Article from: https://legalvision.com.au/deficient-statement-of-claim/ 8th April 2023
Requirements Under the Uniform Civil Procedure Rules (UCPR)
The UCPR provide rules for the conduct of civil proceedings. It states that a pleading must include sufficient particulars. Including adequate particulars allows you to identify the case you must meet.
If the plaintiff fails to provide sufficient particulars to accompany their pleading, the court can order them to provide adequate particulars. If you receive a pleading with insufficient particulars, your lawyer will typically request further and better particulars.
Descriptiveness of Particulars
Particulars should meet a descriptiveness threshold by:
- clearly identifying the issues that the court proceedings will determine; and
- informing you of the case you must meet.
Ultimately, the case that the pleadings outline is the basis for the necessary evidence. Therefore, it is crucial for a pleading to be as detailed as possible.
The pleading should, at the very least, identify basic information. If a pleading refers to certain communication or a representation, it should demonstrate whether it was in writing, oral, implied or a combination of both.
If the plaintiff asserts that it was in writing, they should refer to the relevant document with sufficient clarity. For example, the document could be identified as a “document described as an IT services agreement dated 1 January 2018”.
If the plaintiff states that the communication or representation was oral, then the particulars should identify the:
- persons involved;
- location; and
- substance of each conversation that took place.
For example, the statement of claim could state that there was a “telephone conversation on 1 January 2018 between Jenny Black and Jane Smith discussing the timeline of the IT services agreement”.
If the plaintiff is making allegations of implied communications or representations, they should identify relevant facts. For example, the plaintiff could state: “In view of the defendant’s delay in providing instructions and system specifications across February 2018 and June 2018, and in the absence of a specific term in the IT services agreement, the defendant represented to the plaintiff that time for delivery of the product was not of the essence.”
What to Do When Faced With a Deficient Statement of Claim
If a pleading does not put you on notice of the issues in dispute and fails to provide further and better particulars, you may seek an order from the court to dismiss or strike out the pleadings.
Strike Out Application
A court may strike out a pleading or a part of a pleading if it is satisfied that, even if the allegations in the claim could be proven, they would not establish a cause of action or a proper defence. The court will not entirely dismiss the proceedings but may grant the plaintiff permission to amend their pleadings.
Summary Dismissal Application
If you apply for a dismissal of the pleadings, the court will look at more than just the pleadings. It will assess the evidence that both parties provide and whether the plaintiff’s claim has any prospects of success.
If there are prospects of success and there are deficiencies in the pleadings, the court will allow the plaintiff to amend their claim.
Key Takeaways
If you are served with a statement of claim, it is essential to seek legal advice before filing your defence. The claim may be deficient if it does not properly disclose the:
- issues;
- relevant facts;
- matters; and
- circumstances that give rise to the allegations in the claim.
If you receive a deficient statement of claim, filing a defence may jeopardise your position and prospects of success. You should first seek further and better particulars from the plaintiff. Failing that, you should apply for an order to strike out the pleadings or dismiss the claim entirely.