UCPR: pleadings and material facts

Mio Art Pty Ltd v Macequest Pty Ltd & Ors [2013] QSC 211


Jackson J:

[61] This illustrates why and emphasises that, in a case of complexity, it is critical that the pleading allege “all the material facts… but not the evidence by which the facts are to be proved.”[16] Otherwise, the would-be analyst of the pleading is left swimming in a sea of evidentiary facts while trying to identify the material facts for each cause of action. Drowning often follows, at the expense of the intent under UCPR 5 that the proceeding be conducted to “facilitate the just and expeditious resolution of the real issues… at a minimum of expense” and the requirement that “each pleading must… be as brief as the nature of the case permits” under UCPR 149(1)(a).

[62] The “material fact” model of pleading was a reform of the rules of court brought into effect under the Judicature Act 1876 (Qld)[17] for the administration in the one court of the rules of common law and equity. Brevity was the intent, in contrast to the prolix pleadings of common law and particularly equity[18] beforehand. Perhaps the drift of history has caused a loss of focus as to the importance of the purpose of the reform. That said, a lengthy pleading is not necessarily a vice. Where it is prepared with great precision and isolates the issues, there is no cause for complaint.

[63] But where a pleading alleges a lengthy historical account of facts that occurred over an extensive period of a commercial relationship, then particular specific causes of action are pleaded on the basis that the reader is invited to find the relevant material facts for any cause of action in all that has gone before, the price for the death of that hero, brevity, is not paid in the valuable coin of precision. Instead, the reader is invited on a would-be treasure hunt, with the unlikely satisfaction that after looking in every nook and cranny, and trying every combination possible, there will be an Archimedian “Eureka” moment.

[64] Where a pleader has fallen into this error, there is a remedy. It is to require that the pleading identify the material facts for each cause of action. That will exclude those facts which go to another cause of action, as well as any “narrative” non-material facts. A direction can be made, for example, that the pleader separately plead the material facts for each cause of action alleged.[19] But that is not often a remedy which will lead to expedition or a minimum of expense, and so must be used in sparing measure.

[65] At the risk of stating the obvious, it is as well to recall just what a material fact is. In its primary meaning, a material fact is a fact that the plaintiff must prove to succeed in a claim for relief upon a cause of action. The conceptual power of the material fact model of pleading is not recognised often enough. There is a trend to treat this most fundamental of procedural rules as something which is best overtaken by detailed factual and legal submissions. I could not disagree more strongly with that view and I am glad to say that the pleading rules have not been altered to countenance it. There is a place for detailed factual and legal submissions, but it is not as replacement for the identification of the material facts.

[66] The cases have long recognised the negative proposition that if any one material fact is omitted, the pleading of a cause of action is bad.[20] I prefer to look at it from the positive side. If a plaintiff proves all the material facts, it must succeed on the cause of action. Thus the case is reduced to its factual skeleton in law. By adhering to the concept of a material fact in the practice of pleadings, the courts serve the purposes of efficiency and cost-saving which inform the procedural rules. The only issues joined are upon material facts. The only evidence led proves or disproves the material facts. The decision in the case is not affected by the irrelevant and the decision maker is not distracted from the material facts.

[67] This model is based on the concept that the decisional process is ordinarily a judgment following a trial, where the issues of material fact as defined by the pleadings are determined. These days, civil trials are conducted by a judge sitting alone, except in rare cases. But the conceptual model of a trial of the issues of fact, resulting in findings and verdict, is still the basis of the process which can be traced backwards through the common law.

[68] Prior to a trial, the material fact conceptual model may come into play where the facts alleged do not disclose a reasonable cause of action or defence. The procedure upon demurrer no longer exists in civil proceedings, although it is retained in the criminal jurisdiction. Instead, the opposite party may apply to strike out all or part of the pleading on that ground.[21]

[69] As well, the court may strike out a statement of claim or part of a statement of claim if it: has a tendency to prejudice or delay the fair trial of the proceeding; or is unnecessary or scandalous; or is frivolous or vexatious; or is otherwise an abuse of the process of the court.[22] This is the basis of the defendants’ strike out applications.

[70] Alternatively, if the facts alleged are sufficient to disclose a reasonable cause of action but are not supportable as a matter of evidence, the court may intervene upon an application for summary judgment.[23] Although evidence was relied upon by the parties on some points, no party applied for summary judgment on the current applications.

[71] Another relevant interlocutory principle emerges from the material fact model of pleading. The pleading must not oppress a defendant by vague or uncertain allegations, lacking particularity. This principle is applied with rigour where the allegations made against a defendant are of fraudulent or serious misconduct – “fraud must be pleaded specifically and with particularity.”[24] In such a case, more precision is required than in other cases. As well, the proof required is affected, although the standard remains on the balance of probabilities – “the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.”[25] These are venerable principles that are re-expressed and applied in the context of the material fact model of pleading under the rules of court. At their root is the notion that a defendant is entitled to know the case it has to meet at trial.



David Cormack – Brisbane Barrister.

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