https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2026/22.html#_Ref223681247

The pleadings are to contain a summary of the material facts, not the evidence by which those facts are to be proved: UCPR, r 14.7. Material facts should be pleaded, not merely identified in the particulars. Doing so can also be to the plaintiff’s strategic advantage. A defendant need not plead to particulars: Pinson v Lloyds & National Provincial Foreign Bank Ltd [1941] 2 KB 72 at 75. Including all material facts in the pleadings requires the defendant to engage directly with the account presented by the plaintiff, which may limit the points in dispute. A statement of claim operates as a form of notice to admit facts.

The pleadings are to be as brief as the nature of the case allows: UCPR, r 14.8. This requirement does not relieve the pleader of the obligation to provide clear notice of the case being made. The pleadings are to include any matter that, if not pleaded specifically, may take the defendant by surprise: UCPR, r 14.14(1). The notion of “trial by ambush” is anathema: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 at [28][32], [40]-[46].

The pleadings are to give all particulars of the claim necessary to enable the other party to identify the case that it must meet: UCPR, r 15.1. Particulars limit the generality of the pleaded material facts by defining the issues to be tried and enabling the parties to know what evidence it will be necessary to have available: Bailey v Commissioner of Taxation (Cth) [1977] HCA 11; (1977) 136 CLR 214 at 219, 227-229; [1977] HCA 11. A pleading alleging negligence must give particulars which state the facts and circumstances on which the party pleading relies as constituting the negligent act or omission, and if multiple negligent acts or omissions are alleged, those facts and circumstances must be stated separately: UCPR, r 15.5(1).

A pleading may be embarrassing if the pleading simply pleads a legal conclusion drawn from unstated facts or expressed at too high a level of generality: Resolution Life Australasia Limited v AMP Limited [2025] NSWCA 21 at [56] and [59]-[61].

A prospective plaintiff is required to have a reasonable basis for a claim before they file a proceeding in a court asserting the claim. The plaintiff is required to plead a specific set of allegations to define the bounds within which the court will then order discovery, permit subpoenas to be issued and the like. The filing of a statement of claim should not be regarded as merely the first step in discovering whether a cause of action exists, where the real complaint will be identified after subpoenas have issued or discovery has taken place or such like. That is to put the cart before the horse. The point has long been recognised: see eg Zierenberg and Wife v Labouchere [1893] 2 QB 183; Yorkshire Provident Life Assurance Co v Gilbert & Rivington [1895] 2 QB 148 at 151-152. If a plaintiff “does not, after advice, know whether he has got a cause of action or not and his pleader cannot discern one, the pleader is not for that reason entitled to plead badly”: Pinson at 75-76.

The foundational requirement to have a proper basis for making a claim is manifest in a number of legal principles:

(1) As noted, one of the purposes of pleadings is to identify what issues are in dispute such that the proper scope of discovery, and other evidence-gathering mechanisms, can be determined. Identification of the issues delineates evidence-gathering, not the other way around.

This is a case where a bare allegation is made by par. 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the [respondent] and ransack his documents in the hope of making a case. That is mere fishing.

(3) The allegations made in a filed pleading are covered by privilege. That privilege must not be abused. Solicitors and barristers must not allege any matter of fact in any court document unless they believe on reasonable grounds that the factual material already available provides a proper basis to do so: Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 21.3; Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 64.

Pleading duty of care: https://www.notion.so/Pleading-32253c42d65d80879899f74f779566b8?v=11e53c42d65d83368299885da046114d&source=copy_link