Rule 15.1 of the UCPR provides that a pleading must give such particulars as are necessary to enable the opposite party to identify the case to be met. Rule 15.9 provides that the particulars must be set out in the pleading or, if that is inconvenient, be set out in a separate document referred to in the pleading and filed with the pleading. So, in concept, particulars are part of the pleading, either physically so or by reference.

What, then, is the distinction between pleaded facts and particulars?

The basic distinction is that particulars give specificity to assertions of a more general kind made in the body of the pleading. (For example, it may be asserted that the defendant was negligent, in which case the particulars will specify the respects in which it is said that the defendant was negligent.)

In two respects, a material distinction may arise between facts asserted in the body of the pleading, on the one hand, and particulars, on the other. First, the facts asserted in the body of the pleading must be sufficient, standing alone, to make out the party’s case (whether for a remedy sought or as a factual answer in law to the previous pleading). Gaps in the pleading party’s case cannot be filled in by providing particulars: H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 at [13]–[23].

Secondly, it is said that a party need not, and should not, plead to particulars: Pinson v Lloyds & National Foreign Bank Ltd [1941] 2 KB 72 at 75. (There should, however, be no occasion to do so because, where particulars are properly limited to making the pleaded facts more specific, an answer to the facts as pleaded will be an answer to the facts as particularised.)

In another and more important respect, there is no material distinction to be made between the facts asserted in the body of the pleading and such particulars as are provided. Together, the allegations of fact must be sufficient to apprise the opposite party of the case to be met: see “The purpose of pleadings and particulars” at [2-4930].

Part 14, Div 2, rr 14.4 and 14.5 (reply and subsequent pleadings) do not apply to the Small Claims Division of the Local Court, and Div 6 (defamation) does not apply to the Local Court.

Part 15, Div 1, rr 15.7 (exemplary damages), 15.8 (aggravated damages) and 15.12–17 (personal injury cases) do not apply to the Small Claims Division of the Local Court. Rule 15.8 (aggravated damages) does not apply to the Dust Diseases Tribunal. Division 4 (defamation) does not apply to the Small Claims Division of the Local Court or to the Dust Diseases Tribunal.

The word “pleading” is defined in the Dictionary to the UCPR as including a statement of claim, defence, reply and any subsequent pleading, and as not including a summons or notice of motion.

Conformably, r 14.1 provides that Pt 14 (Pleadings) applies to proceedings commenced by statement of claim and to proceedings in which a statement of claim has (later) been filed.

The relevant rules are UCPR r 14.26 (Admission and traverse from pleadings) and r 14.27 (Joinder of issue).

Where there is a joinder of issue, that is the end of that aspect of the pleadings and an issue or issues for trial are thereby identified.

How is a joinder of issue achieved?

Where a pleading alleges damage or the amount of damages, a pleading in response to that pleading is taken to traverse the allegation unless it specifically admits the allegation: r 14.26(3).

There can be no joinder of issue, express or implied, on a statement of claim: r 14.27(4). (Accordingly, if no defence is filed, the plaintiff must prove, ex parte, the facts relied upon for the remedy that is sought.)

Subrule 14.26(4) provides that r 14.26 does not apply to a pleading by or on behalf of a party under legal incapacity. Read literally, r 14.26(4) applies to the whole of r 14.26 (which is referred to above and which includes a number of pleading rules). However, a more limited effect might have been intended, namely, to prevent an admission arising by implication by operation of subrule 14.26(1) against a person under legal incapacity.

Rule 14.12(1) of the UCPR preserves the old style common money counts such as “for goods sold and delivered by the plaintiff to the defendant” and “for money lent by the plaintiff to the defendant”.

Rule 14.12(3) and (4) provides that notice to plead may be given in such cases and for what then follows.

Rule 14.2(1) of the UCPR provides that the court may order that the proceedings be tried without further pleadings if the issues between the parties can be defined without further pleadings or for any other reason. Rule 14.2(2) provides that, in such case, the court may direct the parties to prepare a statement of the issues or, failing agreement in that regard, may settle a statement itself.

A typically suitable case for the application of this rule is a proceeding involving only questions of law.

No leave is required to commence proceedings by statement of claim or to file a defence.

In the Supreme Court and District Court, no leave is required to file a reply, but leave is required to do so in the Local Court: r 14.4(1) and (2).

In all courts, leave is required to file any pleading subsequent to a reply: r 14.5.

Pleadings must be divided into numbered paragraphs, with each matter in a separate paragraph: r 14.6.

