PLEADINGS - judge, and - purpose of - as advocacy - as communication - rules of - drafting - solicitors, and - barristers, and - "material facts" - gathering evidence -surprise - embarrassment - fair trial, and - striking out - professional constraints on - verification of.
This article seeks to explain how the court rules and professional rules governing pleading can be better understood if one understands the actual circumstances in which pleadings are used, for what purposes they are used, and the harm that can come from their abuse.
Often pleading is approached as a set of rules. And there are expressly laid down sets of rules about pleading. In fact, there are two different types of rules about pleadings - those contained in the rules of various courts, and those that set out standards for proper professional conduct. Each of these types of rules is important. Indeed, any practical question about a pleading will ultimately be decided by reference to these rules. However, I would like to look at pleading from a different perspective, namely from the role that pleading plays in the process of dispute resolution by litigation. What I hope to achieve by doing this is to help you better understand the rules themselves, by appreciating the circumstances in which pleadings are used, the purposes they achieve, and the harm that can come from their abuse.
Understanding the purpose of pleadings is not an optional extra: many of the rules concerning pleadings are cast in language which has purposive concepts built into it, so that they only make sense if you understand how pleadings operate in practice and what purposes they seek to achieve. I give some specific examples of rules which have purposive concepts built into them later in this paper.
PLEADINGS AND THE JUDGE
Let me start with where pleadings fit into the way that a Judge goes about deciding a case. The pleadings are often the first documents concerning a case that a judge reads. In the Federal Court of Australia, where there is an individual docket system, cases are allocated to a judge very soon after proceedings are started. So at the time of the first directions hearing in the Federal Court, the only documents that the judge will have available to read, to let him or her know what the case is about, are the pleadings. In the Supreme Court of New South Wales, files are allocated to a trial judge at a time when much of the pre-trail preparation has been done, but just the same, the judge to whom a file is allocated will often choose to read the pleadings first, to find out what the case is about.
The judge refers to the pleadings in the course of the trial, for the purpose of deciding whether evidence is admissible - for it is by reference to the pleadings that the issues in the case are identified, and an item of evidence is relevant only if it can affect whether a fact in issue really exists,.
(While parties can choose to disregard the pleadings and fight issues at the trial which are not raised by the pleadings, this is an undesirable practice, and anyone approaching a trial would be foolish to rely on being able to run a case that is not clearly set out in the pleadings.)
Pleadings are sometimes referred to in the course of address, as the party who propounded a pleading seeks to demonstrate to the judge that the case set out in a pleading has been made out, or as the opposing advocate seeks to demonstrate that what has actually been proved falls short of the case which had been pleaded.
Finally, the judge, in the course of writing the judgment, frequently goes back to the pleadings to find a clear articulation of the allegations which have been made on either side.
The rule whereby if a pleading alleges or otherwise deals with several matters, the pleading shall be divided into paragraphs, and each matter shall, so far as convenient, be put in a separate paragraph, looks to be quite a mechanical rule, but its purpose arises from the way in which pleadings are used in practice to identify issues. A judge or a practitioner coming to a pleading should be able to write against any paragraph in a statement of claim whether the allegation in it is admitted, not admitted, or denied. It is common, for those actually using pleadings in practice, to annotate a pleading to show whether the allegations in it are admitted, denied, not admitted, or the subject of some special pleading - that is how you identify what the issues are. If, in relation to a paragraph in a pleading, one finds that part of it is admitted, while part of it is not, that is often (though not always) because there has been a breach of this rule.
PLEADINGS AS ADVOCACY
Because a pleading is used in these various ways by a judge, repeatedly and at all stages of the litigation process, it operates, in some respects, as a piece of advocacy. A statement of claim is a document which should be able to provide an answer to the judge's ultimate question to the advocate for a party, "why should your client win?". Likewise, a statement of defence should provide an answer to the judge's ultimate question to the advocate for a defendant "why should your client win?", or "why should the other side's win be limited?". In preparing the pleading, the same qualities are needed as are needed for good advocacy - a clear understanding of legal principle is needed so that all the material facts necessary to justify a remedy are pleaded, and only those facts. Clarity of expression in English is needed to make it clearly understood. Making the pleading as brief as the nature of the case permits also assists in it being understood and being persuasive. For these reasons, among others, it is not an accident that pleading has traditionally been performed by advocates.
