Order 8 of the National Court Rules 1983 says a good deal about what a pleading must contain. It is equally clear about what it must not.
Rule 8 — not the evidence
A pleading shall contain only a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved.
Rule 32(2) makes the same point about particulars of negligence: they shall be a statement of the facts, but not of the evidence by which the facts are to be proved.
So: plead that the defendant failed to fence the excavation. Do not plead that three named workers will say the fence was never delivered to site.
Rule 9 — and the costs sanction
Order 8 Rule 9 — a pleading shall be as brief as the nature of the case admits.
Order 4 Rule 17 — where a document is unnecessarily prolix, the costs occasioned by the excess shall be borne by the party using the document.
A forty-page statement of claim that recites correspondence, argues the law and narrates the witnesses’ accounts is not a better pleading than a six-page one that identifies the material facts. It is a worse one — harder to plead to, harder to try, and exposed to Rule 17 on costs and Rule 27 on striking out.
Rule 18 — departure
A party shall not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with his own previous pleading.
Rule 19 preserves the right to plead in the alternative — but that means alternatives advanced together and labelled as such, not a later change of position.
The remedy for a pleading that no longer reflects your case is amendment under Order 8 Division 4, not a fresh inconsistent allegation in the reply. See what a pleading must contain.
Rule 28 — abolished
A party shall not plead the general issue.
The “general issue” was the old plea that denied everything without engaging with anything — the equivalent of “the defendant denies each and every allegation in the statement of claim”.
That is not a defence under these Rules. Rule 21 requires each allegation to be traversed, by denial or by non-admission, or it stands admitted. A blanket denial risks being treated as no traverse at all, and it invites a striking-out application. See the defence and deemed admissions.
Rule 27 — the sanction
(1) Where a pleading —
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or
(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.
(2) The Court may receive evidence on the hearing of an application under sub-rule (1).
| Fault | Ground |
|---|---|
| Facts pleaded do not amount to a cause of action known to law | 27(1)(a) |
| A defence that answers nothing — the general issue | 27(1)(a), with r 28 |
| Pleading so vague the other side cannot know the case | 27(1)(b) — embarrassment |
| Evidence and argument pleaded instead of material facts | 27(1)(b), with rr 8, 9 |
| Fraud alleged without particulars | 27(1)(b), with r 30 |
| Scandalous or irrelevant allegations | 27(1)(b) or (c) |
| Relitigating a matter already decided | 27(1)(c) — abuse of process |
“At any stage” — the application is not confined to the period immediately after the pleading is served, though delay affects the Court’s discretion and the costs order.
Evidence is admissible. Sub-rule (2) distinguishes Rule 27 from the classic demurrer, which was confined to the face of the document.
“The whole or any part” — the Court can excise offending paragraphs and leave the rest standing, which is the usual outcome. And “on terms” ordinarily means leave to replead, with costs. See striking out a pleading.
Order 12 Rule 40 allows the Court to dismiss proceedings that are frivolous or vexatious or an abuse of the process, and Order 12 Rule 38 provides for summary judgment. Rule 27 strikes at the document; those rules strike at the proceeding. See dismissal for abuse of process.
Three more
Rule 6 — no pleading after a reply. A party shall not, except with the leave of the Court, file any pleadings subsequent to a reply. The sequence stops at the reply unless the Court permits more.
Rule 25 — tender without payment in. Where a defence of tender before the commencement of the proceedings is pleaded, the defendant shall bring into Court the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until the amount has been brought into Court. See payment into Court.
Rule 20A(2) — silence about custom. Every pleading which does not state whether or not a rule of customary law is applicable shall be deemed to plead that no rule of customary law is applicable. Omission is not neutral; it is a positive plea.
Sources
- National Court Rules 1983 — O 4 r 17; O 8 rr 6, 8, 9, 18, 19, 20A, 21, 25, 27, 28, 30, 32, Div 4, Div 6; O 12 rr 38, 40
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.