Drafting Pleadings
1.0Drafting Pleadings21.1Purpose of Pleadings21.2Rules Applicable To All Pleadings31.2.1.1Formal Requirements and Effect of Non-Compliance with Form31.2.1.2Contents of Pleadings (What Should Be In Them)41.2.1.3Particulars in Pleadings71.2.1.4Other Miscellaneous Rules About Pleadings81.3Matters Which Must Be Specifically Pleaded91.4Statement of Claim (How to Draft)111.4.1.1Step One: Introductory Statements111.4.1.2Step Two: Make Substantive Allegations121.4.1.3Things to Allege in Defamation131.4.1.4Things to Allege in Negligence201.4.1.5Things to Allege in Breach of Contract361.4.1.6Things to Allege in Nuisance471.4.1.7Things to Allege in Breach of s 52 TPA (Misleading/Deceptive Conduct)491.4.1.8Step Three: Do Not Anticipate the Defence531.4.1.9Step Four: If Liquidated Sum, Plead the Details531.4.1.10Step Five: If Plaintiff Wants Jury, Request It551.5The Defence (How to Draft)551.5.1.1General Information About Defences601.5.1.2Step One: Plead the Admissions611.5.1.3Step Two: Plead the Denials611.5.1.4Step Three: Plead non-admissions621.5.1.5Step Four: Plead Any Set-Offs631.5.1.6Precedent: Defences in Defamation651.5.1.7Precedent: Defences in Negligence661.5.1.8Precedent: Defences in Breach of Contract691.5.1.9Precedent: Defence in Nuisance701.5.1.10Precedent: Defence to Breach of s 52 TPA731.5Defence and Counterclaim (How to Draft)761.6Reply (to Defence) by Plaintiff (How to Draft)791.7Answer (to Defendants Counterclaim) by Plaintiff (How to Draft)801.8Challenging / Objecting to Pleadings (Applies to All Pleadings)801.9Challenges / Objections to Particulars (Applies to All Pleadings)831.10Notice to Admit Facts or Documents831.11Pleadings Checklist85
1.0 Drafting PleadingsPleadings are documents exchanged between parties to litigation that set out material facts the parties intend to allege at the hearing.Serve a number of purposes: informing the court of the matters on which its decision is sought; defining the issues, and limiting the ambit of discovery and the evidence which needs to be prepared for trial; providing a record of all the matters involved in the proceeding, thereby preventing further actions between the same parties in relation to those actions.
Reminder on order of pleadings A plaintiff serves a Claim and a Statement of Claim on the defendant which sets out the facts that the plaintiff alleges establish a cause of action against the defendant, and also states the remedy sought (usually the amount of damages) The defendant then serves a Notice of Intention to Defend (either conditional or unconditional) back on the plaintiff to indicate that they do not accept liability or the remedy sought. A Defence will be attached to the NOITD and this document sets out the facts which the defendant says negative the allegations of fact made by the plaintiff in their Claim The defendant might also want to serve a Counterclaim on the plaintiff, setting out some facts which the defendant says establish a cause of action against the plaintiff The plaintiff might want to serve a Reply on the defendant which responds to any allegations of fact in the Defence which require anything more than a simple denial The plaintiff MUST serve an Answer on the defendant in response to a Counterclaim and the Answer works just like a DefencePurpose of PleadingsServe a number of purposes: informing the court of the matters on which its decision is sought; defining the issues, and limiting the ambit of discovery and the evidence which needs to be prepared for trial; providing a record of all the matters involved in the proceeding, thereby preventing further actions between the same parties in relation to those actions; so that the parties may be met by the pleas of res judicata or issue estoppel if they seek to relitigate (see 5.1 Underlying Theory Of Joining Parties on pg 65). may facilitate an early settlement once the parties are aware of the strength or weakness of the other sides case.Because the purpose of pleadings is to define the issues, this helps the court and the parites know the matters in issue (Bruce v Odhams).
A case can only be decided on a different basis to that set out in the pleadings if: the parties agree to depart from what was alleged; and the court permits the departure.
Leave may be granted, even very late in a proceeding, for the amendment of a pleading if the court is satisfied this is necessary for the attainment of justice (Qld v JL Holdings).Bank Commerciale SA (en liquidation) v Akhil Holdings LtdFacts: In 1978 the plaintiff sued the def. bank and two other parties in the NSWSC. Bank alleged the other def. had caused the bank to transfer from its ownership certain shares in a mining company which were held by it in trust for the plaintiff. Each def. filed a defence pleading that the action was statute barred. P did not reply to the banks defence, but in its reply to the defences of the other parties, it alleged that is action was one in respect of a fraudulent breach of trust by the bank. A copy of that reply was served on the banks solicitors. The bank did not appear at trial. Trial judge gave judgment for D. On Appeal, Court found that the bank was a party to the fraudulent breach (a finding which was not available based on the Ps reply to the Banks defence). Bank appealed to High Court.Held per Mason, Gaudron and Toohey JJ Appeal allowed. A case is only committed to be decided upon a basis thats different to the pleadings if the parties agree to what has been alleged and Courts permit that departure. It would be different if the Bank had been present at the hearing and acquiesced to the course adopted but they were not present. Acquiescence cannot be inferred by the Banks failure to participate Therefore the P was only entitled to such relief as was available on the pleadings.
See pg 441 onwards in TB.
Rules Applicable To All PleadingsFormal Requirements and Effect of Non-Compliance with Form
Governed by rule 146 UCPR:146 Formal requirements
(1) A pleading must--(a) state the number of the proceeding; and(b) state the description of the pleading; and(c) be filed and state the date on which it is filed; and(d) be signed by the solicitor for the party filing it or, if the party appears or defends in person, the party; and(e) be consecutively numbered on each page; and(f) be divided into consecutively numbered paragraphs and, if necessary, subparagraphs, each containing, as far as practicable, a separate allegation; and(g) if it is settled by counsel--state the counsel's name.
(2) In addition, a pleading (other than a reply) must have on it a notice to the party on whom the pleading is served under rule 164 informing the party about the time for serving pleadings in response under rule 164.
All pleadings must be filed (r 146(1)(c)) and signed (r 146(1)(d)). Effect of Non-Compliance With Formal RequirementsA failure to comply with formal requirements is an irregularity only, and does not render anything in the proceeding a nullity (r 371(1)). However, the court may: Set aside all or part of the proceeding (r 371(2)(a)); Set aside a step taken in the proceeding or order made in the proceeding (r 371(2)(b)); Declare a document or step taken to be ineffectual (r 371(2)(c)) or effectual (r 371(2)(d)); Make another order under the rules (r 371(2)(e)); or Make any order dealing with the proceeding as the court considers appropriate (r 371(2)(f)).An order under rule 371 must set out details of the failure to comply (r 372).A pleading (other than a Reply) must have on it a notice to the party on whom the pleading is served under r 164 informing the party about the time for serving pleadings in response under r 164 (r 146(2)).Contents of Pleadings (What Should Be In Them)All pleadings must: (r 149(1)()): (a) be as brief as the nature of the case permits; and (b) contain a statement of all the material facts on which the party relies, but not the evidence by which those facts will be proved; and (c) state any matter which, if not stated, would take the other party by surprise; and (d) state the relief claimed; and (e) if a claim/defence under an Act, the specific provision of the Act.
As Brief as the Nature of the Case Permits (r 149(1)(a)) Keep it short! Extreme repetition of passages in the defences have been held to prejudice the fair trail of the proceeding: Williams J at [97] Robinson v Laws (endless transcript of radio broadcast; defence struck out) HOWEVER it is accepted that some cases result in a statement of claim that is long and involved and this cant be avoided: Midland Milk Pty Ltd Use cross-referencing in pleadings to avoid repeating things you have already said For example say, the meeting referred to in paragraph 4 of the Statement of Claim.
Robinson v Laws [2001] QCA 122
it is possible by cross- referencing to raise all relevant issues in a clear and straightforward way. At first instance the learned judge observed that "repetition is...often an aid to comprehension, particularly when something is to be conveyed orally". There is truth in that statement, but it is not universally true. The matter must be considered in the light of all the circumstances. Here, the repetition of the passages I have referred to would prejudice the fair trial of the proceeding. The pleading is prolix and vexatious.
Statement of All Material Facts (r 149(1)(b)) Must plead all facts which are necessary to constitute a complete cause of action or defence (Kirby v Sanderson Motors). That is, those facts that, if proved, would entitle the party to relief. Material facts also extend to the relief being sought and such other facts as will ensure the other party is not taken by surprise. Immaterial facts should not be pleaded (but the rule is relaxed in relation to introductory matters like descriptions of parties, occupations, location of business etc). Must state the facts alleged in a way that allows the other side to understand the materiality of the fact (that is, how it is material to the cause of action/defence). Material facts do not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract etc (Kirby v Sanderson Motors). Facts But Not Evidence A distinction is drawn between facts, and the evidence by which those facts will be proved. Facts, which merely evidence the facts establishing the cause of action, should not be pleaded. Example: do not say: In the course of a conversation over lunch on 5 May 1999, the Plaintiff advised the def. that he was sick of paying a fortune for imported parts for his 1993 Porsche and that he was going to quit it for only $16,000. The def. agreed that this was a good price, and the parties made arrangements for the delivery of possession of the vehicle to the def. on 10 May 1999. Instead, use: On or about 5 May 1999 the Plaintiff orally agreed to buy and the def. agreed to sell for $16,000 a 1993 Porsche motor vehicle. Facts vs Conclusion of Law / Point of Law Generally not required to plead the legal consequences flowing from the facts relied on. It is for the court to declare the law. A pleading will be sufficient if it pleads the essential ingredients of a cause of action/defence, and puts the other party in a position to know the case to be met at trial. For example, dont have to say 2nd defendant owns the motor vehicle, thereby giving rise to an action in vicarious liability against them. Can just say 2nd defendant owns the vehicle driven by the 1st defendant in the accident. This is enough for the court to infer an allegation of vicarious liability (Creedon v Measy Investments). However, sometimes a pleading will be more intelligible if it sets out the conclusion for which the pleader contends. Therefore, a party may choose to state the conclusion of law, but must also plead the material facts leading to that conclusion (r 149(2)). Even if do this, can ask the court to draw a different conclusion of law at trial (ie can diverge from pleaded conclusion when at trial) (Re Vandervells Trusts). For example, with negligence, you need to disclose information relevant to Duty, Breach and Damage.
