 Puts the other side to proof on the fact.
PLEADINGS
 SCR 46A.02: All pleadings must:
 (a) be as brief as the nature of the case permits;
 (b) plead only the material facts relied upon, and not the
evidence or arguments by which they are to be proved.
 [put the other party on fair notice – tell a story that is
complete – paint a complete picture of what happened]
Statement of claim
 SCR 46A.03: The SoC must plead, but plead only:
 (a) the material facts relied upon to constitute any cause
of action (or grounds for an extension of time or other
relief sought);
 (b) further material facts necessary to give other parties
fair notice of the case which they will have to answer;
 (c) the general nature of the legal causes of action;
 (d) any statutory provisions relied upon; and
 (e) the general nature of the relief sought.
 SCR 46A.04: In an action where damages for personal
injuries are claimed, in addition:
 (b) the Pl must plead, but plead only:
 (i) the general nature of the injuries suffered;
 (ii) the general nature of the major treatment
received;
 (iii) the general nature of any resulting disabilities;
 (iv) the general effect, if any of the injuries and
disabilities on the Pl’s capacity to work; and
 (v) the general effect of the injuries & disabilities on
the Pl’s activities which would give rise to damages
for economic & non-economic loss;
 (c) the Pl is not to plead the history of the treatment,
items of special damage, or topics which will be covered
by the Affidavit of Loss.
Defence
 SCR 46A.05(2): The Defence must plead, but plead only:
 (a) what parts of the SoC are admitted;
 (b) the material facts relied upon to constitute any ground
of defence on which the Def bears an evidentiary/legal
onus of proof; [alternative version of events]
 (c) further material facts necessary to give other parties
fair notice of the Def’s case which they will have to meet;
 (d) any defences in law; and
 (e) any statutory provisions to be relied upon by the Def.
 SCR 46A.08: If an allegation of fact in a pleading is not
admitted by the opposing party, it [is taken to be denied &]
must be proved at trial by the party alleging it.
 So in relation to each fact asserted by Pl in the SoC, the Def
can:
 Admit the asserted fact.
 Other side doesn’t have to prove it.
 Judge will take it as given.
 Admit the asserted fact and allege further facts which
throw new light on the fact.
 (be careful not to argue law)
 Deny the asserted fact without pleading an alternative
version of facts. (SCR 46A says that you deny by saying
nothing)
 Puts the Pl to proof on the fact.
 Def may not later raise evidence to establish an
alternative version of facts, nor cross-examine the Pl
on the alternative version of facts. (SCR 46A.10)
 Deny the asserted fact and plead an alternative version of
events.
 Def may cross examine witnesses, or adduce
evidence, about the alternative version of facts at
trial.
 Under new rules, Def cannot:
 Deny a fact (SCR 46A.05); or
 Not admit a fact [like in Williams v ATC] (SCR 46A.05)
 SCR 46A.15: If a party unreasonably fails to admit a fact later
proven at trial, it may be ordered to pay the costs incurred in
proving that fact.
Strategies
 If Def thinks there is an alternative event, Def should specify
it. Otherwise, if don’t specify the alternative event, Def cannot
raise evidence to establish it at trial without amendment (SCR
46A.10).
 If Def thinks the Pl’s allegation is correct, Def should admit it.
Otherwise there is a deemed denial  Def may be liable for
cost penalty in unreasonably forcing Pl to prove it (SCR
46A.15).
 If Def does not know whether Pl’s allegation is correct or
wrong, Def should only deny (by saying nothing) if it has
some doubt about the allegation. This is because if the denial
is unreasonable, the Def may be liable for a costs penalty
(SCR 46A.15).
Defences in Law (separate heading in Defence)
 Contributory Negligence: If the Pl negligently contributed to
the occurrence of his accident/injury, Def’s liability is reduced
to the extent that Pl contributed to his injury.
 Failure to Mitigate: If the Pl failed to take reasonable action
to mitigate his loss after the occurrence of the Def’s action
complained of, Def’s liability is reduced.
 Limitation of Actions.
CRITIQUING
 Fact?
 Material fact? (relevant to CoA/defence, or is necessary
to give complete picture of what happened & fair notice?)
 Sufficiently particular? (fair notice?)
 Too specific? (unnecessary detail)
 Evidence?
 Law?
Also, are there missing material facts?
Materiality (relevant to CoA/defence or complete story)
 Material facts must be pleaded.
 Facts which support a CoA/defence are material.
 Ask: Is the fact relevant to an element of the
CoA/defence? Or has nothing to do with (no bearing on)
it?
 Even if a fact does not support a CoA/defence, it might still be
material if it is necessary to paint a complete picture of what
happened. (& puts other side on notice)
 Ask: Is the fact necessary to paint a complete picture of
what happened? (the purpose of pleadings = to tell a story
about what happened, and what the consequences are)
Particularity
 The pleaded facts must be sufficiently specific to give the
other party fair notice of the case made against him, and allow
him to properly answer the allegation.
 Arthur Young v Tieco Int (SoC said “Def failed to properly do
X”  did not give Def fair notice)
  When alleging Def failed to comply with a standard, must
specify what the standards are or what act the Def failed
to do, and what act Def did which shows the
inappropriateness of the action.
