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South Australia v Commonwealth (1962) 108 CLR 130.

Dixon CJ

[Page 142] The proceeding now before the Court, as already has been said, is a demurrer by the defendant to a statement of claim.

All that such a demurrer does is to deny the legal sufficiency of the facts alleged in the pleading, that is, the sufficiency to entitle the plaintiff to a legal remedy.

At common law, at the time when the system of common law pleading closed in England, a general demurrer to a count in a declaration formed an apt and almost certain way of ascertaining whether a cause of action was disclosed by the facts stated by the count.

But it was necessary that they should be ultimate and not evidentiary facts.

In equity a demurrer to a bill might have been on any of several grounds but that which would have been material in this case is that the allegations disclosed no equity to any of the relief prayed.

In this Court the procedure of demurrer has been retained but a narrative and not a common law system of pleading has been adopted.

There are certain difficulties now in the practical working of demurrers chiefly because the allegations in a pleading which are pointed at each specific or particular cause of action or ground of defence are not confined within a single definite count or plea.

Further, the rules of pleading do not confine a plaintiff to the relief he had specifically claimed  and this sometimes is a source of embarrassment in deciding a demurrer.

Perhaps the reluctance of a party to amend pending a demurrer because of the rule as to costs should not be left out of account.

But the use of a demurrer, which certainly has been found a speedy and not unsatisfactory procedure in this Court, where causes depending on questions of ultra vires and upon other federal questions of statutory instruments are frequent, presupposes a pleading which is drawn so as to allege with distinctness and clearness the constituent facts of the cause of action or defence set up and which puts aside the temptation to adorn the pleading with evidentiary statements and tendentious legal conclusions.

It is not going too far to say that what justifies demurrer as a means of determining a legal controversy is the supposition that the pleading will contain and contain only a statement of the material facts on which the party pleading relies for his claim or defence and not the evidence by which they are to be proved.

When a court deals with a demurrer it should in strictness discard all statements which are no more than evidentiary and all statements involving some legal conclusion.

It will be necessary to return to these principles when we reach the final question of what cause of action, if any, is disclosed by the pleading.

But before that point is reached the character of the agreement put in suit must be described.


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