A Matter Which, If Not Plead, Would Take The Other Party By Surprise (r 149(1)(c)) Requirement to avoid surprise means that material facts must be stated in a way that a defendant can understand the materiality of the facts (i.e. how they are material to the case) (Kirby v Sanderson Motors per Hodgson JA, Mason P & Hanley JA agreeing).
Must Include the Relief Claimed (r 149(1)(d)) The relief/remedy sought must be stated (prayer for relief). For example, defamation = do you want an apology, retraction, damages, punitive damages etc But under r 156 the court may also award other general or non-specific relief not stated in the evidence if the evidence shows that the relief claimed by the pl is inadequate. E.g. the pl lists the principal orders sought but the court may order further or general relief to make the orders effective The rules require that the pleading state the nature and amount of damages claimed (see later under particulars for damages) r 155 The QCA has indicated that the details in relation to damages as required by rr 150(1)(b) and 155 should appear as allegations in the body of the statement of claim and not only in the prayer for relief. In appropriate circs, however, the claims for relief in the prayer for relief may simply refer back to the amounts or matters pleaded in the relevant paragraphs of the statement of claim: Meredith v Palmcam Pty Ltd Also, the UCPR requires that a claim for interest to the date of judgement should be pleaded. Also the pl must allege particulars of the amount(s) on which interest is claimed, the interest rate(s) claimed and the method of calculation: r 159 but NOT for proceedings for damages for PI or death (r 159(2)) Example It is not sufficiently particularized to say overcharge instead say charged higher than amount agreed to in corporate menu and the amount of the specific relief claimed for that issue.
Claim/Defence Under Act, Must Plead Specific Provision (r 149(1)(e)) To plead the statutory provision complies with the general obligation to inform the other side of the case to be answered and not take them by surprise. It also makes the pleading more meaningful and intelligible. State the Act and the section number relying on (eg the conduct referred to in paragraph 6 of the Statement of Claim was in contravention of s 52 Trade Practices Act 1974 (Cth)).
Particulars in Pleadings
Party must include particulars necessary to: r157(a) define the issues for, and prevent surprise; and(b) enable the opposite party to plead; and (c) support a matter specifically pleaded under rule 150.
Eg. [10] says guests suffered gastro-intestinal, would need to plead more information/particulars: cost of medical damages, who got it, what is it, medical reports said ____, when, how dealt with, costs, damages listed, names of ill guests (to make connection with off food).
Eg. what is expectation, can you sue for it. In particulars need to plead what stage in tender process, only two competitors, always won tenders in the past.
IF in doubt court favours the defendant: Where there is doubt about the sufficiency of particulars, it is resolved in favour of the defendant, so as to ensure their being in a position to fully understand and prepare for the case alleged against them: R v Associated Northern Colleries (per Isaacs J).
If seeking order for better and further particulars:Party may seek an order for better and further particulars under r161 in the form of an interlocutory application. There is a lot of discretion when ordering for better and further particulars, including situations where there is no legal power, but merely a moral obligation: Bailey v FCT (per Gibbs J).
IF Negligence Action: In negligence action need to include enough particulars to ground negligence rather than only very specific claims: Doonan v Beecham.
Doonan v BeechamFacts: Plaintiff hit by motor vehicle driven by defendant. SOC set out number of particulars with respect to the allegned negligence. (e.g. speed, wrong side of road, failure to look, failure to slow down when danger arose, failing to apply brakes). Held: Trial Judge (overturned) could not infer on the evidence that accident was due to any particular cause particularised and therefore ordered jury to find for defendant. High Court held as long as could be reasonably inferred from all the evidence available within the pleadings and particulars that accident was due to the negligence of the defendant then it was permissible to find for the plaintiff.
IF Claiming Award of Interest:If party intends to apply to the court for an award of interest: r159(1)(2) Does not apply to a proceeding for damages for personal injury or death; (3) Party must allege in the partys pleadings particulars of: (a) amount or amounts on which the interest in claimed; (b) the interest rate or rates claimed; (c) the day or days from which interest is claimed; and(d) the method of calculation.(4) However the rate/s of interest need not be separately specified if the party is claiming at the rate/s specified in a practice direction.
Philosophical Basis:Function of pleadings and particulars not to circumscribe the cause of action sued on but to limit the issues of fact to be investigated: Katsilis v Broken Hill.
Other Miscellaneous Rules About Pleadings
Documents and Conversations Where the effect of a document/conversation is material but not the particular words used, just plead the effect of the document (r 152). If there is controversy in relation to the construction of a document (or words spoken), the material words alleged should be set out in the pleading in full (r 152).
Conditions Precedent Generally, a plaintiff need not specifically plead the performance of any condition precedent, because it is already implied in the pleading (r 153(1)). If the party is denying performance of a condition precedent, or the occurrence of a condition precedent, then this must be specifically plead (r 153(2)).
Presumptions No requirement to plead any matter of fact which the law presumes in their favour, or which the other party bears the onus of proof (r 151(1)). For example, in defamation the falsity of defamatory words is presumed and the burden of proving the truth of the imputations is placed on the defendant (A v Ipec Australia). However, must still plead presumptions where it is necessary to comply with r 149 or to deny an allegation.
Inconsistent Pleadings You are allowed to make inconsistent allegations in your pleading, but you must be pleaded in the alternative (r 154(1)). However, a party cant make an allegation or a new claim in a pleading if that is inconsistent with an allegation in another pleading of that party unless the previous pleading is amended (r 154(2)).
Matters Which Must Be Specifically Pleaded
The following matters must be specifically plead (r 150(1)()):(a) breach of contract or trust;i. include information about offer, acceptance, consideration, intention to create legal relations, certainty, capacity.(b) every type of damage (including special/exemplary damages);i. State information about the nature of the loss suffered, the exact circumstances in which it was suffered, and the basis on which the amount claimed is worked out or estimated (r 155)ii. Compliance is mandatory (cannot say particulars will be given later etc) (Meredith v Palmcam).iii. Statements of particulars necessary for compliance with this subrule should appear as allegations in the body of the statement of claim and not only in the prayer for relief (Meredith v Palmcam)iv. Within 28 days of the close of pleading plaintiff must serve a written statement of loss and damage: r 547(c) defence under LOAA (a statute-barred claim);i. where a time limitation has expired(d) duress;(e) estoppel;i. including res judicata and issue estoppel (Stereff v Rycen & Anor [2010] QDC 117 @ [187]-[190] per Irwin DCJ).1. Defendants did not plead res judicata and issue estoppel in their defence, but sought to raise it in the final address (when claim was almost 4.5 years old). 2. HELD: too late in proceedings to give leave to amend, did not plead, therefore court cannot consider the estoppels.(f) fraud;i. Needs to expressly state allegation and facts to constitute the fraud: Millhouse v Environautics (Sale of goods, seller sold goods of a lesser value than the contract price stated; McGill J wouldnt necessarily have to state contract price and real value was, but if you can you would to narrow the litigation; in that case they should have though)(g) illegality;i. Subrule 150(1)(g) requires that illegality must be specifically pleaded. If however, illegality of a contract is brought to the attention of the court at trial and it appears that the plaintiff was implicated in that illegality the court will refuse to enforce the contract, even if the defendant has not raised the illegality by way of defence: Shimmin v Doherty [1918] St R Qd 213 at 223; Montague v Pooley [1951] St R Qd 291 at 296-7.(h) interest (state rate + method of calculation);(i) malice or ill will;(j) misrepresentation;(k) motive, intention, knowledge, notice (or other condition of mind);i. Does not require that anything more than the existence of knowledge as a material fact be expressly pleaded where a party is proposing to rely on the existence of that knowledge in establishing a cause of action or defence. Even if something further ought to be provided by way of particulars, such as, in the case of a corporation, who on behalf of the corporation is alleged to have had the relevant knowledge, that is a matter which is, in my opinion, properly dealt with, if not pleaded initially, by a request for particulars, and if necessary an order for particulars, under r.161. It is not a ground for striking out the pleading for failure to comply with r.150 (Millhouse v Environautics per McGill DCJ @ [21]).(l) negligence or contributory negligence;(m) payment;(n) performance;(o) part performance;(p) release;(q) undue influence;(r) voluntary assumption of risk;(s) waiver;(t) want of capacity, including disorder or disability of mind;(u) testator did not know or approve contents of will;(v) will not properly made;(w) wilful default(x) anything else required (by approved form/practice direction).
In addition, any fact from which any of the above can be an inference must be specifically pleaded (r 150(2)).