THE SOLICITOR'S ROLE IN PLEADING
None of this is to say that solicitors should not draw pleadings. Solicitors can, and do, act as advocates in the court. There are some lawyers - and some solicitors will be among them - that are good at analysis and at expressing themselves on paper, but who do not like oral advocacy. Conversely, there are some barristers who draft pleadings which fail to show a clear understanding of legal principle, clarity of expression and brevity. Sometimes, a client's resources are such that he or she can only afford to employ one lawyer. My point in making the remarks I have so far to this audience is to dispel any notion there might be, that pleading is some sort of an unimportant preliminary to getting a trial on. It is not. From the judge's perspective, a pleading is a most important document.
Further, the effect of a pleading being inadequate can be very serious for the client. At worst, a defective pleading can mean a case is lost which could have been won. Short of that disaster, an inadequate pleading can cause expense and delay as the lawyers argue about whether the pleading is adequate or not, and about whether amendments should be allowed.
Every solicitor conducting a piece of litigation needs to decide whether he or she will do the pleadings himself or herself, or whether that task will be referred to the Bar. Even if the solicitor decides to refer the task to the Bar, there is still an important choice to be made about which barrister will be briefed. The counsel who is good at drawing pleadings is not necessarily the same counsel who you would choose to run the case - just as the counsel who you would use to run a trial is not necessarily the same counsel you would choose to run an appeal. Even if the solicitor decides to brief a member of the Bar to draft pleadings, that decision about who to brief is a very important one, and requires the solicitor making the decision to have a good grasp on the role which pleadings play, as well as a knowledge of the strengths and weaknesses of the skills of the barristers proposed to be briefed.
PLEADING AND PREPARATION OF YOUR OWN CASE
The need to articulate one's case in a pleading operates as a constant discipline on the lawyers who are running a case:
* The need for producing a proper pleading requires them to think, at an early stage, about what it is that they need to allege and prove.
* As a case advances in preparation, the pleadings need to be reconsidered from time to time. Sometimes, this reconsideration will result in the need to amend the pleadings. For example, if new counsel come into a case, that counsel might be of the view that there is a cause of action, or defence, available which has not been pleaded, and which should be. Sometimes new facts emerge - for example, following discovery - which suggests that the case you've actually got is different to the case that you thought you had. If the difference is sufficiently fundamental, that might result in a need to amend pleadings at that stage. One of the reasons why the courts are comparatively liberal in allowing amendment of pleadings (if it can be done without injustice to the other party) is that it is recognised that a pleading needs to be articulated at an early stage of preparation of a case, that the pleading is very important for articulating the case which the party wishes to present, and that, in the course of preparation of the case, the way in which a party wishes to present its case might change.
* The pleadings are an important document for communication within one's own legal camp. Whenever a new lawyer comes into a case which is already under way, that lawyer will often go to the pleadings at an early stage to understand the case.
The court rules require the pleader to set out only, in summary form, a statement of the material facts on which he relies, but not the evidence by which those facts are to be proved.
The material facts are the ones which matter. And any classification of things into those which matter, and those which do not matter, is dependent upon understanding the purpose for which things of that type are supposed to matter. Thus, this rule, which looks at first sight to set out some sort of objective criterion, has a strong purposive element in it.
The New South Wales Court of Appeal has recently stated that:
"(1) "Material" means material to the claim, that is, to the cause or causes of action which are relied on.
(2) The requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract.
(3) The general requirement to avoid surprise means that material facts must be stated in such a way that a defendant can understand the materiality of the fact, that is, how they are material to a cause of action."
The Full Federal Court has recently said:
"The requirement imposed by FCR O 11, r 2, that a pleading contain a statement in summary form of the material facts on which the party relies, is to be understood by reference to the functions of pleadings. Thus it is a well-established rule that the permitted level of generality of a pleading must depend on the general subject matter and on what is required to convey to the opposite party the case that is to be met: Ratcliffe v Evans  2 QB 524 (CA). For example, in some circumstances, it may be permissible to plead a conclusion rather than the material facts underlying the conclusion: Kernel Holdings Pty Ltd v Rothmans of Pall Mall Australia Pty Ltd (Fed C of A, French J, 3 September 1991, unreported); Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 (Drummond J) at 42,829."
