: Address: Phone No: Fax No: Name: Address: Phone No: Fax No: Name: Address: Phone No: Fax No: Name: Address:

CLAIM Filed on Behalf of the Plaintiff(s) Form 2, Version 1 Uniform Civil Procedure Rules 1999 Rule 22 ORIGINATING APPLICATION Filed on Behalf of the Applicants(s) Form 5, Version 1 Uniform Civil Procedure Rules 1999 Rule 26 NOTICE OF INTENTION TO DEFEND Filed on Behalf of the Defendant(s) Form 6, Version 1 Uniform Civil Procedure Rules 1999 Rule 139 APPLICATION Filed on Behalf of the Plaintiff (or Defendant) Form 9, Version 1 Uniform Civil Procedure Rules 1999 Rule 31 STATEMENT OF CLAIM Filed on Behalf of the Plaintiff (s) Form 16, Version 2 Uniform Civil Procedure Rules 1999 Rules 22, 146 DEFENCE Filed on Behalf of the (First) Defendant (s) Form 17 Version 2 Uniform Civil Procedure Rules 1999 Rule 146 DEFENCE AND COUNTERCLAIM Filed on Behalf of the [First] Defendant(s) Form 18, Version 2 Uniform Civil Procedure Rules 1999 Rule 179

Phone No: Fax No:

96

REQUEST FOR DEFAULT JUDGMENT Filed on Behalf of the Plaintiff (or Defendant etc) Form 25, Version 2 Uniform Civil Procedure Rules 1999 Rules 283-287, 289 DEFAULT JUDGMENT Filed on Behalf of the Plaintiff Form 26, Version 1 Uniform Civil Procedure Rules 1999 Rules 283-287, 289 AFFIDAVIT Filed on Behalf of the (party name) Form 46, Version 1 Uniform Civil Procedure Rules 1999 Rule 431 Name: Address: Phone No: Fax No: Name: Address: Phone No: Fax No:

97