If Suing For A Liquidated Amount (Debt or Demand)
A debt or liquidated demand is a claim for a specific sum of money, fixed by a scale or formula which does not depend on the court forming any opinion (Spain).
If you are claiming for a debt or liquidated demand, you must state the following things in the statement of claim (r 150(3)):(a) particulars of the debt;(b) particulars of interest;(c) the amount claimed for costs in issuing claim and statement of claim;(d) a statement that the proceedings end if the defendant pays before 28 days from service; and(e) a statement of the additional costs of default judgment.
Check relevant info at the end of Form 16 in relation to r 150(3):
NOTICE UNDER RULE 150(3)
The plaintiff claims:
$...................
$.................... for interest; and
$....................for costs of issuing the claim and this statement of claim.
The proceeding ends if you pay those amounts before the time for filing your notice of intention to defend ends. If you are in default by not filing a notice of intention to defend within the time allowed, the plaintiff is entitled to claim additional costs of $............., costs of entering judgment in default.
Statement of Claim (How to Draft)
Statement of Claim is used by the plaintiff and must be attached to a Claim (Form 2) (r 22(2)(b)).
The approved form for a Statement of Claim is Form 16.
A Statement of Claim must disclose a cause of action. Information on how to disclose causes of actions are in the specific sections below. Basically, to disclose a cause of action you must make out each of the elements of the action.
Step One: Introductory Statements
Introductory statements should: State who the parties are; How the parties are connected to each other by reference to the dispute; If any party is a corporation, an allegation that the party is and was at all material times incorporated, and entitled to sue or be sued in its own name (Moldex v Recon Ltd); If any party is acting in a representative capacity, state the nature of the involvement; In the District and Magistrates Courts, state facts establishing the courts jurisdiction.
Examples: The first defendant is and was at all times a company duly incorporated in Queensland. The second defendant was at all material times a director of the first defendant. The plaintiff is a company duly incorporated and having its registered office at 16 Smith Street, West End, Brisbane in the State of Queensland. The plaintiff is a female born on 15 July 1993. the first defendant was the registered proprietor of land and premises situated at .and bearing real property description the first defendant was the occupier of the car park area situated on the property described in paragraph 2(c). the second defendant was the registered lessee of part of the ground floor of the building erected on the property described in paragraph 2(c), and the second defendant traded in those premises under the name Pizza Perfect. The plaintiff brings these proceedings in a representative capacity on behalf of himself and all other proprietors of small crop farms (the represented farmers) who suffered damage to their water systems and crops through the conduct of the defendant referred to herein.
Step Two: Make Substantive Allegations
Here, you should set out the material facts relied on to support the claim: allege facts that will, in law, justify the court in awarding the relief sought.
Go through what happened, usually chronologically, and set out why what happened will give rise to a cause of action against the defendant.
Things to Allege in Defamation
Need to: Identify the defendant as the publisher of the material; and Eg: The first defendant published a magazine entitled Totally True Magazine on or about 15 May 2010. Show that the statement was reasonably referable to the plaintiff; and Eg: The statement published by the first defendant referred to the plaintiff [by name]/[by its well known alias etc]. State the actual words used; and Eg: The first defendant published the words Nick Dowses notes are so shit compared to the Hill Notes and Matt Robinsons notes he is just a shit person. You must state the actual words used so that the court can judge whether the words are capable of defamatory meaning, and so the defendant can know the precise charge which is made against him (Ron Hodgson v Belevedere Motors) Identify the defamatory imputation conveyed by the words; and Eg: The imputation conveyed by the first defendants statement is that the plaintiff is a person of bad character. Set out all the facts in relation to the precise publication alleged; and State who published it, what was published and where it was published Eg: The first defendants magazine was published around Australia and internationally, and all print editions contained the defamatory imputation particularised in paragraph X. Facts about the nature and extent of damages that occurred as a result. Eg: As a result of the first defendants publication, people have stopped downloading the plaintiffs notes from his website which used to receive thousands of visitors annually. The defendants statements have lowered the plaintiff in the estimation of other law students. The plaintiff has suffered losses of $XXX,000.00 per day each day since the magazine was published.
Mere surplusage does not vitiate the pleading, but is poor drafting practice (Ron Hodgson).
Example Defamation Precedents
General form of heading and conclusion for the Supreme Court: based on an oral defamation; false innuendo; plaintiff named
BETWEEN: [name of plaintiff]PlaintiffAND: [name of defendant]DefendantFiled in the [insert] registry on [date]STATEMENT OF CLAIMThis claim is proceeding in reliance on the following facts:1.At all material times to this action: (a)the plaintiff was and is a dairy farmer carrying on business in the [name of district] district of Queensland; (b)the defendant was and is a dairy farmer carrying on business in the [name of district] district of Queensland.
2.On the [date], at [place] the defendant spoke and published of and concerning the plaintiff to one [name] these words:
I am surprised to see you in company with [name of plaintiff]. He is not the sort of person any decent man should be seen with.
3.The said words in their natural and ordinary meaning meant and were understood to mean that the plaintiff: (a)was a person of bad character; (b)lacked moral probity.
4.The said meanings set forth in the immediately preceding paragraph were defamatory of the plaintiff.5.By reason of the publication of the words set forth in paragraph2, the plaintiff has been injured in his personal [and business] reputation.6.The plaintiff claims the following relief: (a)damages for defamation in the sum of $[amount];1. (b)interest;2. (c)costs.
The plaintiff [requires/does not require] the action to be tried by a jury.Signed: ............[signature]Description: Solicitors for the plaintiffThis pleading was settled by [name]
FOOTER!!NOTICE AS TO DEFENCEYour defence must be attached to your notice of intention to defend.
Defamation; Newspaper article; false innuendo; plaintiff not named; special damages; aggravated damages
BETWEEN: [name of plaintiff]PlaintiffAND: [name of defendant]DefendantFiled in the [insert] registry on [date]STATEMENT OF CLAIMThis claim is proceeding in reliance on the following facts:
1.At all times material to this action: (a)The plaintiff was and is a sports promoter with [name of promotions company] and has featured in a number of television advertisements and programs in that capacity;(i)[insert particulars of the program]; (b)the defendant was and is a company duly incorporated; (c)the defendant was and is the publisher of the newspaper, [name of newspaper]; and (d)the [name of newspaper] has a wide circulation in Brisbane and throughout Queensland.
2.In the edition of [name of newspaper] published on [date] at [page] the defendant published of and concerning the plaintiff the following words:
An Australian tennis player of the year, now a prominent sports promoter has been taking more than his fair share of trips overseas recently. He has been seen in the company of [name] who has numerous drug-related convictions and their association may explain the frequent overseas jaunts.
3.The said words were published of and concerning the plaintiff in that: (a)the plaintiff was voted Australian tennis player of the year in [year]; (b)the plaintiff has been overseas on the following dates:(i)[insert details of overseas trips]; (c)the plaintiff appeared in a recent photograph with [name of person identified paragraph2] published in the [insert details of the publication of the said photograph]; (d)further the plaintiff relies on the matters set out in paragraph1(a) herein.
4.The said words would have been understood to refer to the plaintiff by numerous readers of [name of newspaper] and in particular those who are sports enthusiasts.5.Further the said words were understood to refer to the plaintiff by: [insert names and addresses of persons who identified the plaintiff with the publication in paragraph2].6.The said words in their natural and ordinary meaning meant and were understood to mean that the plaintiff: (a)was a drug trafficker; (b)was an associate of criminals; and (c)was of bad character.
7.The words set forth in paragraph2 herein were defamatory of the plaintiff.8.By reason of the publication of the words set forth in paragraph2, the plaintiff has been injured in his personal [and business] reputation.
or, where the plaintiff has suffered an identifiable pecuniary loss
8.By reason of the publication of the words set forth in paragraph2 herein the plaintiff has been injured in his personal and business reputation and in particular the businesses [name businesses] which had formerly paid the plaintiff to endorse their products in advertisements of same, have withdrawn the said endorsements and the plaintiff has thereby lost income and other benefits associated with the endorsement agreements.PARTICULARS
[insert particulars of special damages1.]
9.By reason of the matters set forth in paragraph [insert as appropriate] the plaintiff is entitled to an award of aggravated damages.10.The plaintiff claims the following relief:2. (a)damages for defamation in the sum of $[amount], including aggravated damages;3. (b)special damages (c)interest;4.(d)costs.
Defamation by advertisement; false innuendo; plaintiff not named; exemplary damages
BETWEEN: [name of plaintiff]PlaintiffAND: [name of defendant]DefendantFiled in the [insert] registry on [date]STATEMENT OF CLAIMThis claim is proceeding in reliance on the following facts:1.At all times material to this action: (a)the plaintiff owned and operated an automotive repair and service business under the style or firm name of [name of plaintiff's business] (hereinafter referred to as the plaintiff's business); (b)the plaintiff's business is and was an authorised Royal Automotive Club of Queensland (RACQ) Service Centre; (c)the defendant has owned and operated an automotive repair and service business which trades under the firm or style name of [name of defendant's business] (hereinafter referred to as the defendant's business); (d)a publication called Fantasie Times:(i)is and was published by the Fantasie Chamber of Commerce;(ii)is and was published monthly;(iii)carries advertisements at a charge to the person or entity placing such advertisement;(iv)is distributed to various business outlets situated in or about Fantasie for distribution to members of the public visiting the said business outlets, free of charge; and(v)has a wide circulation in the Fantasie district.
