Briefed: Commercial Law Updates

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Briefed: Commercial Law Updates

The Strategy of Pleadings

July 07, 2023 • Level Twenty Seven Chambers

0:00 | 56:28

What will the seminar cover?

The Strategy of Pleadings was the second of four education events in 2023 co-hosted by Queensland Young Lawyers and Level Twenty Seven Chambers. Oliver Cook (Level Twenty Seven Chambers) and Jayleigh Sargent (16 Quay Central) facilitated this session.

Topics covered:

- The purpose of pleadings

- Advocacy through pleadings

- Strategic approaches to pleadings

Who should watch?

The session was targeted at those up to PQE 5 years but more experienced lawyers will find it a helpful a refresher.

PRESENTERS

Oliver Cook (Barrister, Level Twenty Seven Chambers)

Oliver joined Level Twenty Seven Chambers from Herbert Smith Freehills, having worked in the firm’s Brisbane and Tokyo offices. He advises and appears for parties in a multitude of sectors, including franchising, insurance, consumer protection, construction, government and insolvency. Having worked on large-scale national and cross-border commercial disputes, including class actions and arbitrations, Oliver is familiar with heavy and complex cases involving the coordination of large teams of lawyers and experts in various jurisdictions, often requiring the adoption of eDiscovery, litigation databases and remote legal hearing technology. He is a contributing author to the LexisNexis publication Court Forms, Precedents and Pleadings Queensland and on the steering committee of ACICA45 which organises activities for early career professionals interested in arbitration.

Jayleigh Sargent (Barrister, 16 Quay Central)

Following over six years working in disputes and insolvency at a boutique litigation firm and then a national firm, Jayleigh was called to the Bar in 2022. Her practice as a barrister centres on commercial, corporate and insolvency litigation, with particular experience in property and contractual disputes.

MATERIALS

The presentation was recorded as a live seminar/webinar. The video recording, PowerPoint and transcript are published here.

'Preparing for Trial' was the first event. You can catch up here.

Did you miss previous seminars? Check out the seminar archive on Level Twenty Seven Chambers' website for the video recordings and associated materials produced by the speakers.

Want to join future seminars live, in person or online? Register your interest.

Website: www.level27chambers.com.au

00:17

Beau Foley (QYL): Good evening everyone. My name is Beau Foley. I am the president of Queensland Young Lawyers. Welcome to tonight's CPD presentation. Just quickly, I would like to acknowledge the traditional owners of the land on which we meet tonight and pay our respects to their elders past, present and extend that respect to any indigenous or Torres Strait Islander peoples joining us here tonight.

Thank you all for coming and thank you to Level Twenty Seven Chambers for hosting us and supporting these events which are fantastic for young lawyers. ‘The Strategy of Pleadings’ is our topic tonight and we have two fantastic young barristers that will be presenting. They are Oliver Cook. Just by way of a bit of a brief introduction. Oliver joined Level Twenty Seven Chambers from Herbert Smith Freehills, having worked both in Brisbane and Tokyo. He advises and appears for parties in many sectors including franchising, insurance, consumer protection, construction, government and insolvency - there's so many. He is also an author for LexisNexis, contributing to various Queensland documents and the like. Our second presenter is Jayleigh Sargent. Following six years’ working in disputes and insolvency at boutique litigation firms and a national firm, Jayleigh joined the Bar in 2022. Her practice as a barrister involves commercial, corporate and insolvency litigation, with particular experience in property and contractual disputes. If we could just put our hands together.

OVERVIEW

02:03

Oliver Cook (OC): Thank you Beau. Good evening, everyone. Welcome to Level Twenty Seven Chambers. [Slide 2] As Beau mentioned, the topic of this evening's discussion is The Strategy of Pleadings. It is a somewhat Delphic title but what we are hoping this evening to provide to you is a few practical strategies that you can employ when you are drafting pleadings. Now, we appreciate that this event is being run in conjunction with QYL and there are a number of people in the room who are early career practitioners. I think it is useful just to say at the outset that for those of you who are early career practitioners at law firms, the utility in being a competent pleader, at least in my mind, cannot be overstated. I think it is a very good way to make yourself useful within the firm and also to earn the trust of those instructing you and at the end of the day will also save your client time and money which are both very important and good things.

