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Pleadings
PLEADINGS are court forms, which a litigant prepares and files in the court registry, and serves on the other parties to litigation, which set out the essential facts that the party relies upon to establish the remedies that they want from the Court (Magistrates' court, Intermediate (district/county) court, Supreme court). The Plaintiff "pleads" that by reason of certain facts, they want money and/or other remedies and/or costs. The Defendant "pleads" that by reason of their truthful denials, and other certain facts, they want the Claim dismissed, and their defence costs paid, and perhaps other remedies.
In recent decades, superior courts have often pronounced that "trial by ambush" no longer happens. Both the Plaintiff and the Defendant should reveal, in their pleadings, exactly what their case is going to be -- the main facts they intend to establish, the allegations of the other side which they intend to disprove, and any principle of law which would take the other side by surpise if not pleaded.
Pleadings include documents more particularly known as Summonses, Statements of Claim, Defences (or Notices of Grounds of Defence), Cross Claims, Replies, and Third Party Notices.
Often an opposing party will complain that a particular pleading does not set out "the nature of the case that we are expected to meet", and will request more details of particular paragraphs of the pleading - such a request is generally known as a "request for particulars". There are many Court decisions and Rules of Court requiring that "proper articulars" of a pleading should be provided.
Court Rules in all jurisdictions generally provide that a party shall provide all such particulars as are reasonably necessary to notify the other party of the case they must meet. This generally applies to Defences, as much as to Statements of Claim.
Additionally, each party has the right to serve a subpoena to produce documents (or a Notice to Produce Documents) on the other party. DocDownload publishes some templates of subpoenas.
Finally, courts normally direct that the primary evidence of each party be served on the other party in writing before hearing. This writing normally takes the form of an affidavit, or a witness statement, and sometimes a "tender bundle" (of documents). DocDownload also publishes a guide to drafting affidavits, which also applies to witness statements.
The word "pleading" is generally NOT applicable to documents filed in Appeal Courts. The documents filed by the opposing parties are usually known as a Notice of Grounds of Appeal, and a Response, or Reply.
DocDownload publishes some statements of claim, and a pro-forma Notice of Grounds of Defence.
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Choose a template:
*Request (from Defendant) For Particulars SOC Goods Sold&Del
Free. Defendant's request for particulars of a contract which the Plaintiff pleads in the statement of claim L-DD9050E (Suing For Goods Sold And Delivered). The Defendant does not have perfect records of how much has been delivered, and invoiced, and paid for. The Defendant does not have 100% faith in the Plaintiff's accounting system. So the Defendant requests particulars of the claim, including documents. In general, when a pleading mentions a document, the other party is entitled to see it; so the Defendant asks to see the invoices that the Plaintiff sues upon. The Defendant also asks for other documents. The Defendant objects to the Plaintiff's claim for interest. Perhaps the Plaintiff was a bit rash in starting proceedings, when the Plaintiff’s invoices or other communications allowed time for payment. Therefore the Defendant seeks particulars of when any "demands for payment" were made. [L-DD9050E-Particulars]
Cross claim - Licensed builder for work performed on site
Statement of Claim by a licensed builder or tradesman for fees for work at a commercial site. This precedent is for commercial building work only. (Note: For commercial building work, the Home Building Act, which requires residential building contracts and variations to be in writing, does not apply.) (Note: Cross Claims look like Statements of Claim, except that the “Defendant” claims about the “Plaintiff”, and demands a remedy from the Plaintiff.) (L-SOCLicensedBuilder)
Defendant’s Offer to Settle - “Calderbank Offer”
A Plaintiff might sue you for $50K in circumstances where you admit that you owe $20K, but no more.
If you are a Defendant in these circumstances, you might dig your heels in and "refuse to pay a cent" until proceedings are finished. Unfortunately, at the end of the case, the judge might order you to pay the twenty thousand dollars, PLUS another $20K in costs. It was very expensive to defend that case.
To reduce the risk of orders for COSTS, you can an offer to pay the $20K, in an offer that is confidential until the end of proceedings. If the Plaintiff gets less than your settlement offer, you can then tender your offer and say:
The Plaintiff should have accepted my offer. By refusing my offer, the Plaintiff wasted the Court’s time, and incurred unnecessary legal costs, and inflicted costs upon me for no good reason. The Plaintiff should pay ALL MY COSTS, since the date of my offer”.
This sort of offer is known as a “Calderbank Offer”.
In Berrigan Shire Council v Ballerini (No 2) [2006] VSCA 65 the Victorian Court of Appeal judge Callaway JA said: “The correct approach is to treat the rejection of a Calderbank offer as a matter to which the Court of Appeal should have regard when considering whether to order indemnity costs. In the end the question is whether the offeree’s failure to accept the offer, in all the circumstances, warrants departure from the ordinary rules as to costs. The test to be applied is whether the rejection of the offer was unreasonable in the circumstances.”
Make your offer “reasonable” – a generous compromise. It doesn’t hurt to add some explanation as to why the Plaintiff should take the money and run, before costs escalate further.
Here is a template which you might adapt to your own proceedings. [L-DD9118E]
Statement of claim - Defence to the statement of claim
The Defendant should state what is admitted, what is not admitted or in dispute, and what the Defendant says is their positive defence, if any, to the whole of the Statement of Claim. The Defendant might also file a cross claim. (L-DSOC1)
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