We are excited to welcome new author Fiona Cameron to our Victorian Courts service!
Fiona is a barrister at the Victorian Bar, practising primarily in commercial and administrative law. Prior to joining the Bar, Fiona was an associate at both the Victorian Supreme Court and the Federal Court of Australia, and was previously employed by Crawford Legal, a boutique commercial and construction law firm. Fiona is also currently a reporter for the Federal Law Reports and a tutor in Monash University’s LLB program. Fiona is joining our General Editor, Gerard Nash QC, and author John Leung, to drive content enhancements to Victorian Courts.
In next month’s release, subscribers can expect to see Fiona’s rewritten chapters on orders 4 and 13 of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules). Fiona takes us through her commentary on proceedings and pleadings.
Read on for what she has to say on the topic.
Pleadings and the Civil Procedure Act 2010 (Vic)
After a tentative start, the Victorian Supreme Court and Court of Appeal have in recent times started applying the Civil Procedure Act 2010 (Vic) (CPA) more readily in proceedings where parties and their representatives have failed to promote the “overarching purpose” of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute.
The CPA applies to parties to a civil proceeding and their lawyers from the moment that a proceeding is commenced, however even before any documents have been filed practitioners will need to keep in mind the requirements of the CPA and the way in which they might apply to a party’s preliminary steps before filing, and particularly to pleadings, to avoid possible consequences later on.
Chief amongst the requirements to be considered at the pre-filing stage of litigation is the requirement that no claim be made without a proper basis (s 18). This is reinforced by the need for a Proper Basis Certificate to be filed by a party’s legal practitioner along with the first substantive document filed by that party in the proceeding (see CPA, s 42 and O 4 of the Rules).
So what is a proper basis?
For an allegation in a pleading, it is a reasonable belief as to the truth of that allegation. For a denial, it is a reasonable belief of the untruth of the allegation that is to be denied, and a non-admission must proceed from a state of information whereby the practitioner does not know whether the relevant allegation is true or not (see s 42(3)).
What does this mean from a practical perspective?
This means that in drafting a pleading a practitioner must have available to them instructions or information which enables them to form a positive belief on reasonable grounds that the allegations being made (or denied) are either true, untrue, or indeterminate, as the case may be. Absent this information, as observed by Harper J (as his Honour then was) in Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd  VSC 77 at , albeit pre-CPA, “it is generally true to say that it ought not to proceed beyond the point at which the party pleading appreciates, perhaps because the very act of pleading reveals it, that there is and will remain a gap in the evidence upon which the cause of action or defence is based and without which that cause of action or defence will fail”.
Other requirements that practitioners need to keep in mind include the obligations to ensure that the issues in dispute are narrowed wherever possible (s 23), that costs incurred are reasonable and proportionate to the (real) issues in dispute (s 24), and that delays are minimised (s 25).
How do these impact on the way in which a pleading should be prepared?
The role played by concise, clear pleadings that comply with the Rules (see O 13) in assisting the courts to achieve the CPA’s overarching purpose cannot be under-emphasised. Indeed, one only needs to look at the cost and delay consequences of a pleading that prompts applications for strike out or summary judgment, or fights over particulars, to understand the importance of good pleadings to case management. Likewise, a pleading which obfuscates the real issues in dispute by taking up every vaguely possible cause of action or defence goes no way to furthering the overarching purpose, and the courts have expressed an invariably dim view of such an approach to pleading (see for example Wheelahan v City of Casey (No 12)  VSC 316).
On the other hand, and as noted by Vickery J in SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd (No 2)  VSC 492 at , a well-drawn pleading which meets the requirements both as to content and form under O 13 and as to proper basis under the CPA will serve to further the overarching purpose of the Act, and make for a quicker, more cost-effective run to mediation and/or trial.
But what if the deficiencies aren’t in your pleading, but the other side’s?
Practitioners should keep in mind the obligation to cooperate (s 20), and provisions such as r 13.11 of the Rules (which encourages parties to seek particulars by written request before reverting to an application to the court), and bring any deficiencies to the attention of the other side as soon as practicable to facilitate their resolution as quickly and inexpensively as possible.
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