How do you go about finding what are the material facts which need to be pleaded? Unless you have an encyclopaedic knowledge of the law, or the case you are pleading is a very simple and routine one, you need to go to one or more reference sources. This might be a book of pleading precedents like Bullen and Leake, a textbook which identifies the elements of a cause of action, or an encyclopaedic work like Halsbury which seeks to distil the principles of law applicable in a particular area. If a case is not a routine one it is often necessary to go to the law reports to study the reasons judges have given for why it is that a particular plaintiff has succeeded, or has failed. If you record in writing the research done at the time of preparing a pleading, that can often be a useful quarry of information when the time comes to run the case, particularly for the purposes of making submissions.
A statement of claim contains both a statement of material facts, and a statement of the relief which is sought. It is part of the obligation to plead all material facts that the pleading should allege the facts which show there has been a legal wrong, and also allege any facts which justify the grant of the particular remedy which is claimed. For instance, if you are pleading a case where there is a breach of contract, and you want a remedy of an account of profits, you need to plead the facts which justify that particular remedy - this might be that there is also a breach of fiduciary obligation, or facts which show that there has also been an abuse of obligations of confidence attached to information, or (more controversially) circumstances which justify the imposition of a constructive trust. If you are suing a defaulting debtor, and want interest to accrue on the judgment at a special rate that the debtor has agreed to, you need to include in the body of the pleading the contractual term where the debtor agreed to pay that special rate, and in the prayers for relief a claim for interest at that same rate.
One important benefit for the pleader of a statement of claim, in pleading all material facts, is that the defendant must state, in his defence, whether each of those facts is admitted, denied, or not admitted. If a fact which is really material is not pleaded, but is merely included in some particulars, the defendant need not respond to that allegation at all. There is considerable benefit for a plaintiff in requiring a defendant to respond expressly and one by one to all of the material allegations in the plaintiff's case.
Pleading and evidence gathering
The need to draw a pleading also guides a lawyer in the process of collecting evidence, and preparing witness statements. The statement of material facts in a draft pleading, or in the sort of legal sources you would turn to to identify what are the elements of a cause of action or defence, will provide a checklist against which you can measure the facts you can actually prove. If there is a material fact which you need to be able to include in a properly pleaded case, but which you cannot prove at all, that is a hole in your case. If there is a material fact which you cannot prove very well or very convincingly, that is a weakness in your case. Once a hole or weakness is discovered, this in turn lets the lawyer preparing the case either set about getting more evidence, or making more enquiries to enable the holes to be plugged or the weaknesses to be shored up. You do this either by asking your client whether there is a part of the story that he or she hasn't told you, or by yourself setting out to discover from some other source whether the facts exist. It also lets the pleader advise the client about the strength of the case. I remember occasions at the Bar where the advice I gave a client was, "I can't draw a proper pleading on the strength of what you've told me."
PLEADINGS AND YOUR OPPONENT
Another function of the pleading is to be a communication to your opponent. Your pleading needs to let your opponent know what your complaint is, or what your defence is. When I say "your opponent", I mean by that, both the client on the other side, and the lawyers on the other side.
One purpose of a pleading doing this is that "it is a basic requirement of procedural fairness that a party have the opportunity of meeting the case against him or her". Another purpose of letting your opponent know your case is that if you proceed on the basis that the opposing lawyers understand the law, and can see whether the allegations in the statement of claim amount to a good cause of action, or provide grounds for a particular remedy, your pleading can, at best, convince them that you will probably win, and so you will be able to settle the case. That is very successful advocacy indeed. Short of that, a good pleading can significantly narrow the matters that are in dispute between the parties. It can also give a defendant an understanding of the case which allows it to make a payment into court, or an offer of compromise.
The rule which requires that you plead any matter which might take your opponent by surprise, has a role to play concerning how pleadings work as a communication with your opponent. This is not just a rule which is directed at surprise in the course of the actual conduct of a case in court, and designed to avoid unnecessary adjournments if your opponent finds it is not in a position to meet the case you are actually making. As well, it is a rule which is designed to ensure that your real position is understood by your opponent, so that your opponent can sensibly assess its prospects in the litigation.