[Slide 3] In terms of what we propose to cover this evening, we wanted to start with the purpose of pleadings, what they are and what they are trying to achieve. We will then move to consider a few ways in which you can be a good advocate for your client through your drafting. We are going to provide some examples of what are hopefully good practice and we invite you to reflect on those and please feel free to ask us questions at any stage. Once we have dealt with what good practice looks like, we are going to move to some strategic considerations. So, if nothing else, what we are hoping to leave you with is a series of questions that you can ask yourself when you turn to draft pleadings for your clients that should hopefully inform a more strategic approach when you come to that task. Hopefully, tonight, we are going to demystify some of the features of pleadings and allow you to approach the task with a little bit more confidence. I should say as well, there are I understand some people who are attending online. I understand there is a facility for people to ask questions online, we will address those at the end but if at any stage during the session anyone in the room has questions please feel free to put your hand up and we can address it as we go.

WHAT IS A PLEADING?

04:07

[Slide 4] Let’s start with the question, what is a pleading? In what will be news to no one in the room, I think, a pleading is a written statement of material facts on which each party relies. Just to set the parameters of what we are discussing this evening, we are going to address the Queensland UCPR style of pleading. Obviously, there are different rules in different forums. For instance, in arbitration, there are different expectations about what your pleading or memorial will look like. In the Federal Court, the rules are again different, there are different documents and instruments and forms of pleading, for example, a concise statement. But tonight, what we are going to be talking about, applications, statements of claim, defences, replies, rejoinders, etc. Now, of course, there are rules about what those documents need to do, when to use them and when not to use them. We are not going to address those rules tonight as you are all already likely aware of what those rules are and certainly at least capable of looking them up when you come to the task of drafting pleadings. We are going to focus on the content that those documents address and need to include.

MATERIAL FACTS

Taking the underlined words on the screen ‘material facts’, the material facts are the allegations that are necessary for you to prove if you are to succeed in your case, they are the facts on which your case is won and lost. We will come to illustrate that definition with a practical example shortly. It would be useful to just hold that concept of material facts in your mind as we work through the material tonight.

An obvious point that I wanted to make at the outset is that your pleadings are not an outline of submissions, they are very different to the correspondence that is exchanged between solicitors before pleadings are drafted. Ordinarily, and I say ordinarily because of course there are some exceptions, you won't be referring to cases in your pleadings, you are not going to be making legal submissions about why your client ought to win. Of course, you want the court to pick up your pleading and read it and have an appreciation of why your client should win but the exercise is really a factual one and not a legal one. Before we move to an illustrative example of this concept of material facts in the context of an actual case, I will just ask Jayleigh if she has got any observations about what a pleading is, what it should do.

06:30

Jayleigh Sargent (JS): I do have a few but I have them in the context of the purpose of the pleading that I will talk about shortly.

EXAMPLE PLEADING – BREACH OF CONTRACT

OC: Let's race into an example then. This is a relatively, I hope, simple example. I am sure many people in the room have often been asked to draft a statement of claim for what is described to you as a simple breach of contract claim. In my experience, they are never simple or they very rarely are. If they appear simple it is likely because I am missing something. Nonetheless, I think we can use this sort of work example to illustrate the concept of what material facts are and how you can approach the task of pleading.

[Slide 5] If we start with the threshold question, in a breach of contract, when was a contract entered into? Is there a contract? What form is that contract? Is it oral or is it written? Has consideration passed between the parties? In some cases, and they are probably the lucky few cases, there is a written agreement and things are relatively simple but these are sort of threshold factual issues that you need to be thinking about at the outset of drawing your pleadings.