See UCPR, Pt 14, Div 4 (Verification of pleadings), rr 14.22–14.24.

Rule 14.7 of the UCPR provides that a pleading must contain only a summary of the material facts relied upon, and not the evidence by which those facts are to be proved.

This means that a pleading should not specify the way the asserted facts are to be proved (such as that certain persons saw or heard certain things, unless the seeing or hearing are themselves material facts).

Rule 14.8 of the UCPR provides that a pleading must be as brief as the nature of the case allows.

Rule 14.9 provides that the effect of any document or spoken words should be pleaded, not the terms of the document or spoken words unless material.

A pleading must not claim an amount for unliquidated damages except in relation to certain specified motor vehicle and other specified property damage claims: r 14.13.

Such matters may be pleaded: r 14.17.

Rule 14.14(1) of the UCPR provides that a plaintiff must plead specifically in a statement of claim any matter that may otherwise take the defendant by surprise.

Rule 14.14(2) provides that, in a defence or subsequent pleading, a party must plead specifically any matter that might otherwise take the opposite party by surprise (r 14.14(2)(a)), or that allegedly makes any claim, defence or other case of the opposite party not maintainable (r 14.14(2)(b)), or that raises matters of fact not arising out of the original pleading (r 14.14(2)(b)).

Material facts which if established would support a statutory defence such as ss 42 or 5O of the Civil Liability Act 2002 should be pleaded: Port Stephens Council v Theodorakakis [2006] NSWCA 70 at [15]; Sydney South West Area Health Service v MD (2009) 260 ALR 702 at [20]–[23], [65].

Rules like r 14.14(2)(a) are not confined in their operation to requiring the pleading of facts that are in a strict sense material to the cause of action or defence in question: Davis v Veigel [2011] NSWCA 170 at [95]. In some circumstances, in order to avoid surprise, it may be necessary for a party in his or her pleading to “explicitly relate the facts it pleads to specified causes of action”: Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135 at [21].

For statements condemning trial by ambush, see Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at [28]–[32], [40]–[46], Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80 at [59]–[60], and Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34 at [28]–[33].

For an example of relief in respect of the requirements of rr 14.14 and 15.1 on the grounds of privilege against self-exposure to penalties, see MacDonald v ASIC (2007) 73 NSWLR 612.

For a discussion of the related Anshun principle, see Ritchie’s at [14.28.20]; Thomson Reuters at [r 14.14.220]. And see Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245, Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118, Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; J & E Vella Pty Ltd v Hobson [2020] NSWCA 188 at [29]–[30] and Clayton v Bant [2020] HCA 44.

Rule 14.19 of the UCPR provides that a party may raise any point of law.

The rule enables a party, in its pleading, to raise for decision whether the facts pleaded in the preceding pleading have the asserted legal effect; for example, whether the facts pleaded in a statement of claim establish a cause of action or entitle the plaintiff to the relief sought, or whether the facts asserted in a defence provide an answer in law to the plaintiff’s claim.

See “Separate determination of questions” at [2-6100].

See r 15.2.

See r 14.25.

See Pt 14, Div 6, rr 14.30–14.40; Pt 15, Div 4, rr 15.19–15.32.

See Pt 15, Div 2, rr 15.12–15.17.

Claims for indemnity under s 151Z(1)(a) of the Workers Compensation Act 1987 are not claims for personal injuries, however, the plaintiff insurer should provide particulars whereby the defendant would know the case it had to meet in relation to, amongst other things, the damages the worker would have obtained in the appropriate proceedings: Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144. The insurer is only obliged to provide the best particulars that it can: Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd, above. See also State of New South Wales (Ambulance Service of NSW) v McKittrick [2009] NSWCA 63.

See r 15.18.

The most common ground on which such applications are made is that a pleading, including such particulars as it may contain, fails to serve the notice function of pleading, that is, the need to inform the opposite party of the case to be met.

The order may provide that the specified particulars be supplied by filing an amended pleading containing the required particulars or that the particulars be supplied by letter. The former course is in strict accord with r 15.1. The alternative (by letter) is supported by the court’s power to give directions generally: CPA s 61; and for the conduct of proceedings: CPA s 58. Which course to adopt will depend on the circumstances. Where the particulars in question are extensive or fundamental to the case, it may be preferable to require an amended pleading to be filed.

The following sample orders are provided. (These can be varied to require the particulars to be supplied by letter).

See “Summary disposal and strike out applications” at [2-6900].

See “Amendment” at [2-0700].

The appropriate response depends on the circumstances.

The following judicial statements may be noted.