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Pleading

In Cheal Industries PL - Fitzpatrick v Cheal [2012] NSWSC 261. Ward J.

74 The general rule that relief is confined to that available on the pleadings is a rule of procedural fairness. Isaacs and Rich JJ in Gould v Mount Oxide Mines Limited (in liq) (1916) 22 CLR 490 (at 517) referred to this in the following way: 

Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness . Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other issues on fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. 

 

75 The thrust of those observations was repeated more recently by Mason CJ and Gaudron J in Banque Commerciale SA (In Liq) v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279 at 286-287: 

The function of pleadings is to state with sufficient clarity the case that must be met: In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.

 

Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference.

 

76 Modern authorities indicate that the rule is not a technical one. Dawson J in Banque Commerciale said at 296-297:

But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. Special procedures apart, cases are determined on the evidence, not the pleadings.

 

77 The rule confining relief to that which is founded on the pleadings usually falls for consideration in the situation where a party has put an issue into contention in the course of trial that was not pleaded.

Thus, in Nocton v Lord Ashburton (1914) AC 932, cited by Isaacs and Rich JJ in Gould v Mount Oxide Mines , where the issue was whether (where fraud was charged and the charge failed), the plaintiff could nevertheless succeed on a claim of negligence, it was there relevant that there was no injustice to the defendant as " the same evidence would have been required whether the action had been founded on negligence or fraud, and the defence would have been conducted in either case on the same lines" (per Lord Parmoor at 977-978).

78 In Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206, Ipp JA (at 424) set out the following five propositions as to the principles relating to pleadings:

 (a) The rule that, in general, relief is confined to that available on the pleadings secures a party's right to a basic requirement of procedural fairness.

 (b) Apart from cases where the parties choose to disregard the pleadings and to fight the case on additional issues chosen at the trial, the relief that may be granted to a party must be founded on the pleadings.

 (c) It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground an inference that the parties have chosen a different basis to the pleaded issues for the determination of their respective rights and liabilities.

 (d) Acquiescence giving rise to a departure from the pleadings may arise from a failure to object to evidence that raises fresh issues - it is in this sense that "cases are determined on the evidence, not the pleadings".

 (e) While cases are to be decided upon a basis that embraces the "real controversy" between the parties, the real controversy has to be determined in accordance with the principles stated.

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