 Status & standing of opposing party (eg. expertise &
resources to investigate the allegations) is irrelevant to
adequacy of a pleading.
 Lutze v Westpac
 But don’t miss out a fact by being too specific.
 Water Board v Moustakas (Pl pleaded that he was hit in
the 1st lane, & couldn’t later raise evidence to prove that
he was hit in the 2nd lane)
Evidence
 Facts which are evidence should not be pleaded.
 Blake v Albion LAS; Dependable Upholstery; East West
Airlines v Cth:
 If a fact is relied upon to demonstrate what happened
(eg. demonstrate breach of duty), it is properly
described as a fact.
 If a fact tends to prove an allegation, rather than
make up the events that surround that allegation, it is
properly described as evidence.
 Ask: Does the fact describe what happened? ( fact)
 Does the fact tend to prove something? Does it show? Is
it a reason why something happened? Does it explain? Is
it phrased as someone’s observation? ( evidence)
 Even if a fact is evidence, might still plead it if it is necessary
to give the other party fair notice of what to expect.
Law
 North Western Salt v Electrolytic Alkali; Neptune Oil v
Fowler: Cannot plead legal discussion/argument. [it’s for
judge to decide]
 Ask: Does the statement talk about a fact, or a general
concept/conclusion?
 SCR 46A: But legal causes of action or defences must be
pleaded (although not discussed).
 [Can allege conclusions of law (eg. ‘Def is negligent’) to
help explain the significance of the facts.]
 [Don’t plead elements of the CoA/defence.]
Rules of Professional Conduct (SA)
 PCR 14: A practitioner must:
 1. not knowingly make a misleading statement to a court;
and
 2. take all necessary steps to correct any misleading
statement made by the practitioner to a court.
 PCR 16.3: A practitioner must not allege a fact which he does
not believe on reasonable grounds to be supported by
evidence.
Consequences of not pleading a relevant fact
 SCR 46A.10: If a party fails to plead a material fact, the court
may preclude the party from cross examining witnesses, or
adducing evidence, about that fact at trial – if it would be
likely to prejudice or embarrass other parties’ cases.
 Bank Commerciale v Akhil Holdings (Pl failed to plead
that the bank was fraudulent, & couldn’t later adduce
evidence that it was fraudulent)
 Banque Commerciale v Akhil Holdings: A court may allow
non-pleaded material to be raised at trial, if:
 the parties’ conduct clearly shows that both knew &
anticipated that those matters were part of the case; and
 neither are prejudiced.
 O’Keefe v Aust Trencher: Failure to object to
defective/inadequate pleadings may be treated as
acquiescence.
Response to Defective SoC
Application for further particulars
 SCR 46A.09(1): Where the SoC is deficient such that the
material facts pleaded do not disclose facts sufficient to give
the Def fair notice of the Pl’s case, and the Def would be
significantly prejudiced, the Def may apply to the Court for an
order that the Pl supply further material facts (prior to filing a
Defence).
 The court is unlikely to order Pl to supply further facts unless
the degree of particularity in the SoC is so bad that the Def
cannot answer the case properly (eg. like in Arthur Young v
Tieco).
Application to strike out
 SCR 46.18: A pleading may be struck out if it:
 (a) discloses no reasonable CoA/defence; (eg. Lutze)
 (b) does not comply with the rules of pleading; (eg.
Arthur Young)
 (c) tends to cause prejudice/embarrassment/delay in the
proceedings;
 (d) is scandalous/frivolous/vexatious;
 (e) is otherwise an abuse of process of the court.
 Lutze v Westpac: Can seek to strike out a defective pleading
without first seeking a more explicit pleading.
 Lindon v Cth No. 2: If a party has not pleaded their CoA
properly, the court usually allows an opportunity to amend.
 Drummond-Jackson v British Medical Assoc: If the case is
merely weak, but not impossible, the pleading will not be
struck out.
 *Pl doctor claimed Def defamed him.
 *Def applied for an order that the action be struck out on
grounds that the SoC disclosed no reasonable cause of
action.
 Not possible to say, having regard to only the SoC, that
the pleaded cause of action had no chance of success 
SoC should not be struck out in a summary way.
 Brooking v Maudslay: A pleading is scandalous if it contains
unnecessary material which is indecent/offensive and has no
relevance to any issues in the action.
 *Pl in SoC stated that he “did not proceed further … with
the charges … as to concealment and non-communication
by the Defs of material facts”.
 The allegation was unnecessary (b/c Def said would seek
no remedy) & affected Def’s honour  scandalous &
embarrassing  strike out all allegations of concealment
or non-communication of material facts by Defs.
 Other Examples:
 Pl raises in pleadings a matter already dealt with by a
court (contra to res judicata or issue estoppel) 
pleadings struck out for abuse of process, or causing
embarrassment.
 Nonsense cases that cannot be remedied by amendment
 pleadings struck out for abuse of process, or causing
embarrassment.
 O’Keefe v Aust Trencher: There is a presumption that failure
to object to a defective pleading constitutes waiver of the
irregularity  irregularities must be identified & raised
promptly.