2.In the 1987 April edition of the Fantasie Times the defendant caused to be printed and published, an advertisement measuring 17.5 cm x 9.7 cm to advertise the defendant's business in which appeared (inter-alia) the following words:
[name of plaintiff's business]
Formerly at Calso
Ph: [number]
NOW AT OLD RACQ
OLD FASHIONED SERVICE AT OLD FASHIONED PRICES NED KELLY DOESN'T WORK HERE ANYMORE
3.The said words Ned Kelly doesn't work here anymore referred to and were understood to refer to the plaintiff in that: (a)at the time of publication of the said advertisement the defendant's business was and is situated at [address] (the defendant's current premises); (b)the defendant's current premises had, up to 15March 1987, been occupied by the plaintiff who had carried on the plaintiff's business including the RACQ Service Centre from those premises from 1January 197515March 1987; (c)the defendant's business had moved to the defendant's current premises on or about 1April 1987; and (d)the plaintiff's business had relocated to [address] Fantasie on or about 20March 1987.
4.The said words would have been understood to refer to the plaintiff by many persons who are resident in Fantasie and the surrounding district.5.Further, the said words were understood to refer to the plaintiff by: (a)[insert in paragraphs numbered from (a), the names and addresses of any persons who can give evidence for the plaintiff that on reading the advertisement they believed that the said words referred to the plaintiff;]
6.The said words in their natural and ordinary meaning meant, and were understood to mean, that the plaintiff: (a)lacked commercial probity; (b)improperly used his position as the local RACQ Service Centre to charge unfair and unreasonable prices to members of the public attracted to the plaintiff's business by virtue of its being an RACQ Service Centre; (c)charged exorbitant and unreasonable amounts in respect of work done for and materials provided to the public in the course of the plaintiff's business; (d)was dishonest in the operation of the RACQ Service Centre conducted by him; and (e)was a person unsuited by virtue of the unfair and unreasonable prices charged by him to conduct a registered RACQ Service Centre.
7.The words set forth in paragraph2 were defamatory of the plaintiff.8.The meanings set forth in paragraph6 were calculated to, and did, disparage the plaintiff in his personal reputation and in his said trade or business as an automotive repair and service centre.9.At all times material to this action the defendant was in a position to derive a pecuniary benefit from damage done to the plaintiff in the way of his trade or business.PARTICULARS10.By virtue of the matters set forth in paragraph9, the plaintiff claims aggravated damages.PARTICULARS11.The plaintiff claims the following relief:1. (a)damages for defamation including aggravated damages in the sum of $[amount]; (b)interest; (c)costs;
The plaintiff [does/does not] require a jury.Signed: ............[signature]Description: Solicitors for the plaintiffThis pleading was settled by [name]
NOTICE AS TO DEFENCEYour defence must be attached to your notice of intention to defend.
Television broadcast; false innuendo; plaintiff named
BETWEEN: [name of plaintiff]PlaintiffAND: [name of defendant]DefendantFiled in the [insert] registry on [date]STATEMENT OF CLAIMThis claim is proceeding in reliance on the following facts:
1.At all material times: (a)the plaintiff was and is [insert as appropriate]; (b)the first defendant was the on-camera reporter of the program [name of program]; (c)the second defendant was the producer of the aforesaid program; (d)the third defendant is a company duly incorporated being a licensed operator of Channel [name of channel] transmitting for general reception in Queensland, television programs, and in particular, that program known as [name of abovementioned program]
2.On 10June 1985 during the course of [insert name of the television program] in which the first defendant was interviewing the federal member for Fantasie, the first defendant published and the second and third defendants caused to be published of and concerning the plaintiff by visual images, words and gestures the matters set forth hereunder:
I was surprised to see that a person in your position as a holder of public office, has renewed your association with [name of plaintiff], given the questionable associations he maintains and his rumoured involvement with the now defunct [name of trust] investment trust whose investors lost millions in circumstances where fraud and misappropriation were established.
3.The said words, I was surprised to see that a person in your position as a holder of public office, has renewed your association with [name of plaintiff] in their natural and ordinary meaning meant and were understood to mean that the plaintiff: (a)was unfit to be an associate friend of a person in public office; (b)was a person of bad character.
4.The said words given the questionable associations he maintains in their natural and ordinary meaning meant and were understood to mean that the plaintiff: (a)was an associate of criminals; and (b)was an associate of persons who associated with criminals.
5.The said words and his rumoured involvement with the now defunct [name of trust] investment trust whose investors lost millions in circumstances where fraud and misappropriation were established in their natural and ordinary meaning meant and were understood to mean that the plaintiff: (a)conducted his business dealings in an unethical manner; (b)lacked commercial probity; and (c)unethically secured his personal advantage in his business dealings at the expense of others.
6.The words set forth in paragraph2 were defamatory of the plaintiff.7.By reason of the publication of the words set forth in paragraph2 the plaintiff has been injured in his personal [and business] reputation.8.The plaintiff claims the following relief:1. (a)damages for defamation including aggravated damages in the sum of $[amount]; (b)interest; (c)costs;The plaintiff [does/does not] require a jury.Signed: ............[signature]Description: Solicitors for the plaintiffThis pleading was settled by [name]
NOTICE AS TO DEFENCEYour defence must be attached to your notice of intention to defend.
Things to Allege in Negligence
Need to: Show the defendant owed a duty of care to the plaintiff; and A manufacturer owes a duty of care to prevent injury to persons when it is reasonably foreseeable that they would use the manufactured goods: Donoghue v Stevenson [1932] AC 562. An occupier of premises owes a duty of care to persons entering the premises in respect if risks of physical injury arising from the condition of the premises: Australian Safeway Stores v Zaluzna (1987) 162 CLR 479. Employers owe their employees a duty to take reasonable care not to expose them to unnecessary risk of injury. The scope of the duty is to provide the employee with a safe system of work, safe plant and equipment and competent supervisory staff: Smith v Charles Baker & Sons [1891] AC 325. Drivers of motor vehicles owe a duty of care to passengers and other road users. The scope of the duty is to use proper care not to cause injury to persons on the highway or in premises adjoining the highway: Cook v Cook (1986) 162 CLR 376. Doctors owe patients a duty of care in the provision of diagnosis, treatment and advice: Rogers v Whittaker (1993) 175 CLR 479. School authorities/teachers owe a duty of care to students. The duty is to take such precautions for safety on the occasion in question as a reasonable parent would have done in the circumstances: Geyer v Downs (1978) 138 CLR 91. Solicitors owe a duty of care to their clients to exercise reasonable care in the provision of their services: Hyland v Campbell (1995) Aust Torts Reports 81-352. Demonstrate how the defendant breached that duty; and Eg: The defendant breached her duty of care to the plaintiff because she did not take off the blindfold before swinging the machete at the plaintiffs beautiful face. Eg: The defendant knew or should have known what was occurring at the pontoon was dangerous and should have taken steps to stop helicopters landing there. (McCauley v Hamilton Island Enterprises) Show the damage suffered by the plaintiff as a result of the defendants breach. Eg: As a result of the defendants failure to remove the knife from inside the toaster, the plaintiff suffered an egregious electrical shock, causing his eyeballs to pop out of his head and fall onto the ground, from which the family dog ate them for dinner. The plaintiff has been unable to work as a professional pornography watcher since losing his eyesight, causing him to suffer $123,447.57 per hour in lost wages.
A court will not strike out a claim just because it appears unlikely that it will succeed. This is subject to the qualification that the claim must not be an abuse of process etc (McCauley v Hamilton).
Its not enough to just allege that the defendant was negligent. Need to show duty, breach, damage (McCauley).
Example Negligence Precedents
DISTRICT COURT OF QUEENSLAND
REGISTRY: BRISBANENUMBER: BD . of 2011
PLAINTIFF:AMANDA MUSCLES by her Litigation Guardian Tom Muscles
AND
FIRST DEFENDANT:PROPERTY PLUS PTY LTD (ACN.)
ANDSECOND DEFENDANT:PERFECT PIZZA PTY LTD (ACN)
STATEMENT OF CLAIM
This claim in this proceeding is made in reliance on the following facts:
1.At all material times to this action, the plaintiff:
(a) was a natural person residing at 44 Tennis Ball Lane, Everton Park, Brisbane in the State of Queensland;(b) was female; and(c) was born on 15 July 1995.
2.At all material times to this action, the first defendant:
(a) was a company incorporated under the Corporations Act 2001 (Cth);(b)was the registered proprietor of land located at Dolly Street, Everton Park, Brisbane in the State of Queensland, more particularly described as Lots on RP (the Site);(c)was the registered proprietor of premises situated at the Site;(d) was the occupier of the car park area situated on the Site (Car Park).
3.At all material times to this action, the second defendant:
(a) was a company incorporated under the Corporations Act 2001 (Cth);(b) was the registered lessee of part of the ground floor of the building erected on the Site on the registered lease more particularly described as Queensland Department of Natural Resources and Water, Dealing Number (Pizza Perfect Premises); and(c) traded in those premises as a retailer of fast food, including pizzas, under the name of Pizza Perfect.
FOOTER:Statement of ClaimFiled on behalf of the plaintiffForm 16 RR 22, 146
PI Juries & AssociatesSolicitors12th Floor, 344 Queens StreetBRISBANE QLD 4000Phone: (07) 3444 5555Fax: (07) 3444 5556Ref: RNG:SPL:DWN:69584
4.On 25 July 2010 at or about 8:20 pm, the plaintiff:
(a) was lawfully upon the Car Park.
(b) attended at the Pizza Perfect Premises to collect an order of pizzas.