The next question that you would ask yourself is, what are the terms of that agreement? Specifically, what are the relevant terms of that agreement? Often, you will see statements of claim verbatim that reproduce the data, the terms of an agreement, or particular terms of an agreement, that might have been breached or are relevant. I think that is entirely appropriate. In other instances, you will see people plead to the effect of a clause and then particularise a reference to the clause. I think that is also, in some cases, an acceptable practice. But it is clear that one of the constitutive elements of a breach of contract claim is the terms of the contract. It is not enough to simply plead there was a contract, it was breached, I suffered loss. That does not permit the other side to know anything about what your case really is. Jayleigh is going to come to address what the purpose of pleadings is meant to achieve in a moment but I think that example makes it clear that there are some specific things that you need to be pleading out when you are addressing a breach of contract claim.

So, we have dealt with the existence of a contract, we have dealt with what the terms of the contract are. The next question you have got to ask yourself when you consider in a breach of contract claim is, what are the alleged breaches or the failures on the part of the defendant to perform the obligations under the contract? You need to, with specificity, identify what it is that you say the defendant has done that is in breach of the contract. At that stage, I think it is useful to be considering how you might prove that allegation. I am using this example to set up a few things that we are going to discuss later on this evening but I think it is important to keep in mind, with each allegation that you make, you are going to need to lead evidence to prove that allegation at the trial. That is something to keep in front of mind when you are specifying what the particular breach is and how you say the defendant has breached their obligation under the contract.

The final element, of course, as everyone in the room knows for a breach of contract claim is that you need to have suffered some loss. So, you need to address what loss it is that you say you have suffered as a result of the breach. I appreciate that is a pretty simple example and it is easy for me to sit here and use that example. I deliberately did it because it is Thursday afternoon and it is difficult to conceptualise complex examples but I think some of the questions that we raised in running through that example illustrate to you the complexity that can flow from what is a relatively simple legal cause of action. You can also see how the exercise of drawing the pleadings, when you are concerned with what the material facts are, that is, the particular elements of a breach of contract claim, will really focus your attention on the case that you need to make, the evidence that you need to gather from your client and the sort of facts associated with your claim that you are going to need to prove up at some stage.

I have hinted at what sort of a reaction you might hope to prompt on the other side and certainly when it comes time for the court to read your pleadings but Jayleigh is going to talk to you now about the function in a broader sense that pleadings are intended to achieve.

THE FUNCTION OF PLEADINGS

10:42

JS: Thank you, Ollie.

Sorry, I am going to keep running with the breach of contract example, just because I think it is easy to keep that streaming through. I think it is really critical from the very earliest stage when you are going to draft a pleading, and I am talking from the claimant’s perspective, from the plaintiff's perspective, to really step back and just ask, what is the purpose of this document? What am I actually trying to achieve for my client here and who is going to be reading it? So, if you bear those questions in mind, as I move through these functions on the slide a little bit.

STATING YOUR CASE

[Slide 6] The first is that the pleading must include all of the facts necessary to reveal to the other party what the case is that they need to meet at trial. This is a rule underpinned by the concept of procedural fairness and while it must be complied with technically, it is also a really good strategy. In my view, particularly for a claim, you really want to tell the other side and the judge what it is that you are claiming and how you are going to get that relief. Particularly for the defence, you want to do the opposite, you want to say why they are not going to get the relief. You want to avoid confusing or overly technical language because the reader is supposed to be in a position where they can look at the document, think “Oh, I might have a problem here”, particularly “My client might have a problem here”.

DEFINE THE ISSUES

So, with the contract example Ollie was referring to, if your case is that a contract was partly written, possibly oral, etc, you need to say that. If you just say there is a contract the other side is going to sit there and think “Okay, that's nice but my client said there's not, so I don't know what you want me to do about it”. Nine times out of ten, your document is going to the solicitor, it is going to the barrister, they are going to form views about exactly what you have written in the document, they are going to ask their client about the accuracy of what you have written, and they are going to ultimately advise their client about what they should do next. Should they settle? Should they get advice about strategy? Should they get advice on prospects? Or should they throw it in the bin because it does not even need a response? I will come back to that part but it is just really critical, I think, to bear in mind at the beginning, what it is you are wanting to do with this document, you do not just need to meet the technical pleading rules, you do not just need to put in there what your client’s instructions are, you really want the other side to be in a position where they are sitting there thinking “What do we do with this for our client?”