Another rule allows a pleading to be struck out if it is embarrassing. Just as the rule about surprise is concerned with the effect that a pleading has on your opponent, so the rule about a pleading not being embarrassing deals with the effect that the pleading is likely to have on your opponent. One of the purposes of that rule is, like the rule requiring pleading of any matter which might take your opponent by surprise, to let your opponent know what your case really is. But there are other purposes too.
When a lawyer says that an allegation in a statement of claim is embarrassing, the lawyer is not using the most common meaning of "embarrassing" - he or she does not mean that the pleading alleges something unpleasant or discreditable which the defendant would much rather have not been said. Rather, the meaning of "embarrassment" which is relevant here is like the use that is involved in saying someone is financially embarrassed when they have a debt which they are obliged to pay but cannot pay. In the sense relevant to pleading, embarrassment is the situation which a defendant is in when it is under an obligation under the court rules to file a defence, but cannot do so because of deficiencies in the statement of claim, or when the pleading does not make clear the case which the opposite party must be ready to meet. In the words of Cotton LJ in Philipps v Philipps:
"It is absolutely essential that the pleading, not be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they will have to meet when the case comes on for trial."
The case law explains what is meant by "embarrassing" through examples. It would be impossible to give an exhaustive list, but ways in which a statement of claim can be embarrassing include:
* if it leaves the defendant in a situation of not knowing what evidence he ought to file in order to meet it, or if it contains statements which are irrelevant to the relief sought;
* if its language is so general that it is not clear what is being alleged;
* if it "leaves obscure the facts said to give rise to the duty of care and the content of the duty of care";
* if it makes an allegation which could found a liability in the defendant only if taken in conjunction with some other fact which is not pleaded;
* if it uses terminology in a way which is not consistent, and it is not clear which of two or more possible meanings of a word is intended by a particular allegation;
* if it "leaves the accused in a position of material prejudice, derived from the incapacity to know with clarity what case is to be met";
* if it makes allegations against several defendants, and it is not clear what allegation is made against which defendant;
* if a duty of some particular legal type is alleged to exist without a statement of the facts by virtue of which it exists;
* if it pleads matter in anticipation of a particular defence being raised, when that matter should be reserved for pleading in the reply when, and if, that defence is raised;
* if an allegation "is a prediction rather than an allegation of fact and is thus not capable of admission or denial by the defendants";
* if it uses imprecise and inappropriate language; or
* if it is "poorly expressed and ... confusing", or "susceptible to various meanings".
When pleading in the alternative becomes embarrassing
A plaintiff may plead two or more inconsistent sets of material facts and claim relief concerning them in the alternative, and may rely upon several different rights alternatively, although they may be inconsistent. However, there are limits on when this can be done, arising from the notion of when a pleading is embarrassing. One is that whenever alternative cases are alleged, the facts relating to those cases should be stated separately, and should not be mixed together, so as to show on what specific facts each alternative cause of action is based. Another is that allegations of facts in the alternative cannot be made where one of those sets of facts must be known to the party pleading to be false. Such a pleading is embarrassing and will be struck out.
Embarrassing a fair trial
One of the senses of "embarrassing" which is involved in this rule is that a pleading embarrasses the fair trial of the action. It is on the basis that the pleading embarrasses the fair trial of the action that a court will often not be prepared to engage in a job of careful dissection of a statement of claim, to separate the good from the bad, if it is shown to contain some elements which should be struck out. The response of the court to a pleading which is partly good and partly bad will depend on the particular pleading. But there is a well established practice that, although some cause of action might be able to be gleaned from the statement of claim, if there is a failure to plead material facts or there is confusion in the pleading which has a tendency to cause prejudice, embarrassment and delay in the proceedings, or if there are good claims in a statement of claim, which are so intertwined with bad ones that a fair trial on the basis of the statement of claim would be impossible, the whole of the statement of claim is struck out.
Striking Out Pleadings
If a pleading is served which does not allege a cause of action, or a defence, which is available as a matter of law, the party on whom it is served can move to strike it out. There are many important analyses of the law that have taken place in court on a motion to strike out a pleading, or on its procedural predecessor, demurrer. Well-known examples are Donoghue v Stevenson  AC 562, and Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628;  AC 793. The dispute that is being decided on a strike out motion, is whether the allegations made in the pleading allege a cause of action which is known to the law, or found a claim for remedy in a way known to the law, or state a defence known to the law.
