Plaintiff v Defendant

Plaintiff v Defendant - [2013] VSC 316 - VSC 2013 case summary — Zoe

[51]

(a) Order 13 of the Rules set out the relevant requirements of a sufficient pleading, while r 23.02 provides the grounds on which the sufficiency of a pleading may be impugned;

(b) the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;[5]

(c) the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence).[6] The expression 'material facts' is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;[7]

(d) as a corollary, the pleading must be presented in an intelligible form - it must not be vague or ambiguous or inconsistent.[8] Thus a pleading is 'embarrassing' within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;

(e) the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;[9]

(f) pleadings, when well-drawn, serve the overarching purpose of the Civil Procedure Act 2010 (Vic);[10]

(g) a pleading which contains unnecessary or irrelevant allegations may be embarrassing - for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;[11]

(h) it is not sufficient to simply plead a conclusion from unstated facts.[12] In this instance, the pleading is embarrassing;

(i) every pleading must contain in a summary form a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));

(j) the effect of any document or purport of any conversation, if material, must be pleaded as briefly as possible, and the precise words of the document or the conversation must not be pleaded unless the words are themselves material (r 13.03);[13]

(k) particulars are not intended to fill gaps in a deficient pleading. Rather, they are intended to meet a separate requirement - namely, to fill in the picture of the plaintiff's cause of action (or defendant's defence) with information sufficiently detailed to put the other party on guard as to the case that must be met.[14] An object and function of particulars is to limit the generality of a pleading and thereby limit and define the issues to be tried;[15]

(l) a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;[16]

(m) extensive cross-referencing of facts in a pleading may render parts of the pleading unintelligible;[17]

(n) in an application under r 23.02, the court will only look at the pleading itself and the documents referred to in the pleading;[18]

(o) the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown;[19] and

(p) if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.[20]

[112]

(a) It does not identify Casey's acts or omissions that constitute a breach of a relevant licence condition, legislative provision or term of the waste disposal agreement, except by reference to paragraphs 150-168, to which I shall return.

(b) Notwithstanding that paragraph 143 alleges that there was a breach of the waste disposal agreement, no breach of a particular term is identified in the pleading. The separate particulars do not identify any term of the waste disposal agreement that was breached, but in any event will be struck out. Further, the pleading does not link any relevant conduct with particular licence conditions, legislative provisions or terms of the waste disposal agreement.

(c) Notably, there are no particulars of the 'wilful or negligent' character of any breach, offending r 13.10(3).

(d) The pleading does not identify any causal link between the relevant alleged breaches on the one hand and, on the other hand, the costs, losses or damages in respect of which Casey is disentitled from claiming by the clause 4.3 carve-out proviso.

(e) No such linkage is found in the separate particulars, had they stood. Section VIII purported to provide particulars of the failure to observe or comply alleged in paragraph 143. What Section VIII sets out is limited to sections of the EPA, a Works Approval, a Planning Permit, an EPA licence, and Pollution Abatement Notices that presumably constitute conditions or requirements to be observed or complied with. Section VIII incorporates a reference to Section T of the pleading, which is supported by 100 pages of the separate particulars in Section VII, dealing with factual matters relating to:

(i) the decision not to line the Stevensons Road landfill;

(ii) the design, construction and operation of the leachate collection system;

(iii) the aquifer;

(iv) the construction and operation of an effective landfill gas collection system;

(v) daily, intermediate and final cover; and

(vi) monitoring for gas and leachate.

[141]

(a) First, the paragraph alleges that breach is said to arise 'by reason of the matters alleged below'. There are 38 paragraphs over 15 pages of the pleading below paragraph 142. It is not for the reader to attempt to discern what matters 'below' are relied on. I agree.