BASIS FOR THE COURT’S OPERATION

Once the pleadings have closed, the issues in dispute have been defined, that is important both pre-trial stages and evidence at trial. Your disclosure, as you know, is defined by the issues in dispute. So, if there is a matter that is admitted on the pleadings, no one needs to give disclosure about it, no one needs to leave evidence about that fact at trial. That is something to bear in mind when you are thinking of the purpose and the function because if you keep it simple enough then perhaps the defendant is less likely to be able to come up with the cogent basis to deny it. If your language is imprecise, you may find yourself exposed to a technical denial and then forced to prove a fact at trial that otherwise the parties really should not be accepting between them. That is why it is so important when you are doing this early stage to undertake those factual investigations before pleading. Sometimes you do not have much time but you need to think of the other side and think of pleading something that might be undeniable and spending the time framing it that way.

DETERMINING THE EFFECT OF THE JUDGMENT – RES JUDICATA

Another function is res judicata, or issue estoppel. It must be shown that the cause of action in the later proceeding is the same as that which was litigated in the former proceedings, this is substance over form. You need to really look at the facts that were pleaded to give rise to that cause of action. For example, where the same facts could have grounded both a claim in negligence and breach of contract, a judgment for either of that relief will preclude a subsequent action on the other. It is not just that you had breach of contract in the relief rather than negligence it is the underlying facts that are important. On that point, it is also important to bear in mind that I noticed that discontinuance does not enliven res judicata but then you have issues of abuse of process to keep in mind.

PARTIES BOUND BY PLEADINGS

[Slide 7] I will just talk a little bit about parties generally being bound by their pleadings at trial. This means that the relief that the party may be granted must be founded on the defence in the pleading. This is another rule which is based on procedural fairness. It is really important to keep this in mind when you are thinking about the strategy of the case at the beginning. It is ordinarily the case when you are drafting the statement of claim, the first version at least, of a statement of claim or the defence, that you do not have all of the necessary facts yet, you have often gotten something from the client and they received the claim perhaps twenty-three or twenty-four days ago. So, you need to make an informed decision in the time you have available about what might be the unknown facts and what might be revealed down the track. If most of the information is going to be in the other side's possession that will assist your case, you might need to plead something a bit more broad and particularise down the track after the interlocutory steps or disclosure. You might also want to keep a narrow case because your client might has things they do not want to have open to disclosure requirements, you won't want to put those facts in issue. So, remembering that you are bound by the pleadings, both at trial and interlocutory stages, is important for the forensic decisions that you make early on and also because if you are amending too many times, that might not send the right message, which is something we will touch on.

16:25

OC: Yeah, a fifth amended Statement of claim does not have the same credibility. The other thing I would say just on that point is that, obviously, you cannot plead things without a basis. What Jayleigh mentioned is that the commercial reality is that often you have really limited time, really limited instructions and you are told to put together a pleading. You have to have a basis for pleading things. In some cases that might require that you are inferring facts from disparate pieces of information that you say give rise to an inference but it is just important to note that you cannot plead things without a basis hoping that you will get a defence or some documents in discovery that will ultimately prove your case. That is something to keep in mind.

17:08

JS: It is better to take the time, in my view, to get it right the first time. If that means that you might be asking for an extension of time, hopefully short or, you know, obviously avoiding any sort of default judgment or something like that but if you can get the time take it and try to get your plan on board with perhaps spending that little bit of extra time and money on doing it right the first time because it will save a lot of pain down the track.

REQUIREMENTS OF STATEMENTS OF CLAIM & DEFENCES

[Slide 9] Justice Bond has quite simply there [on the slide] stated the requirements of both a statement of claim and defence. Those comments really, I think, create the boundaries of how you can strategise for your pleadings. By considering both the function and the technical requirements you can really develop a strategy on what you want to achieve.

STATEMENT OF CLAIM - EXAMPLE

If we think about it from a statement of claim perspective, how can you control what the other side's lawyers are going to tell their client? I think the important things to think of early on are putting together a pleading that shows you have invested time and money in properly pleading something. You investigated the facts, you have asked your client the right questions and you have put together a case that makes sense logically. I have a terrible example but bear with me. Say you got a pleading and the pleading says Ollie and Jayleigh made a contract. The material terms were that Jayleigh would wash Ollie’s car every day.