That a statement of claim, or a defence, can be struck out in whole or part, is useful for the efficiency of the court system, in that it can prevent hopeless claims or hopeless defences from going to trial. But it is also quite useful for the parties. If, at a comparatively early stage of the litigation process, they know that a particular claim or defence is not available, that knowledge reduces the scope of uncertainty about the whole litigation, and increases the prospect that the whole of the litigation will settle.
There are tactical considerations in a lawyer deciding whether to run a strike out application. There is often no point in doing so, if any defect in the pleading can be cured. To run a strike out application in those circumstances is just to give your opponent a tutorial on how to run his or her case. Sometimes, though, if a pleading has a deficiency which cannot be cured, it can be a very effective way to end the litigation. Sometimes also, if the pleading is such a mess that you really don't understand what the case you are called on to meet is, and efforts to resolve the inadequacies of the pleading through correspondence with the other side, or calling to talk to them, have failed, you need to take a motion to strike out. Here, the notion of a pleading being embarrassing comes in.
If you are contemplating taking a strike out motion, it is important to try and sort out the difficulties you have with the pleading with the other side, before approaching the court. Part of the reason is that the court does not appreciate being asked to decide this sort of dispute if no attempt has been made to sort it out informally - it really can be a waste of the court's time. As well, you owe it to your opponent as a matter of professional courtesy to try and sort it out. The allegation you are making, when taking a strike out application is, fundamentally, that the opposing pleader is a lawyer who has made an error of law in the pleading. Now there can be differences of opinion between competent lawyers about what allegations make a sustainable pleading, and what do not, but not all strike out claims fall within this area of legitimate difference of opinion. If what you allege is an elementary error in failing to plead an element of a cause of action, or the basis for a remedy claimed, you really should talk to your opponent about it before you go to court on a strike out. You also owe it to your client and yourself not to bring a strike out motion without having endeavoured to resolve the problem with the other side. If a pleading problem which could readily have been cured by discussion is brought to court, the court may well make an order that the person who failed to have the discussion pay the costs.
PROFESSIONAL CONSTRAINTS ON PLEADING
There are now many rules which impose professional constraints on pleading, some coming from the Bar Association and the Law Society, some from the rules of court. Though they are numerous, they have two objectives in common. One is to ensure that the very significant power which lawyers have to make detrimental allegations about someone under cover of court proceedings is used responsibly. The other is to do with time and money. Anyone called on to meet an allegation in litigation is virtually compelled to spend time and money in doing so. An order for costs at the end of the proceedings does not provide a full indemnity for all the time and money involved. These rules try to ensure people are not compelled to expend their own resources in this way unless there is a good reason.
The New South Wales Barristers' Rules contain the following:
"36 A barrister must not allege any matter of fact in:
(a) any court document settled by the barrister
unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so.
37 A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:
(a) available material by which the allegation could be supported provides a proper basis for it; and
(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
39 A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which Rules 36 and 37 apply, as a reasonable ground for holding the belief required by those rules..."
Rules in identical terms to Bar Rules 36 and 37 appear as Rules A36 and A37 in the Revised Professional Conduct and Practice Rules 1995 of the Law Society of New South Wales. The Law Society Rules also contain Rule A39, which is an analogue of Bar Rule 39, but which applies in circumstances where the practitioner who draws the pleading is instructed by another practitioner. This has the effect that when a solicitor drafts a pleading for his own client, he has a somewhat more onerous obligation than does the barrister (or solicitor advocate) who drafts a pleading on instructions from a solicitor - the solicitor who prepares a pleading for his own client cannot rely on the view of anyone else about whether there are reasonable grounds for an allegation made in the pleading. When a solicitor is called on to give instructions to a barrister, or to another solicitor who is drafting a pleading, under Rule 39 or Rule A39, the solicitor would, of course, be subject to constraints of professional propriety in expressing the opinion that the material available to him gives reasonable ground for holding the belief required by Rules 36 and 37, and A36 and A37.
These rules do not require the pleader to prejudge the client's case. However, without me trying to expound the full scope of the rules, they do prevent a pleader from making allegations which are just wishful thinking, or otherwise without a proper factual basis.
