Legal Index: P
Pleadings — what must be pleaded and with what particularity, what happens to a claim that was never pleaded, and what happens to a defendant who never objected.
Pleadings and particulars
Order 8 of the National Court Rules 1983 governs what a pleading must contain. The consequences of getting it wrong run in both directions — against the party who pleaded badly, and against the party who failed to object.
Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694 (Supreme Court — Amet CJ, Sheehan and Kandakasi JJ)
The decision settles three connected propositions.
(1) Special damages must be pleaded with particulars. Loss of salary or wages and other benefits are special damages, and they ought to be pleaded with particulars. A general claim for damages does not open the door to them.
(2) But a defendant who does not object loses the point. Failure to request further and better particulars, and to take issue on the pleadings, entitles a judge to make awards on the evidence presented despite the lack of foundation in the pleadings. The objection has to be taken at the time.
(3) And a defendant who let judgment go in default cannot revive it. A party who allowed judgment to go by default, and who did not take issue on the pleadings before the National Court, is not at liberty to “hack back” at the lack of pleadings on appeal.
On the substance, the Court held there had been no breach: a purported variation of the written employment contract had not been made in accordance with the contract’s own terms, and the termination was in accordance with the contract. It added that a dismissed employee is under an obligation to mitigate, and that where there was evidence of part-time employment but no evidence of the level of income, no loss had been shown.
Coecon Ltd v National Fisheries Authority [2002] PGNC 144; N2182 (National Court) — decided months before Tole and consistently cited with it. On an assessment of damages a defendant cannot reopen liability, but is not precluded from taking issue on any matter not pleaded in the statement of claim; and where the defendant takes no issue with an unpleaded matter raised at the hearing, the Court may still allow the claim if the evidence supports it.
Mel v Pakalia [2005] PGSC 36; SC790 (Supreme Court) — cites both Tole and Coecon among the governing authorities on an appeal against an assessment of damages following default judgment, and applies them in setting the award aside.
Laki v Alaluku [2000] PGNC 96; [2000] PNGLR 392; N2001 (National Court) — on multi-party claims. It is the mandatory duty of plaintiffs under Order 8 Rule 29 to give the necessary particulars of their claims to each defendant, and each plaintiff must plead with sufficient particularity the claim made against each defendant. Pleadings that were inadequate, too general and in breach of Rule 29 could not support default judgment.
Read together these cases produce a rule that cuts both ways, and litigants on each side regularly misjudge it.
For a plaintiff: plead every head of special damage, with particulars, before trial. Tole means a claim for lost salary that was never particularised is exposed — and Coecon means default or consent judgment does not cure it.
For a defendant: take the pleading point early. Request further and better particulars; object when unpleaded evidence is led. Tole is authority that silence at trial entitles the judge to award on the evidence anyway, and that the point cannot be raised for the first time on appeal.
See what a pleading must contain, particulars, amending a pleading and how damages are assessed.
On the assessment of damages generally, see Legal Index: A; on representative claims, Legal Index: R.