(c) whilst leaving the Pizza Perfect Premises and returning to a vehicle that was parked in the Car Park, tripped on a concrete guard separating the footpath outside the Pizza Perfect Premises and the Car Park.
(d) consequentially fell heavily to the ground and suffered personal injury, loss and damage.
5.The plaintiffs personal injury, loss and damage was caused by the negligence of the first defendant and the second defendant.
Negligence of the First Defendant
6. The first defendant, as occupier of the Site and Car Park, owed an established duty of care to the plaintiff in respect of risks of physical injury arising from the conditions of the Site and Car Park.
7. The scope of the duty of care owed by the first defendant to the plaintiff was to ensure the plaintiff was not exposed to an unreasonable risk of physical injury.
8. The standard of care owed by the first defendant to the plaintiff was that of a reasonable and prudent business providing retail shopping facilities and parking.
Paragraphs 5, 6 and 7 are points of law which are not necessary to plead but are permissible: r 149(2). However, if they are pleaded, then you must ensure that you plead the material facts in support of these points. See also [9.2.7] [9.2.9] in Stephen Colbran et al Civil Procedure 4th ed.
9. The first defendant, in contravention of section 9 of the Civil Liability Act 2003 (Qld), breached the standard of care owed to the plaintiff by:
(a) failing to take any or any adequate precautions for the safety of the plaintiff whilst she was lawfully on the premises;
(b)exposing the plaintiff to a risk of injury of which it knew or ought to have known, namely the risk of a trip and fall injury on the concrete guard;
(c)failing to paint or otherwise mark the concrete buffer with reflective paint or other like material adequately or at all so as to warn or adequately warn persons such as the plaintiff travelling between the premises and the adjacent car park of the existence of the concrete guards;
(d)failing to conduct any inspection and/or maintenance of the concrete guards adequately or at all so as to ensure that any existing paint or other material present on the concrete guard was sufficient so as to highlight the existence of the concrete guard to persons such as the plaintiff;
(e)failing to illuminate the adjacent car park area adequately so as to ensure that the concrete guards were readily visible;
(f)failing to warn the plaintiff adequately or at all of the existence of the concrete guards; and
(g)failing to warn the plaintiff adequately or at all of the risk of injury from tripping and/or falling over the concrete guard.
Negligence of the Second Defendant
10. The second defendant, as occupier of the Pizza Perfect Premises, owed an established duty of care to the plaintiff in respect of risks of physical injury arising from the conditions of the Pizza Perfect Premises and Car Park.
11. The scope of the duty of care owed by the second defendant to the plaintiff was to ensure the plaintiff was not exposed to an unreasonable risk of physical injury.
12. The standard of care owed by the second defendant to the plaintiff was that of a reasonable and prudent business carrying on the supply of fast food and parking to the public.
Paragraphs 9, 10 and 11 are points of law which are not necessary to plead but are permissible: r 149(2). However, if they are pleaded, then you must ensure that you plead the material facts in support of these points. See also [9.2.7] [9.2.9] in Stephen Colbran et al Civil Procedure 4th ed.
13. The second defendant, in contravention of section 9 of the Civil Liability Act 2003 (Qld), breached the standard of care owed to the plaintiff by:
(a)failing to take any or any adequate precautions for the safety of the plaintiff whilst she was lawfully on the premises;
(b)exposing the plaintiff to a risk of injury of which it knew or ought to have known, namely the risk of a trip and fall injury on the concrete guard;
(c)failing to paint or otherwise mark the concrete buffer with reflective paint or other like material adequately or at all so as to warn or adequately warn persons such as the plaintiff travelling between the premises and the adjacent car park of the existence of the concrete guards;
(d)failing to conduct any inspection and/or maintenance of the concrete guards adequately or at all so as to ensure that any existing paint or other material present on the concrete guard was sufficient so as to highlight the existence of the concrete guard tom persons such as the plaintiff;
(e)failing to illuminate the adjacent car park area adequately so as to ensure that the concrete guards were readily visible;
(f)failing to warn the plaintiff adequately or at all of the existence of the concrete guards; and
(g) failing to warn the plaintiff adequately or at all of the risk of injury from tripping and/or falling over the concrete guard.
14. In consequence of the negligence of the first and second defendants, the plaintiff suffered personal injuries including the following:
(a) fracture to the neck of the right radius;
(b) swollen elbow joint;
(c) grazes to body and neck;
(d) considerable and continuing pain;
(e) permanent partial disability of between 9 and 11 per cent loss of efficient function of the right upper limb; and
(f) psychiatric illness.
General Damages
15. In consequence of the negligence of the first and second defendants, the plaintiff suffered loss and damages including the following:
(a) extensive medical treatment, including physiotherapy and rehabilitation;
(b) schooling interruption;
(c) permanent partial disability of between 9 and 11 per cent loss of efficient function of the right upper limb;
(d) pain and suffering; and
(e) loss of amenities. $155,000.00
[etc. Providing full particulars of claims for each head of damage.]
The plaintiff claims the following relief:
$......................damages together with interest under s 58 of the Civil Proceedings Act 2011 and costs.
Signed: ............................
Description: Solicitors for the plaintiff
NOTICE AS TO DEFENCE
Your defence must be attached to your notice of intention to defend.
Notes for LWB431 Civil Procedure Students
Please note the provisions of the Civil Liability Act 2003 (CLA).
Section 61 CLA - General damages are now calculated in accordance with the ISV scale contained in the Civil Liability Regulation 2003. Section 62 CLA shows how general damages are to be calculated. See reg. 6A and Schedule 6A of the Civil Liability Regulation 2003.
Section 60(1) CLA - there can be no interest awarded on general damages.
Please also note the limitations on awards for future economic loss contained in s 54 CLA. Statutory maximum of 3 times average weekly earnings.
Also note s 59 damages for gratuitous services limitation no damages allowed unless services provided for at least 6 hours per week and at least 6 months.
500.1 Negligence upon the highway
SUPREME COURT OF QUEENSLANDREGISTRY:NUMBER:
Plaintiff:JOHN SMITH ANDFirst Defendant:JOHN JONES ANDSecond Defendant:GENEROUS INSURANCE LTD.
STATEMENT OF CLAIM
1.The plaintiff was at all material times the driver of a [description of vehicle] registered number [registered number].2.The first defendant was at all material times the owner and driver of a [description of vehicle] registered number [registered number].3.The [vehicle of the defendant] was at all material times the subject of a contract of insurance pursuant to the provisions of the Motor Accidents Insurance Act 1994, the licensed insurer of that vehicle being the second defendant, who is a proper defendant to these proceedings pursuant to s52 of the Motor Accidents Insurance Act 1994.4.The first defendant was at all material times an insured person, in relation to the [name of vehicle], as defined in the said Act.5.At about [time] am on [day] the [date]day of [month] [year], the plaintiff was driving the said [plaintiff's vehicle] in a generally northerly direction along the [give details of location, for example: at a point approximately 1 kilometre south of King John Creek in the said state.]6.At that time on that date, the defendant was driving the said [defendant's vehicle] in a southerly direction along the said highway.7.At that time on that date, at a point [give details of the site of the collision, for example: approximately 1 kilometre south of King John Creek] the [defendant's vehicle] collided with the [plaintiff's vehicle].8.That collision was caused by the negligence of the defendant:
PARTICULARS
(i)failing to keep any or any proper lookout;(ii)driving at a speed excessive in the circumstances;(iii)driving whilst so intoxicated by alcohol that he was unable properly to control the [vehicle](iv)driving on the wrong side of the road;(v)driving the [vehicle] upon the right side of the centre line of the carriageway when that vehicle was approaching the crest of a grade, where the defendant's view was obstructed, so as to create a hazard, in breach of regulation 25 of the Traffic Regulation 1962. 9.The plaintiff suffered a compound fracture to the L1 vertebrae and whiplash injury to the neck.10.As a result of the negligence of the first defendant the plaintiff claims damages for personal injuries against the first and second defendants, particulars of which are as follows:General Damages
PARTICULARS
The plaintiff suffered a compound fracture to the L1 vertebrae and whiplash injury to the neck. Since the accident he has suffered from regular back pain and has been prevented from performing any heavy work. He is obliged to take medication for back pain. The plaintiff has been assessed by Dr Curtis as having a 2.5% impairment to the whole person resulting from his neck injury, attributable to the accident, and having regard to the lumbar spine an impairment of 5% attributable to the effects of the fracture. The plaintiff has experienced a loss of amenities.
$50,000.00
Interest on General Damages
PARTICULARS
The plaintiff claims interest at 2% on $20,000 for 2.8 years.
$1,120.00
Past Economic Loss
PARTICULARS
Prior to the accident the plaintiff was working 23 days per month as a travelling salesman and has been reduced to working 9 days per month. He is obliged to travel from Gympie to Central Queensland and North Queensland. As the strain of doing so has affected his ability in his work, with the reduced number of days per month he is able to work, and having regard to the fact that he is paid higher commission for North Queensland than for Central Queensland, he has suffered substantial past economic loss.
$50,000.00
Interest on Past Economic Loss
PARTICULARS
The plaintiff claims interest at 5% for 2.8 years on $50,000.