For many (but not all) types of pleadings, Part 15 Rule 23 of the Supreme Court Rules (NSW) requires the pleading to be verified. (There is no corresponding Rule under the Federal Court Rules or the rules of any other State or Territory Supreme Court, but it is comfortably within the powers of the Federal or Supreme Court judge, in giving directions, to order that a pleading be verified in a particular piece of litigation.) The affidavit which makes this verification, is required to state:
"(i) as to any allegations of fact which the pleading traverses by a denial - that the deponent believes that the allegations are untrue;
(ii) as to any allegations of fact which the pleading traverses by statements of non-admission - that, having made reasonable enquiries, the deponent does not know that the allegations are true;
(iii) as to any allegations of fact in the pleading - that the deponent believes that the allegations are true."
It is, broadly, the client who must swear this affidavit. However, the solicitor who arranges for the client to swear the affidavit has the same responsibilities concerning the affidavit which verifies a pleading as he or she has concerning any other affidavit which a client or witness swears under his or her supervision. These include not allowing the client to swear an affidavit the solicitor knows is false, or which the solicitor knows will create a misleading impression. As well, there is the responsibility of the solicitor under Rule 17.2 of the Revised Professional Conduct and Practice Rules 1995, which says:
17.2 A practitioner must not draw an affidavit alleging criminality, fraud, or other serious misconduct unless the practitioner believes on reasonable grounds that:
17.2.1 factual material already available to the practitioner provides a proper basis for the allegation;
17.2.2 the allegation will be material and admissible in the case, as to an issue or as to credit; and
17.2.3 the client wishes the allegation to be made after having been advised of the seriousness of the allegation.
If the pleading alleges criminality, fraud, or other serious misconduct, then the affidavit verifying the pleading comes under this Rule. These responsibilities of the solicitor concerning the affidavit verifying a pleading, apply even if the pleading itself was drafted by a barrister, or by another solicitor.
And a solicitor has an ongoing responsibility, in relation to the accuracy of an affidavit verifying a pleading, under Rule 17.1:
17.1 If a practitioner is:
17.1.2 informed by a client that an affidavit, of the client, filed by the practitioner, is false in a material particular;
and the client will not ... allow the practitioner to correct the false evidence; the practitioner must, on reasonable notice, terminate the retainer and, without disclosing the reasons to the court, give notice of the practitioner's withdrawal from the proceedings.
The Federal Court has a pleading rule (Order 11, rule 1A), which is not mirrored in the NSW rules, whereby a pleading must set out the name of the person who prepared the pleading, and include a statement by the person that the person prepared the pleading. This is a very useful Rule for maintaining the quality of pleadings - after all, what practitioner wants to be advertised as being the author of a pleading which is sloppy or incompetent?
A further practical limitation on pleading arises from Part 15A of the NSW rules, introduced at the beginning of the year 2000. (There is no corresponding provision in the Federal Court or in any of the State or Territory Supreme Courts.) That Part requires a party to make allegations of fact in a pleading only when it is reasonable to do so, and to put in issue that allegation of fact in a pleading only when it is reasonable to do so. In the course of final submissions, any party can request the judge or master hearing the case to make a finding that there has been a breach of this obligation, and to issue a certificate that there has been a breach of it. If such a certificate issues, Part 52A rule 11A enables the court to take into account, when making a costs order, any non-compliance with Part 15A rule 1. Further, if a certificate is issued under Part 15A, the party in whose favour the certificate is issued, is entitled to have costs of the issue to which the certificate relates on an indemnity basis, unless the court otherwise orders.
A final constraint is the requirement under section 198L Legal Profession Act 1987 (NSW) whereby:
"(2) A solicitor or barrister cannot file originating process or a defence on a claim for damages unless the solicitor or barrister certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success."
The critical expressions in this subsection are defined in section 198J:
"(2) A fact is provable only if the solicitor or barrister reasonably believes that the material then available to him or her provides a proper basis for alleging that fact.
(4) A claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim. A defence has reasonable prospects of success if there are reasonable prospects of the defence defeating the claim or leading to a reduction in the damages recovered on the claim."
If a solicitor or barrister provides legal services on a claim for damages, or defence of such a claim, without reasonably believing on the basis of provable facts and a reasonably arguable view of the law that the claim or defence has reasonable prospects of success, this can count as professional misconduct or unsatisfactory professional conduct. Further, costs orders can be made against legal practitioners who provide legal services to a party without reasonable prospects of success.