OC: Everyday?

JS: Everyday, it is filthy.

OC: What car must I be driving?

JS: Everydayfor a year and Ollie would pay Jayleigh a million dollars on the 365th day, on the 365th wash. So, Jayleigh washed the car three hundred and sixty-five times, I had nothing else on, and Ollie breached the contract by failing to pay the million dollars. Jayleigh suffered loss and damage of a million dollars and a few broken nails. You are acting for Ollie and you immediately think, was there a contract? How was it formed? You go and ask Ollie, is there anything in writing, was there a conversation? Did you ever speak to this person before? Did she wash your car? Ollie says “I have spoken to her before but I didn't sign anything. And I didn't think that she was serious. And I mean, she did wash my car sometimes, but she didn't do a very good job.”

OC: “She just liked washing my car.”

JS: Exactly. So, immediately you start crafting your response and you are thinking “We're going to deny there was a contract. We're going to deny performance. Maybe we're going to counterclaim because she scratched the car.” Your mind is going to all the places that there are holes in this case immediately, even if you might think it is not the worst case underneath it all but she has not pleaded it very well so we are going to make her life really hard. Technically, maybe that claim had enough information to meet the material facts threshold but strategically what you have done is set the plaintiff up for a very long journey of litigation, interlocutory applications and probably a terrible settlement.

What if the pleading instead said something like, Jayleigh was in the business of car cleaning, she had a car cleaning business called Jayleigh's Ferrari cleaning.

OC: I have a Ferrari?

JS: Olliewas in the business of trading Ferraris. On a precise date, Ollie called Jayleigh and said words to the effect “Do you clean Ferraris?” She said “Yes, this is my rate.” He said “Please go ahead.” Then she emailed him a quote and the quote had detailed information in it and Ollie replied but he just forgot and the lawyer did not ask the question. Anyway, we have pleaded this, he has replied and there is a beautiful piece of correspondence about that, that is all pleaded out. Then a contract was formed. When the statement of claim is served a copy of the quote and the email goes with it and maybe even some photos of the car being cleaned. I am being ambitious here but some actual information to support that there is a claim and some consideration to the fact that a contract was formed and that it was performed and that there was also some loss suffered.

I know, it is a silly example but just thinking from the perspective of the recipient of this statement of claim you get the first version and you just think “I'm gonna do all I can to make their lives harder now”. But if you get the second version and you think “Wow, Ollie you might actually have a legal issue here” and he sits back and says “Yeah, actually, my car's looking pretty clean.” It might not be that easy but I like to think it could be. By doing that, the plaintiff revealed they have done some real investigations, they have thought about how they are going to present their case. They have not just gone off and engaged a law firm to write a snarky letter and threatened indemnity costs. They have actually gone through the idea of figuring out the legal cause of action and if they have some evidence to support it. I think that is creating the impression on the other side's advisors, to give them the message you want to send, through the pleading, is a very, very important function of the pleading. Breaking it back down to just having technical and what you must plead and nothing more can, I think, sometimes not exactly achieve what you're looking for?

22:09

OS: So I think it is, I hesitate to say it is an art, but there is certainly some creativity that you can deploy and draw in drafting pleadings, and to what Jayleigh says, it is not only in the context of your pleading being filed in court and then being read by the judge on the first return date. I have seen draft pleadings used in negotiations and mediations as the opening position of a party. I think they can be a really valuable tool in that context, aside from the litigious context when you are in court, particularly when they are done in the way that Jayleigh has described, when they are more of a narrative form. They are also evidence of the fact that the party has turned their mind to the actual legal issues rather than being aggrieved, running off and filing something that is perhaps not as good as it could be.

22:57

JS: Yes. I would not suggest the words I actually said would be a good pleading.

OC: I think that is binding legal advice you have provided, sorry.

23:06

JS: But picking out some of those facts that reveal the consideration and some of them materials, information of the contract, so necessary.