$7,000.00
Future Economic Loss
PARTICULARS
The plaintiff now works for only 61% of the time he worked before the accident (having regard to him now working 9 days per month as compared to the 23 per month he formerly worked). The plaintiff is now 52 years of age and would ordinarily be entitled to the old age pension in 13 years time. If the present loss were calculated as applying to all of that time then the application of the 5% discount tables would produce a figure of $264,554 for future economic loss. However, Dr Curtis, orthopaedic surgeon says that his present lumbar condition would have been reached in 10 years from the accident. On that analysis Dr Curtis would permit 7.5 years economic loss from the present. On the 5% tables this would amount to $169,957. Discounting this sum by 15% for contingencies gives a figure of:
$144,478.75
Gratuitous Domestic Assistance
PARTICULARS
For the first two weeks following the accident the plaintiff's wife spent two hours per day assisting him in and out of bed, with washing, dressing and massaging his back. By the third week she was assisting him for about one hour per day. At home she massages his neck and back every night for half an hour and in the garden performs mowing and weeding. He will in the future require assistance with gardening and other domestic tasks. The claim for the past and the future is:
2 hours per day for 2 weeks (28 hours):$280.001 hour per day for 7 days:$70.00Future gardening etc:$5,000.00Total:$5,350.00TOTAL:$257,948.75
11.The plaintiff has given notices in compliance with s37 of the Motor Accident Insurance Act 1994.The plaintiff claims the following relief:$257,948.75 damages together with interest pursuant to s47 of the Supreme Court Act 1995 and costs.Signed:........Description:This pleading was settled by Mr A B Smith of Counsel.
500.5 Statement of claim master servant action
SUPREME COURT OF QUEENSLANDREGISTRY:NUMBER:
Plaintiff:JOHN SMITH ANDFirst Defendant:JOHN JONES ANDSecond Defendant:GENEROUS INSURANCE LTD.
STATEMENT OF CLAIM
1.The plaintiff was born on the [day] day of [month] [year]. She was at the material time a [bar attendant (casual)] at the [name of employer] Club and a partner in the partnership of [name of partnership], which partnership conducted a [hairdressing salon].2.The defendant was at all material times a company incorporated according to law.3.The defendant was at all material times the employer of the plaintiff.4.It was a term of a contract of employment between the plaintiff and the defendant and/or it was the duty of the defendant to take all reasonable precautions for the safety of the plaintiff while she was carrying out her assigned work, not to expose her to any risk of damage or injury of which it knew or ought to have known, to provide and maintain safe and adequate plant and equipment, to take reasonable care that the place at which the plaintiff carried out her assigned work was safe, and to provide and maintain a safe and proper system of work.5.The premises of the said club were at all material times a workplace within the meaning of s 9 of the Workplace Health and Safety Act 1995.6.Pursuant to s28 of the Workplace Health and Safety Act 1995 the defendant had an obligation to ensure the workplace health and safety of the plaintiff.7.Pursuant to s30 of the Workplace Health and Safety Act 1995 the defendant had obligations: (a)to ensure the plaintiffs risk of injury from the workplace was minimised; (b)to ensure the plaintiffs risk of injury from any plant or substance provided in the workplace was minimised.
8.On the [day] day of [month] [year], the plaintiff was in the course of her employment, carrying out her duties as a [bar attendant (casual)] at the said club.9.Whilst she was so engaged, the plaintiff attempted to lift a carton of stubbies in the coldroom in the said club, and to carry it from the coldroom to the bar.10.In attempting to do so, the plaintiff slipped and fell upon the floor of the coldroom, injuring her right knee.11.The plaintiff's fall was caused by negligence on the part of the said club in the discharge of its said duty to the plaintiff, and also by a breach of a statutory duty on the part of the said club:
A. PARTICULARS OF NEGLIGENCE
(i)Failing to take any or any adequate precautions for the safety of the plaintiff whilst she was engaged in carrying out her assigned work; (ii)exposing the plaintiff to a risk of damage or injury of which the club knew or ought to have known; (iii)failing to provide and maintain for the plaintiff's use safe and adequate fittings and equipment; (iv)failing to ensure that the place at which the plaintiff carried out her assigned work was safe; (v)failing to provide and maintain a safe and proper system of work; (vi)failing to conduct any or any proper or adequate or timely inspection of the plaintiff's workplace when a reasonably prudent person would have done so; (vii)failing to give to the plaintiff any or any proper or adequate or timely warning as to the dangers associated with her employment in the said place of work when a reasonably prudent employer would have done so; (viii)failing, when it knew or ought to have known that the floor of the coldroom became wet from time to time, to provide a safe and adequate floor covering therefore, namely a floor covering which would not become unduly slippery when wet; (ix)causing, permitting or allowing moisture to accumulate upon the floor of the said coldroom when it knew or ought to have known that this would or might make the floor unduly slippery, and that the plaintiff was likely to be injured thereby; (x)requiring the plaintiff to lift and carry from the coldroom cartons of stubbies, when it knew or ought to have known that the carrying of such a load by a female, upon the floor of the coldroom as it then existed, was likely to create a risk of slipping upon the floor, particularly if the floor was wet; (xi)failing, in breach of sections28 and 30 of the Workplace Health and Safety Act 1995, to ensure that the surface of the coldroom had an even, unbroken and slip-resistant surface; (xii)failing to carry out any or any proper investigation or examination of the floor of the coldroom, in order to determine whether it was safe, under the circumstances of the work carried out in the coldroom, for employees to lift cartons of stubbies and carry them; (xiii)failing, in breach of sections28 and 30 of the Workplace Health and Safety Act 1995, to maintain the floor of the coldroom in a clean and tidy condition, and to keep it free of accumulations or deposits of material, namely moisture, likely to cause injury to or be injurious to the health of the plaintiff.
B. PARTICULARS OF BREACH OF STATUTORY DUTY
(i)Failing, in breach of sections28 and 30 of the Workplace Health and Safety Act 1995, to ensure that the surface of the coldroom was an even, unbroken and slip resistant surface; (ii)failing, in breach of sections28 and 30 of the Workplace Health and Safety Act 1995, to maintain the floor of the coldroom in a clean and tidy condition, and to keep it free of accumulations or deposits of material, namely moisture, likely to cause injury to or be injurious to the health of the plaintiff. 12.As a result of the plaintiff's fall she suffered a fracture of the right patella and damage to the medial and lateral ligaments. 13.As a result of the negligence of the defendant, the plaintiff claims damages for personal injuries against the defendant, particulars of which are as follows:
14.The plaintiff has given notices in compliance with s37 of the Motor Accident Insurance Act 1994.The plaintiff claims the following relief:$257,948.75 damages together with interest pursuant to s47 of the Supreme Court Act 1995 and costs.Signed:........Description:This pleading was settled by Mr A B Smith of Counsel.
500.10 Statement of claim Professional (medical) negligence
REGISTRY:NUMBER:
Plaintiff:MARY SMITHDefendant:JOHN BROWNSecond Defendant:BILL BLACK
STATEMENT OF CLAIM
1.The first defendant is an [orthopaedic specialist] carrying on practice at [address] in the state of Queensland.2.The second defendant is a [radiologist] carrying on practice at [address] in the state of Queensland.3.On the [day] day of [month] [year], the plaintiff consulted the first defendant, complaining of back pain.4.The first defendant examined the plaintiff, and on the [day] day of [month] [year] referred her to the second defendant.5.The second defendant carried out X-rays of the plaintiff's back on the [day] day of [month] [year].6.The second defendant carried out X-rays, and a report thereon, to the first defendant.7.The first defendant diagnosed the plaintiff as suffering from a muscle sprain and assured her that it would resolve with physiotherapy.8.In reliance upon the said advice, the plaintiff underwent physiotherapy.9.The plaintiff's back pain was not cured by physiotherapy.10.The plaintiff in fact, at the time of her consultation with and examination by the first defendant, and at the time of the X-ray examination and report by the second defendant, and at the time of her further consultation with the first defendant, suffered from a chondrosarcoma.11.Both the first defendant and second defendant failed to detect or diagnose the chondrosarcoma.12.The chondrosarcoma was not in fact detected for some three years, by which time it had grown appreciably from its size when the plaintiff consulted the first defendant and second defendant.13.The plaintiff underwent operative treatment in 1991 for the removal of the chondrosarcoma, and that operation required the removal of a large amount of tissue from the area immediately adjacent to the plaintiff's lumbar spine, and the removal of bone from the lumbar spine itself.14.By reason of the removal of the chondrosarcoma, and a sufficiently wide margin of unaffected tissue and bone around it, the plaintiff's spinal canal was penetrated, and her spinal cord damaged, leaving her a paraplegic.15.The plaintiff's paralysis was caused by the negligence of the first defendant and second defendant, or one or other of them.