(b) Second, the allegation that Casey failed to comply with 'all' conditions and requirements of the licence and permits in so far as it was able to do so is unnecessarily broad and fails to define the real issues, forcing the reader to the particulars to identify the allegation being made. When the reader goes to the separate particulars, the respects in which Casey had the capacity or ability to ensure compliance with the licence and permits is first alleged and followed by a discursive history of contracts for the management of the Stevensons Road landfill. Next, the particulars identify EPA notices received by MWMG, Grosvenor Lodge, and Casey which, presumably, stand as the particulars of breach of the licence and permits, except that the particulars state that the particulars of 'Casey's breach of the waste disposal agreement and its non-compliance with all conditions and requirements of the licences and permits insofar as it was able to do so are set out elsewhere'.[27] Further, referencing numerous EPA notices does not clearly articulate Casey's particular conduct in breach of any relevant condition or requirement of a licence or a permit. The particulars then make further allegations concerning the Cemetery Road landfill. The particulars do not explain the relevance of the Cemetery Road landfill to the allegation of breach of either clause 4.2 or the implied term. The cross-referenced Part VIII of the separate particulars sets out particulars of breach of clause 4.3 of the waste disposal agreement that is alleged in paragraph 143. I have already struck out paragraph 143.

(c) Third, Frankston neither pleads nor particularises the consequences of any breach of licence or permit conditions. The failure by Frankston to spell out the consequences of the alleged breach of clause 4.2 means that Casey is left guessing as to which losses claimed under clause 4.3 it is disentitled to, and, further, the amount of the loss that Frankston seeks to set off.

(d) Fourth, the breaches of clause 4.2 and the implied term are separate and distinct matters that Frankston has rolled up together, or else it gives no particulars of the breach of the implied term.

[227]

(a) Casey has leave to amend the writ to substitute City of Casey as plaintiff, and Metropolitan Waste Management Group and City of Frankston as defendants and to remove all other persons named as parties to the proceeding and shall comply with r 9.11 within 14 days of this order.

(b) An electronic copy (in Word format) of all current pleadings filed in the proceeding by the remaining parties be provided to my associate within 7 days of this order or within 7 days of filing with the court.

(c) Following the close of pleadings the proceeding thereafter be conducted in accordance with a List of Issues, being the issues raised in the pleadings as settled by the judge in consultation with the parties.

(d) By 23 September 2013, the legal representatives for Casey, Frankston and MWMG shall have conferred and co-operatively used reasonable endeavours to develop, from a first draft prepared by the legal representatives for Casey and exchanged within 14 days of service by it of its reply and defence to counterclaim, a structured statement of the issues raised in the pleadings that remain in contention between the parties.

(e) No party to the proceeding take any step, or any further step, to procure expert evidence to be adduced at the trial of the proceeding otherwise than in accordance with a direction of the court.

(f) By 30 August 2013, the solicitors for the parties shall have conferred to co-operatively use reasonable endeavours to agree how best to use technology in interlocutory steps and at the trial. The solicitors for the parties shall prepare and file by 23 September 2013, a joint report to the court addressing all aspects of the technology which might be used by the parties and the court including, but not limited to, the following matters:

agreed common protocols for imaging and electronic formatting of documents;

the preparation of an electronic court book;

agreed common protocols for chronologies, lists of documents and indexes, to enable data sorting, hyperlinking, revision and any other matter arising under sub-paragraph (f);

hyperlinking between chronologies, narratives, witness outlines, expert reports and submissions, including an agreed protocol for the electronic format of such documents (e.g. whether in Microsoft® Office Excel, Microsoft® Office Word, PDF or other format);

whether, and if so, when and by which party a hard copy core bundle is to be prepared containing those documents which are likely to be repeatedly referred to at the trial or for which a hard copy is otherwise considered desirable including as to how such bundle is to be paginated, formatted and produced;

the procedures or protocols to be adopted in relation to amendment, addition or substitution of any document within the court book; and

such further or other matters of technology protocol as may be considered desirable for the needs of the parties prior to trial, the needs of the parties and the court during trial, and the needs of the trial judge after the trial.

At a glance

Court

Decision date

Before

Source

Judgment (264 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (8)