23:16

ADVOCACY THROUGH PLEADINGS

OC: [Slide 9] Well, I think that is a good time to step into to how you can be a good advocate for your client through your pleadings. Jayleigh has provided a really helpful example. She is now going to address some other strategies that you might deploy to ensure that you are a good advocate through your pleadings,

UCPR – RULE 149

23:34

JS: [Slide 10] Yes. So, how you can actually plead the documents? Part of that is, although we are not going to get into too much of the rules, this rule, I think, is a very helpful reminder of what actually needs to go into the pleading, which can help you inform your strategy. So, you have got to tick off on all five of these. Then, at the same time, you can think about presenting your case and a lot of what I was saying before falls into those categories as well.

CLARITY & BREVITY

[Slide 11] I think these are my two favourite words when it comes to pleadings. At a minimum, the pleading should be abundantly clear about the cause of action relied upon by the plaintiff, the claims and any alternative hypothesis. The judge and the other party should never be scrutinising a pleading. There is nothing worse than reading a pleading and wondering why the fact is in there or what the cause of action is. Doing an exercise of textual construction to determine what the point of that particular paragraph is and whether you should strike it out or whether you should leave it there is painful. So, clarity and brevity are my favourite words. With brevity, if you can say the same thing with three less words, you should. If you can say something once, you should. Repeating facts is not going to persuade. As Ollie said earlier, pleading is not a submission. A pleading is really more like a framework of material facts, a checklist, what you have to touch on to satisfy all the elements to get your relief. If you keep it clear and brief the reader is more likely to understand how you are going to get there and how you are going to get that relief. [To OC] Are they also your favourite words?

25:13

OC: I certainly like those. I don't know that I describe them as my favourite but I absolutely agree with everything you have said. I think the clearer you are and the briefer and the simpler something is expressed the easier it is to understand. Ultimately, at the end of the day, you want the other side to understand what you are saying, you do not want to try and trick them or disguise facts or hide your cause of action because that is not going to get you where you need to be, which is winning the case. The simpler your pleading is, I think, the more compelling it is, in almost every case. There are some exceptions, of course, there are always exceptions.

25:45

JS: Yeah, you cannot help them. To point out, if you have a terrible defence, obviously, you are going to have a technical and unclear defence because you do not have any other option. Yeah,

26:00

Audience: On that last part on brevity and clarity and also the five requirements under that subsection. What do you say, obviously, we receive pleadings that are not necessarily compliant with subsection one of one?

OC: I don't believe that [laughs].

Audience: But you sit there for about 10-15+ minutes thinking, “what is going on here?” Sometimes there is not enough clarity that you can get a vibe for what they are getting at, especially if you have had detailed correspondence back and forth, maybe without prejudice mediations or [correspondence]. So, you could possibly go for a strike application but if there is some merit there then maybe the court would be less inclined to do it. How do you approach the situation between choosing between maybe a strike out application or sending letters back and forth trying to get to the bottom of it, or just pressing on with trial and being like “Okay, you're bad pleading is a matter for you” and that may be detrimental to…

27:03

OC: I hate hearing that in court “Your bad pleadings are a matter up to you”.

27:09

Audience: …or helping them amend their pleadings?

27:14

OC: Yeah, of course, of course. I think…

JS: I can say a few things if you want.

OC: I can say a few things and then Jayleigh will say some more intelligent things. There are a whole lot of commercial considerations that go into what your response is to a pleading that is subpar. Your client might have financial limitations that inform the decision that you ultimately make. That is probably the thing I would think about first. It is difficult to decide, often, between running a summary judgment point or striking the pleading out because if you think about a strike out, at the end of the day, assuming there is sufficient resources on the other side, there is just going to be a replead. You will be confronted with the same case but expressed in maybe a better way. Assuming, as you say, in this example, there is some merit to the claim maybe that is better because it confines the dispute somewhat and you have a better sense of what the parameters of discovery are going to be, for instance. Equally, I can see that in some cases there is merit in letting a party proceed on a court pleading, if you think that is in your client's interest but there are, I think, real difficulties with that course. I generally…It depends on the case that I am involved in but I would not generally adopt that course. I do not think that is the best way forward. [To Jayleigh] Do you have any other solutions?