PARTICULARS
(i)Failing to detect the presence of the chondrosarcoma, when the X-ray examination showed a notable deformity or abnormality. (ii)failing to arrange either a CT scan, or an MRI of the plaintiff's spine, when the X-ray which had been taken showed a mass; (iii)failing to arrange for further medical examination of the plaintiff, and for surgery upon her, when a reasonably prudent medical practitioner would have done so immediately upon seeing the X-rays taken by the second defendant; (iv)failing, if unable to identify the nature of the mass visible upon the X-ray taken by the second defendant, to arrange for a CT scan, or MRI, in order to identify the mass properly, and to ascertain its exact dimensions; (v)failing to warn the plaintiff, upon the return of the x-ray, that it was advisable that further investigations be carried out, having regard to the degree of risk; (vi)failing to obtain the informed consent of the plaintiff to the surgery referred to in paragraph 13 above, by not warning them of the risk of spinal cord damage associated with surgery, and not informing them of the option of more conservative treatment.(insert particularised claim for damages in the manner of paragraph 10, of first negligence precedent above)
500.15 Statement of claim negligence causing economic loss
REGISTRY:NUMBER:
Plaintiff:JOHN SMITHDefendant:JOHN BROWN
STATEMENT OF CLAIM
1. At all material times: (a)the plaintiff was the owner of an oil terminal on the northern shore of Moreton Bay. (b)Australian Oil Refining Pty Ltd (AOR) was the owner of a pipeline laid in the bed of Moreton Bay. (c)AOR was the owner of an oil refinery at [address], on the southern shore of Moreton Bay. (d)the pipeline connected the oil refinery to the oil terminal. (e)the pipeline was used to carry products of the refinery to the terminal. (f)by the agreement between the plaintiff and AOR:(i)the plaintiff supplied crude oil to the refinery for processing;(ii)the refined product was delivered to the Plaintiff either into a vessel at the AOR Wharf or through the pipeline to the plaintiff's terminal.(iii)the refined product carried through the pipeline was the property of the plaintiff; and(iv)the risk of damage or loss rested with AOR. 2. On the night of 2526 October 1999, the defendant's vessel was being used to dredge a deep water channel in Moreton Bay.3. The defendant knew: (a)of the situation of the pipeline; (b)that the pipeline carried oil or petroleum products; (c)that it linked the AOR refinery on the southern shore of Moreton Bay with the plaintiff's terminal on the northern shore of Moreton Bay.
4. The defendant knew or ought to have known: (a)that the pipeline carried refined petroleum products from the refinery to the terminal; and (b)that the oil was used by the plaintiff in its business operations as an oil company.
5. The defendant could reasonably foresee that a severance and/or damage to the pipeline would result in: (a)the loss of oil from the pipeline; (b)the necessity to provide alternative transport and delivery arrangements; (c)the necessity to provide alternative delivery arrangements.
6. In the premises the defendant owed a duty of care to the plaintiff.7. On the night of 2526 October 1999 oil belonging to the plaintiff was flowing through the pipeline.8. At the time and aforesaid, the defendant so negligently navigated the dredge that it severed and/or damaged the pipeline.9. The severing and/or damage to the pipeline as aforesaid caused economic loss to the plaintiff.
PARTICULARS
(a)loss of oil from the pipeline $200,000;(b)additional costs in transporting by means other than the pipeline products from the refinery to the terminal $100,000;(c)costs of incidental capital works for receiving those oil products $100,000. 10. The plaintiff claims $400,000 damages for negligence from the defendant together with costs and interest pursuant to s 47 of the Supreme Court Act 1995.
Things to Allege in Breach of Contract
Need to show: That a contract existed; Offer Acceptance Consideration Intention to create legal relations Certainty Capacity Was the contract partly in writing and partly oral? That a term was breached; If an express term, which clause If an implied term: On what basis can it be implied; and Business efficacy? Course of dealing? Incorporation by reference to another document? What is the actual wording of the implied term Damage suffered as a result of breach. The claim for relief should state the total of the plaintiffs claim together with interest pursuant to s 58 Civil Proceedings Act 2011 from 9 July 2012 to the date of judgment and costs. Common Law action for recovery of debt pursuant to Oral contract Sale of Goods Act 1896 s 50 maintain action against buyer for price of goods
Other documents to request:Other documents required question:Breach of contract Purchase Orders Delivery Notes (signed?) including invoices for purchase of the materials, Letters of demand and dunning notices evidence of payment of the hardware store account, emails, text messages, call logs a copy of the handwritten quote and design, a copy of the terms and conditions, a copy of the advertisement(s) any photos or other evidence to show the state of [x] at the time of [y] any trade qualifications of person a copy of the work diary and notes made Facebook, website, and social mediaInjury Medical evidence medical reports etc Photos of site Photos of injury Invoices and costs of treatments CCTV footage of accident
Examples of Contract Precedents
CONTRACT PARTLY IN WRITING, PARTLY ORAL (ALSO USES SEPA)
DISTRICT COURT OF QUEENSLAND
REGISTRY: BRISBANENUMBER: D 212 / 2010
PLAINTIFF:CONCRETO PTY LTD (ACN 000 111 222)
ANDDEFENDANT:NED NEWTON
CLAIM
The Plaintiff claims:
$708,000.00 for money owing by the defendant to the plaintiff for goods sold & delivered by the plaintiff to the defendant at the defendants request on or about [date];In the alternative, $708,000 pursuant to Section 50 of the Sale of Goods Act 1896 (Qld);Interest pursuant to Supreme Court of Queensland Act 1995 (Qld); andCosts.
[ liquidated damages plus interest and costs arising out of a breach of contract for the sale of equipment made orally and/or in writing between the Plaintiff and the Defendant on or about January 2010.]
The Plaintiff makes this claim in reliance on the facts alleged in the attached Statement of Claim.
ISSUED WITH THE AUTHORITY OF THE DISTRICT COURT OF QUEENSLAND
And filed in the Brisbane Registry on .day of .. 2010.
Registrar
To the Defendant:TAKE NOTICE that you are being sued by the Plaintiff in the Court. If you intend to dispute this claim or wish to raise any counterclaim against the Plaintiff, you must within 28 days of service upon you of this claim file a Notice of Intention to Defend in this registry. If you do not comply with this requirement judgement may be given against you for the relief claimed and costs without further notice to you. The Notice should be in Form 6 to the Uniform Civil Procedure Rules. You must serve a sealed copy of it at the Plaintiffs address for service shown in this claim as soon as possible.Address of Registry:Law Courts Complex, George Street, Brisbane.If you assert that this Court does not have jurisdiction in this matter or assert any irregularity you must file a Conditional Notice of Intention to Defend in Form 7 under Rule 144, and apply for an order under Rule 16 within 14 days of filing that Notice.If you object that these proceedings have not been commenced in the correct district of the Court, that objection must be included in your Notice of Intention to Defend.
[THIS GOES IN THE FOOTER:]ClaimSW Smart & Smart Filed on behalf of the PlaintiffSolicitorsForm 2, r.22.10th Floor, 100 Queen StBRISBANE QLD 4000Ph: (07) 5555 4444Fax: (07) 5555 4445PARTICULARS OF THE PLAINTIFF:
Name:Concreto Pty Ltd (ACN000111222) Residential or business address:16 Smith Street, West End, BRISBANE, QLD 4001
Solicitors name:Bill BloggsAnd firm name:SW Smart & Smart Solicitors business address:10th Floor, 100 Queen St, BRISBANE QLD Address for service:c/- SW Smart & Smart 10th Floor, 100 Queen St, BRISBANE QLDDX (if any):Telephone:(07) 5555 4444Fax:(07) 5555 4445E-mail address (if any):
Signed:
Description:Solicitors for the Plaintiff
Dated:
This claim is to be served on:Ned Newtonof:45 Bayside StreetBilsworth, New South Wales NOTICE TO DEFENDANTPursuant to section 16 of the Service and Execution of Process Act 1992Please read this notice and the attached document very carefully If you have any trouble understanding them, you should get legal advice as soon as possible.Attached to this notice is a Claim (the attached process) issued out of the District Court of Queensland. Service of the attached process outside Queensland is authorised by the Service and Execution of Process Act 1992. Your rights If a Court of a State or Territory other than Queensland is the appropriate court to determine the claim against you set out in the attached process, you may be able to have the proceeding stayed by applying to the District Court of Queensland. You must also file a Conditional Notice of Intention to Defend in Form 7 under Rule 144 of the Uniform Civil Procedure Rules 1999 (Qld), and apply for an order under Rule 16 of those Rules within 14 days of filing that Notice.If you think the proceeding should be stayed or transferred, you should get legal advice as soon as possible. Contesting this Claim If you want to contest this claim, you must take any action set out in the attached process as being necessary to contest the claim.If you want to contest this claim, you must also file a Notice of Intention to Defend in the District Court of Queensland. You have only 28 days after receiving the attached process to do so. The Notice of Intention to Defend must contain an address in Australia where documents can be left for you or sent to you.
DISTRICT COURT OF QUEENSLAND
REGISTRY: BRISBANENUMBER: D 212 / 2010
PLAINTIFF:CONCRETO PTY LTD (ACN 000 111 222)
AND
DEFENDANT:NED NEWTON
STATEMENT OF CLAIM
Filed in the Brisbane Registry on:
This claim in this proceeding is made in reliance on the following facts
1. The Plaintiff in this proceeding is [name], at all material times: (a) carried on business as a concrete agitator supplier; (b) had its registered office at 16 Smith Street, West End, Brisbane in the State of Queensland; (c) was a company duly incorporated; and(d) was capable of suing and being sued in its company name.
2. At all material times, the Defendant [name] carried on business (a) as a building and construction contractor; and(b) from premises situated at 45 Bayside Street, Bilsworth in the State of New South Wales.
3. In or about January 2010, the Plaintiff through its director Sam Smith and the Defendant made a contract which comprised an agreement:
(a) partly in writing; and (b) partly oral.
Statement of ClaimSW Smart & Smart Filed on behalf of the PlaintiffSolicitorsForm 16, rr. 22, 14610th Floor, 100 Queen StBRISBANE QLD 4000Ph: (07) 5555 4444Fax: (07) 5555 4445
4. Insofar as the contract was in writing, it comprised:
(a) A letter dated 6 January 2010 mailed from the Defendant to the Plaintiff on that same date; (b) A delivery docket dated 16 February 2010 handed by the Plaintiff by its employees or agents to the Defendant or its agents at 10 am on that same date; (c) An invoice (No. 8816) dated 18 March 2010 mailed by the Plaintiff to the Defendant on or about 16 March 2010; and (d) A copy of that same invoice (No. 8816 dated 18 March 2010) mailed by the Plaintiff to the Defendant on or about 16 April 2010.