1 By the Hon J C Campbell, Judge of the Supreme Court of New South Wales. This is a revised version of a lecture delivered under the auspices of the Law Society of New South Wales on 3 March 2004 in the lectures called The Judges' Series. I am grateful to Mr Donald Mitchell for assistance with research.
2 Miller v Cameron and Others (1936) 54 CLR 572 at 576-7; Dare v Pulham (1982) 148 CLR 658 at 664
3 Section 55 Evidence Act 1995 (Cth) and (NSW)
4 Particulars are also referred to for the purpose of deciding questions of admissibility, because particulars can further limit the issues which are to be tried and the nature of the case which a litigant presents.
5 Dare v Pulham (1982) 148 CLR 658 at 664; Miller v Cameron and Others (1936) 54 CLR 572 at 576-7, 580, 582
6 London Passenger Transport Board v Mosscrop  AC 332 at 340, 347, 351, 356
7 Federal Court Rules ("FCR") O 11, r 1; High Court Rules ("HCR") O 20, r 4(2); Australian Capital Territory Supreme Court Rules ("ACT") O 23, r 4(1); New South Wales Supreme Court Rules ("NSW") Pt 15, r 6; Northern Territory Supreme Court Rules ("NT") r 13.01(1)(d); Queensland Uniform Civil Procedure Rules ("Qld") r 146(1)(f); South Australia Supreme Court Rules ("SA") r 46A.02(c); Tasmania Supreme Court Rules ("Tas") r 227(2); Victoria Rules of the Supreme Court ("Vic") Ch I r 13.01(2); Western Australia Rules of the Supreme Court ("WA") 0 20, r 7(2)
8 This is the first of the examples of pleading rules which have purposive concepts built in
9 FCR O 11, r 3; HCR O 20, r 2(4); ACT O 23, r 2; NSW Pt 15, r 8; Qld r 149(1)(a); SA r 46A.02(a); Tas r 227(1)(a); WA O 20, r 8(1). In the Northern Territory and Victoria the rules only extend so far as to require that pleadings be in summary form: NT r 13.02(1)(a); Vic Ch I, r 13.02(1)(a)
10 This is the second of the examples of pleading rules which have purposive concepts built in
11 Davy v Garrett (1878) 7 Ch D 473; Rassam v Budge  1 QB 571; Murray v Epsom Local Board  1 Ch 35
12 FCR O 11, r 2; HCR O 20, r 4(1); ACT O 23, r 4(1); NSW Pt 15, r 7; NT r 13.02(1)(a); Qld r 149(1)(b); SA r 46A.02(b); Tas r 227(1)(b); Vic Ch I, r 13.02(1)(a); WA 0 20, r 8(1)
13 This is the third of the examples of pleading rules that have purposive concepts built in
14 Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135 at 142-143
15 Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487 at 
16 Bullen and Leake and Jacob's Precedents of Pleading, 15th ed, Sweet & Maxwell, London, 2004
17 Halsbury's Laws of Australia, Butterworths, Sydney
18 Though in the Federal Court it is done by incorporating by reference the relief claimed in the Application.
19 Town & Country Property Management Services Pty Ltd v Kaltoum  NSWSC 166 at -
20 Per Mason CJ and Gaudron J, Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 290. See also Gould and Birbeck and Bacon and Another v Mt Oxide Mines Limited (in liquidation) and Others (1916) 22 CLR 490 at 517; Dare v Pulham (1982) 148 CLR 658 at 664
21 Dare v Pulham (1982) 148 CLR 658 at 664
22 FCR O 11, r 10(b); HCR O 20, r 16(b); ACT O 23, r 15; NSW Pt 15, r 13; NT r 13.07(1)(b); Qld rr 149(1)(c), 155(4); SA r 46A.03(b); Tas r 251(b); Vic Ch I, r 13.07(1)(b); WA O 20, r 9(1)(b)
23 This is the fourth of the examples of pleading rules which have purposive concepts built in
24 FCR O 11, r 16(b); HCR O 20, r 29; ACT O 23, r 28; NSW Pt 15, r 26; NT r 23.02(c); SA r 46A.18(c); Vic Ch I, r 23.02(c); WA O 20, r 19(1)(c). Queensland and Tasmania contain similar provisions: Qld r 171(1); Tas r 258(1)