28:40

JS: Yes, I think that I like to form a view on what I think their best case could be. If you are going to have them rewrite their pleading, what is that going to look like for you? Because there is the problem for you when you get to trial is that if they have a few broad background allegations that you are not really sure where they go or what the point of them are, or what the point of it is, you might expose yourself to your client getting cross examined on things that you say w[ere] not pleaded or not part of their case. Then they are like “Oh, it fits into this sort of messy allegation that no one did anything about”. Their case can kind of evolve at trial, if you did not confine them to a pleaded case that was a little bit more particular. You also run the risk of their case getting clearer and briefer and then liking their pleading. So, it is definitely, I think…What I think the first thing determining the prospects of their case before you do that is important because they have got a great case but they have articulated it poorly, you probably don't want to fix it. But if they do have a kind of bad case and it is still bad on the pleadings, maybe you do want to make their life harder and get them to redraft it.

29:49

OC: It is good question that you have asked. I think it is good question because I am going to be talking about anticipating what the other side might say when we come to some of the strategic approaches that you can employ.

JS: I think if it was easy we would not have jobs. So yeah, it is quite a hard one to answer because it really does depend on the case and the Silk because a lot of them have a really strong view about them.

PLEADING MATERIAL FACTS, NOT EVIDENCE

[Slide 12] Yes, material facts, not evidence. This often comes up when people say something like “Let the pleading tell the whole story”. In narrative style pleadings, and probably my example about the Ferrari earlier, where you are really giving a bit more of a story but that is often quite unhelpful advice because it is often perceived or used as tipping your client’s whole statement into the statement of claim. I just think this quote from Justice Jackson in the Mio Art decision, which is the one on here [on the slide] is really useful when he says, “But where a pleading alleges a lengthy historical account of facts that occurred over an extensive period of a commercial relationship, then particular specific causes of action have pleaded on the basis that the reader is invited to find the relevant material facts, for any of those causes of action in all that has gone before the price of the death of that hero, brevity is not paid in the valuable coin of precision. Instead, the reader is invited on a would be treasure hunt, with the unlikely satisfaction that after looking in every nook and cranny and trying every combination possible, there will be an Archimedean eureka moment.” I think the point of that long quote, in Justice Jackson's beautiful words, is that it is your job to pick the material facts, you need to pick them and put them in, you do not plead everything that you are going to get out of your client and you are going to lead out of your client in a trial. It is unlikely that all of that context is material, it might be helpful, it might be persuasive, it might be good for the judge to know it. That is why you might leave it out if the client but you do not need to plead it and you should not be leaving the judge or the other side to hunt through like a pig.

31:57

OC: A truffle pig?

JS: Yeah.

32:01

So yes, I like to think of the pleading as that sort of critical element checklist, rather than painting this long picture and story, which I think you do see a lot in negligence and personal injury-style claims. They can be persuasive and a lot of those claims do not actually go to trial, they are in a mediation. Having that precision early on can be useful. I think the best approach, and most common approach, is to really restrict it to the material facts. Again, as I was saying earlier, if you can reveal by your pleading that you have considered what those material facts are and you have picked them out strategically, that is really beneficial.

32:34

OC: I think the reality is that, in a lot of cases, it is difficult, it is hard to separate conceptually between material facts and evidence. As much as people say that it is simple task, but I find it quite difficult sometimes. I guess you can be reassured that it is a difficult task but it is something that repays deep thought and reflection when you are drafting the pleadings. That is something to keep in mind.

PRESENTATION OF PLEADINGS

Just on the point that Jayleigh raised earlier about particular types of cases lending themselves to particular types of approaches, we have a few observations about how you might present a pleading in a particular type of case in order to act as a good advocate for your client but comply with the rules.

DEFINED TERMS

33:18

JS: Did you want to touch on defined terms?

OC: Yeah, sure.

33:23

[Slide 13] I think everyone knows what a defined term is, a capitalised term that has a definition that is provided in the body of the document so you do not have to fully state what the concept is each time you are referring to that concept. Should have given myself a defined term for that one. I think they are really useful tools in pleadings because they shorten the document but equally you can use them to your benefit. I was reading a defamation pleading not that long ago where one of the parties who was alleged to have published the defamatory imputations, their initials were BS so the defined term for the imputations was the ‘BS imputations’. That is a bit of an acute example but I think that is an illustration of the way in which you can use an orthodox way of writing something, a defined term, to your strategic advantage in some ways.