5. Insofar as the contract was oral, it comprised a conversation on or about 28 January 2010 between the Plaintiff by its director Sam Smith and the Defendant that took place when they met at the Plaintiffs depot located at 222 Sherwood Road, Sherwood in the State of Queensland (the Plaintiffs Sherwood depot).
6. At this meeting on or about 28 January 2010 at the Plaintiffs Sherwood depot:
(a) the Defendant inspected a number of 7 centimetre and 5 centimetre concrete agitators; and (b) the Plaintiff through its director Sam Smith orally agreed to sell to the Defendant a number of them as set out in paragraph 7 below; and (c) the Defendant orally agreed to buy from the Plaintiff a number of them as set out in paragraph 7 below.
7. It was an oral term of the contract that:
(a) The Plaintiff would by its employees or agents deliver to the Defendants business premises on or before 30 March 2010
(i) Four (4) 7 centimetre concrete agitators (comprising chassis, mixing bowls and driving motor) as inspected at a price of $28,000.00 each, totalling $112,000.00; and (ii) Four (4) 5 centimetre concrete agitators (comprising chassis, mixing bowls and driving motor)as inspected at a price of $24,000.00 each, totalling $96,000.00
[this equipment set out in sub-paragraphs (i) and (ii) collectively being termed the equipment]; and
(b) The Defendant would pay for the equipment in full and final settlement of the account within thirty (30) days of the delivery date.
8. In accordance with the oral term referred to in paragraph 7 of this Statement of Claim, the Plaintiff on 16 February 2010:
(a) by its employees or agents delivered the equipment to the Defendants business address at 45 Bayside Street, Bilsworth in New South Wales; and
(b) by its director Sam Smith caused an invoice of the same date in respect of the equipment to be mailed to the Defendants registered office.
9. The Defendant has failed or refused to pay the amount owing on that invoice of $208,000.00.
10. Subsequently the Plaintiff by its director Sam Smith caused:
(a) a reminder invoice dated 18 March 2010 to be mailed to the Defendants registered office on or about that date; and
(b) a further reminder invoice dated 18 April 2010 to be mailed to the Defendants registered office on or about that date.
11. The Defendant has failed or refused to pay the amount of $208,000.00 shown on those reminder invoices.
12. On or about 1 June 2010, the Plaintiff served a letter of demand on the Defendant.
13. The Defendant has failed or refused, in breach of the contract set out in paragraphs 1 to 8 inclusive of this Statement of Claim, to pay the amount owing of $208,000.00.
14. As a result of the Defendants breach, the Plaintiff has suffered loss or damage in the amount of $208,000.00 pursuant to the contract set out in paragraphs 1 to 8 inclusive of this Statement of Claim.
The Plaintiff claims the following relief:
The sum of $708,000.00 for liquidated damages arising out of the breach of contract, plus interest at the rate of ten per cent (10%) per annum pursuant to section 47 of the Supreme Court Act 1995 from 16 March 2010 to the date of judgment, and costs.
Signed:
Description:Solicitors for the Plaintiff
This pleading was settled by Mr R. Copp of Counsel
NOTICE AS TO DEFENCE
Your defence must be attached to your Notice of Intention to Defend.
NOTICE UNDER RULE 150(3)
The Plaintiff claims:
$ 708,000.00 in damages; $ 7,080.00 for interest; and costs of issuing the claim and this statement of claim.
This proceeding ends if you pay those amounts before the time for filing your Notice of Intention to Defend ends. If you are in default by not filing a Notice of Intention to Defend within the time allowed, the Plaintiff is entitled to claim additional costs of $270.00 being costs of entering judgment in default.
180.50 Contract terms implied by conduct
REGISTRY:NUMBER:
Plaintiff:JOHN SMITHDefendant:JOHN BROWN
STATEMENT OF CLAIM
1.At all material times the plaintiff was the owner of a number of mobile cranes which it hired out for money. 2.At all material times the defendant carried on business as a building contractor. 3.In [month] [year] the defendant hired from the plaintiff an Hatachi ten tonne mobile crane and driver to be used by the defendant in the course of the defendant's business (the relevant hire). 4.The hiring referred to in the preceding paragraph came about when the defendant's manager telephoned the plaintiff's manager and requested the plaintiff to supply a crane and driver for the day. 5.In the conduct of its business, the plaintiff ordinarily accepted orders by telephone for the hire of its cranes and at the conclusion of the hire sent to the hirer a document entitled confirmation of order on which was set out the terms and conditions of the hire as well as a record of the duration of the hire and any accrued monetary charges. 6.On many prior occasions the defendant had hired cranes from the plaintiff. At the conclusion of each hire the plaintiff sent the defendant a confirmation of order document which contained the following term: "The customer [defendant] hereby indemnifies and agrees to keep indemnified the contractor [plaintiff] its servants and agents against all actions demands claims suits losses and or damages sustained by the contractor [plaintiff]as a result of any damage caused to any person or property as a result of the contractor [plaintiff] carrying out this contract whether caused by any act default or negligence of the contractor [plaintiff] its servants or agents."Particulars of the previous occasions are:(a)[details](b)[details](c)[details] 7.When hiring the crane on the occasion of the relevant hire, the defendant by its servant knew that the plaintiff hired its cranes on the terms and conditions set out on the said confirmation of order documents. 8.By continuing to conduct its business with the plaintiff on this basis, the defendant assented to the incorporation of the term set out in paragraph 6 above into the contract made between the plaintiff and the defendant on the occasion of the relevant hire. 9.In the performance of the relevant hire, the plaintiff's crane collided with a motor vehicle driven by one [name] causing [injured party's name]to be injured and damage to the motor vehicle. [Injured party's name] has obtained judgment against the plaintiff in respect of the injuries to his person and the damage to his property. 10.The plaintiff claims an indemnity from the defendant in respect of its liability to [injured party's name] pursuant to the term set out in paragraph 6 above.
NOTE: The facts in this Precedent have been taken substantially from Eggleston v Marley Engineers Pty Ltd (1979) 21 SASR 51 . Before a term contained in a printed form will be incorporated into a contract made between the author of the form and one of its customers, a customer must be aware of the term or at least of the fact that contractual terms appear on the form; the form must be a contractual document; and the previous course of dealing between the parties must have been such as to give rise to the conclusion that the customer contracted on the basis that the form and its terms would regulate their contractual relation: Eggleston v Marley Engineers Pty Ltd, above ; Hardwick Game Farm v Suffolk Agricultural Poultry Producers Assn [1969] 2 AC 31 at 90; [1968] 2 All ER 444 . Frequently the term which is sought to be incorporated into a contract will be a limitation or exemption clause which will be pleaded by way of defence rather than as the basis for a claim as in this example. The essentials of the pleading will remain the same. It will be necessary to allege the contractual nature of the document; the customer's knowledge of the terms and the fact that it contracted on the basis of the form.
DISTRICT COURT OF QUEENSLAND
REGISTRY: BRISBANE NUMBER: D 212 / 0
PLAINTIFF:CONCRETO PTY LTD (ACN 000 111 222)
AND
DEFENDANT:NED NEWTON
STATEMENT OF CLAIM
Filed in the Brisbane Registry on:
This claim in this proceeding is made in reliance on the following facts
15. The plaintiff is a company duly incorporated and having its registered office at 16 Smith Street, West End, Brisbane in the State of Queensland.
16. On 20 January 200, the Plaintiff [through its director Sam Smith] orally agreed to sell and the defendant orally agreed to buy from the plaintiff the following goods, as inspected by the defendant, at an agreed price of $28,000.00 each: 4 x 7 cubic metre capacity concrete agitators (comprising cassis, mixing bowls and driving motor)
17. On 20 January 200, the Plaintiff [through its director Sam Smith] orally agreed to sell and the defendant orally agreed to buy from the plaintiff the following goods, as inspected by the defendant, at an agreed price of $24,000.00 each: 4 x 5 cubic metre capacity concrete agitators (comprising cassis, mixing bowls and driving motor)
18. It was a term of the agreement that the plaintiff would arrange delivery of the concrete agitators (goods described in paras 2 and 3 of this statement of claim) to the defendant at 45 Bayside Street, Bilworth in New South Wales on or before 30 March 200
19. It was a term of the agreement that the buyer must pay each invoice issued for the sale of the goods within 30 days of the date of the invoice.
20. On 16 February 200... the plaintiff delivered the concrete agitators (goods described in paragraphs 2 and 3 of this statement of claim) to the defendant, in compliance with its obligations under its agreement with the defendant, and invoiced the buyer on that date accordingly.
7. The defendant has failed to pay the total price, as invoiced, of $208,000.00
The plaintiff claims the following relief:
The sum of two hundred and eight thousand dollars ($208,000.00) together with interest on that amount under section 47 of the Supreme Court Act 1995 (Qld) at X.per centum per annum from 16 March 200.. to the date of judgment.
Signed:
Description:
[This pleading was settled by ..of Counsel]
NOTICE AS TO DEFENCE
Your defence must be attached to your notice of intention to defend.
NOTICE UNDER RULE 150(3)
The Plaintiff claims:
$.............................
![[88733] PLEADINGS](https://static.cupdf.com/doc/110x72/6157fec66be01356805118f9/88733-pleadings.jpg)
