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Pleadings – form September 28, 2016

Bryson J in Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), Bryson J, 7 March 1995, unrep):

It is not fair to require a defendant to flesh out general expressions or indirect allusions by piecing together information in other documents such as affidavits or experts’ reports. He might get it wrong, and the greater the complexities are, the more probable it is that he will understand what is alleged in some different way to what the plaintiffs will rely on. Procedural justice can be upset just as much by opportunistic advocacy exploiting a choice among several possibilities as by an ambush from complete concealment. In the world of practicalities a defendant is unlikely to receive much protection when evidence is tendered which is an available meaning of a pleading if he has not attacked the pleading at an interlocutory stage.

A pleading is to contain and contain only a statement in summary form of the material facts on which the party relies but not the evidence by which those facts are to be proved; see Pt15 R7(1). It is also to contain the necessary particulars of any claim; see Pt16 R1(1); including particulars of any fraud, misrepresentation, condition of mind including fraudulent intention, and of any negligence: see Pt16 R2, 3 and 4. A pleading should be brief and should state the effect of documents or spoken word referred to, and should plead specifically matter which may take the defendant by surprise. See Pt15 R8, 9 and 13. Of course the requirement for particularity extends to all causes of action including causes of action in contract. The more complex the circumstances and legal principles, the more important it is to allege the material facts fully with particularity…

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