34:19

JS: I remember when you told me that. After seeing fifty-seven times ‘BS imputations’ you would think “This is bullshit”.

ARTICULATING ADDITIONAL FACTS

I am going to steal a story for the additional facts from John McKenna [KC] because I was telling him about this presentation earlier today. He said that he presented a paper on the strategy of pleadings very early on in his career and he has permitted me to share this story. He said that at the presentation he was introduced by Justice Freiburg, as he then was, who opened and presented and shared a brief anecdote about a pleading that he was required to defend once. Justice Freiburg said he never liked narrative pleadings, he thought they were not useful. Material facts only. As an advocate, you do not need to waste time with a story. He said he turned over the first page of the statement claim, he was acting for an insurer in a personal injury case. The first paragraph read “1) At all times before the events you are about to read below, the plaintiff was a carpenter with two hands.” He said he just took a deep breath and thought “I'm not gonna be able to defend this one easily”. Obviously, there are lots of different facts about causation and things that are relevant to that but that starting as your first paragraph can be quite persuasive, a good piece of advocacy.

35:40

OC: You want to know what happened, did a hand go missing?

HEADINGS, TABLES OF CONTENTS & ANNEXURES

A less exciting tool that you can use are headings, tables and tables of contents and indexes to your pleading. That sort of stuff, I think, is a more modern approach to pleading. There was a time, I am told, when numbered paragraphs were not a thing, which seems extraordinary. I think that the easier your document is to navigate the more persuasive it can be. Those are some things that you can think about when you are drafting a pleading. If it is multiple pages and there are some different concepts and some different facts that relate to particular causes of action then you can use headings and you can use a table of contents, your document is not defective because it uses those things. Those are things that I use in pleadings that I do pretty routinely. Not every statement of claim requires a table of contents. Hopefully, if I have expressed things simply then it does not require a table of contents. Clarity and brevity. But they are easy things that you can use to make your document more persuasive.

36:53

JS: I still think that matching the paragraphs between the statement of claim and defences is a persuasive way to defend.

OC: Absolutely.

JS: I find nothing more annoying than having to flip back between…ruins your pleadings matrix.

37:05

OC: I assume everyone is aware of what Jayleigh is saying but for anyone who is not, often there is a practice, in a statement of claim where there are numbered paragraphs 1-10 and allegations 1-10, the defence might say “In paragraph one, the defendant denies the allegations in paragraphs 1-4”. Then paragraph two corresponds to paragraph five in the statement of claim which is fine but it does become difficult at times to keep track of everything. That is another strategic tool that you might want to deploy. My preference is to address each paragraph in line and deal with the allegations that way because it is cleaner and your pleadings matrix is much easier to navigate.

37:49

JS: By 174, that paragraph it is getting pretty tough.

37:53

OC: Yes, yes. Is there anything else you wanted to say about that?

JS: No.

PLEADINGS & ADVOCACY

ANTICIPATING DEFENCES

OC: [Slide 14] All right. The question you asked before about what to do when you think there might be a kernel of a case but it is buried in defective pleading. One difficulty that I often have when I am drafting pleadings, and something I find myself doing all the time, is thinking about the shortcomings in my client's case and the strong points in the other side's case. That might be because I have a pessimistic disposition but I think it is a pretty normal experience. You are often drawn to the strong points that the other side has against you and you are very aware of the weak points in your own client’s case. At least for the purposes of drafting a statement of claim, I think that you should not be anticipating what you expect the defence will be. Equally, in a defence, you should not be anticipating or inferring what it is that the other side is saying against you. I think you certainly need to be considering that sort of stuff but in your pleading, when it is reduced to writing, those are not things that you ordinarily will be addressing because they do not exist yet. You might have inferred what a defence might be or what a claim might be against you but until it is pleated it does not exist, it may have been raised in correspondence but until it is pleaded it is not something you need to answer.