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Preparing your litigation claim without legal advice is fraught with danger!

On 18 September 2015, in the case of Perera v Genworth Financial Mortgage Insurance Pty Ltd t/a Genworth [2015] NSWSC 1357, the Supreme Court of NSW struck out the Plaintiff’s Statement of Claim.

The Plaintiff was unrepresented.

This case serves as another important reminder that, when it comes to litigation, proper care must always be taken to draft one’s pleadings.

Before we explain the above case however, we should introduce some litigation concepts.

What are pleadings anyway?

Pleadings, simply put, are formal written statements that the parties must file with the court when suing someone or taking someone to court (ie litigation).

In the case of the Plaintiff (the initiator of the claim), the pleadings are a Statement of Claim or a Summons, perhaps accompanied by a Statement of Particulars.

In the case of the Defendant(s), the pleadings are a Defence.

Another type of pleading is a Cross-Claim or Cross-Summons, where, for example, if there are multiple defendants, the defendants might start “blaming” each other by lodging a cross-claim against another defendant.

Yet another type of pleading is a Reply to a Defence.

How are pleadings drafted?

This is not an easy question to answer, as even lawyers have their own unique style, and will agree to disagree on the topic, of drafting pleadings!!

However, of course, certain standards need to be maintained so there is a whole body of law dedicated to this subject, some of which can be found in Part 14 of the Uniform Civil Procedure Rules 2005 (NSW).

In short, pleadings should be brief and contain facts that will be alleged at the trial or hearing.

Another way of describing them is asking “What exact facts do I need to prove to win my case?” The answers to that question will go a long way (if not, all the way) into determining what the pleadings are.

However, pleadings must be clearly expressed and logically flow from start to finish. It is also wise not to include unnecessary facts in one’s pleadings.

So what happened in Perera’s case?

In Perera, one of the main reasons why Justice Slattery struck out the pleadings was because they had a “tendency to cause prejudice, embarrassment or delay in the proceedings” and were ”either frivolous, vexatious or disclose[d] no reasonable cause of action”.

Justice Slattery also made this comment:

There is no point in allowing Mr Perera any more time to repair his pleadings. He has already had 9 months to seek pro bono assistance and to amend his Statement of Claim. His failure to develop a maintainable pleading within that time compels the conclusion that there is no point in giving him any further time. The proceedings should be struck out now.

We do not intend to analyse the whole decision but certain aspects of Perera will be discussed.

“No reasonable cause of action”

Justice Slattery found that part of the Plaintiff’s Statement of Claim disclosed no reasonable cause of action. Here is an excerpt of what the Plaintiff pleaded in relation to that:

18A.   Defendant has a duty to the plaintiff to not to claim ‘The Bankstown Property’ valuation negligent. Defendant owed plaintiff a duty of care to ensure that any negligent claim made against a valuation conducted by plaintiff has merit as such claim become part of the plaintiff’s history and has an adverse effect on plaintiff’s career.

.. 21.   Defendant also engage internal valuers and defendant should have made reasonable enquiries to find out whether the Bankstown valuation is negligent or not before making a negligent claim. Defendant breached the duty to the plaintiff by failing to take reasonable care.

Apart from the poor grammar and the difficulty in deciphering the meaning of the pleadings, the Plaintiff was alleging that the Defendant owed him a duty of care on the apparent basis that one litigant in proceedings owes a duty of care to another litigant in the proceedings.

Justice Slattery rejected this proposition as there was no case law to support this argument.

Defamation pleadings were also not properly drafted

The plaintiff alleged that the defendant published a letter which defamed the plaintiff.

Justice Slattery found that the alleged defamatory matter did not identify the plaintiff at all – and neither did the pleadings specify how this was the case.

In other words, the plaintiff didn’t make clear in his pleadings how exactly the letter defamed him specifically!

Claim for nervous shock

The plaintiff also sued the defendant on the basis that an allegedly threatening phone call made to the plaintiff by a property services leader of the defendant (‘the leader’) caused him to suffer nervous shock.

The pleadings were deficient as they did not identify (amongst other things):

  1. if the leader was in the employment of the defendant;
  2. if the alleged phone conversation took place during the course of the leader’s employment by the defendant; or
  3. how the defendant was responsible for the conduct of the leader’s alleged behaviour.

Conclusion

Details can mean the difference between winning and losing in litigation.

Properly setting out your claim is critical.

We highly recommend that you obtain legal advice before commencing any journey in litigation. For starters, any trip to the court room – especially alone – would be daunting, and having the support of legal representatives is invaluable.

And as Perera’s case demonstrates, it is far better to delegate the anxieties associated with drafting a set of pleadings to your lawyers than doing it yourself!!

 

By Andre Lim, Solicitor.

McAuley Hawach Lawyers

Telephone: (02) 9633 1826

Email: reception@mcauleyhawach.com.au

 

This case summary or article is not legal advice. Every case is different. We strongly recommend that you obtain legal advice regarding your particular circumstances.

 

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

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