25 This is the fifth of the examples of pleading rules which have purposive concepts built in
26 (1878) 4 QBD 127 at 139
27 Davy v Garrett (1877) 7 Ch D 473 at 483, 486, 488; In re W R Wilcocks & Co Ltd  1 Ch 163 at 166-167.
28 Tsatsoulis v Westpac Banking Corp  NSWSC 193 (Rolfe J, 15 March 1999) at , 
29 Agius v State of New South Wales (2002) Aust Torts Reports 81-656;  NSWCA 371 at .
30 Re Modular Furniture Pty Ltd (1981) 5 ACLR 463 at 466
31 Garden Mews-St Leonards Pty Ltd v Butler Pollnow Pty Ltd (No.2) (1984) 9 ACLR 91 at 93
32 Chew v R (1991) 5 ACSR 473 at 550 (WA Full Court)
33 State of South Australia v Peat Marwick Mitchell & Co (1997) 24 ACSR 231 at 255
34 Charlton v Baber (2003) 47 ACSR 31 at 
35 Church Of Scientology v Woodward (1980) 31 ALR 609 at 623
36 East-West Airlines (Operations) Ltd v Commonwealth Of Australia (1983) 49 ALR 323 at 325
37 McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at , 
38 McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 
39 Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR ¶41-43 at 40,889; Bright v Femcare Ltd (2000) 175 ALR 50 at 
40 Phillips v Phillips (1878) 4 QBD 127 at 134; Re Morgan (1887) 35 Ch D 492; Delfino v Trevis (No 1)  NSWR 191 at 196
41 Davy v Garrett (1878) 7 Ch D 473 at 489
42 Brailsford v Tobie (1889) 10 ALT 194; Issitch v Worrell (2000) 172 ALR 586 at 
43 Bride v Stewart (18 January 1990, Fed C of A, French J, unreported) at 8-9
44 Commonwealth Industrial Gases Ltd v Top Australia Ltd (16 April 1993, Fed C of A, O'Loughlin J, unreported) at 20; Leaney v Olmstead Pty Ltd (1994) 51 FCR 240 (Fed C of A, Branson J)
45 Coe v Commonwealth (1979) 24 ALR 118 at 132; (1979) 53 ALJR 403 at 409, per Jacobs J; Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 at 87-8; (1974) 3 ALR 491, per Menzies J; Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 92 ALR 395 at 413; (1990) 22 FCR 305
46 The rules extracted in this section are identical to those contained in Rules 36, 37 and 39 of the Australian Bar Association Model Rules 2002 and the Northern Territory Bar Association Barristers' Conduct Rules. Similar, although not identical, provisions appear in the Bar rules of all the other State and Territory Bar associations: Rules 35 and 36 The Australian Capital Territory Barristers Rules; Rules 37 and 38 Bar Association of Queensland 2004 Barristers Rules; Rule 29 Tasmanian Bar Association Professional Conduct Guidelines; Rules 32 and 34 The Victorian Bar Inc Practice Rules; Rules 35 and 36 The Western Australian Bar Association (Inc) Conduct Rules
47 Pt 15, r 23(4)(b). But see also Pt 15, r23(6)
48 Myers v Elman  AC 282 at 292-293
49 In Re Thom (1918) 18 SR (NSW) 70
50 This is reflected in Rule 16.2 of the Law Council of Australia's Model Rules of Professional Conduct and Practice ("Law Council Model Rules")
51 A similar provision is contained in Rule 15.1 of the Law Council Model Rules
52 The other State and Territory Supreme Court Rules have provisions that are somewhat similar to FCR O 11, r 1A: ACT O 23, r 4A; NT r 13.01(2); Qld r 146(1)(g); SA r 46A.02(e); Tas r 226(c); Vic Ch I, r 13.01(3); WA O 20, r 7(5)
53 Similar, although not identical, provisions appear in s90A Industrial Relations Act 1996 (NSW); Pt 14.2 Civil Law (Wrongs) Act 2002 (ACT); and Pt VIA, Div 3, Subdiv G Workplace Relations Act 1996 (Cth)
54 Sections 198J(1), (5), 198L(1).
55 Section 198M