Prodedural Defects

QC Mark Dreyfus, representing 6 of the defendants in the Gunns case told the Sydney Herald his primary concern with the initial Statement of Claim. Dreyfus said that: “The statement (of claim) is very long, confused, muddled, deficient in details and parts of it should be struck out…” In the context of the Federal Court of Australia’s ruling in Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487 it is immediately clear how Gunns might have abused the civil process in the compilation of the plaintiff’s claim. The Federal Court ruled that:

“The requirement imposed by FCR O 11, r 2, that a pleading contain a statement in summary form of the material facts on which the party relies, is to be understood by reference to the functions of pleadings. Thus it is a well-established rule that the permitted level of generality of a pleading must depend on the general subject matter and on what is required to convey to the opposite party the case that is to be met…” In other words, the Statement of claim should simply state the cause of action and the facts giving rise to the cause of action.

The defendant should be able to either confirm or deny the claims made in the originating pleadings. The primary purpose for this rule is to familiarize the party against whom the claim is made with the material facts that will be relied on at the trial. A chronology of the events leading up to the final draft of the plaintiff’s Statement of Claim clearly demonstrates that the claim was far from clear. It would appear that even with the ensuing provision of further and better particulars the plaintiff’s claim remained confusing and difficult to respond to effectively.

As seen in the court’s final strike out judgment Gunns had not submitted a “proper, coherrent and intelligilble statement of its case. ” Having to listened to arguments from both sides at the hearing for striking out in July of 2005, the judge, in line with the Federal Court’s ruling in Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487 explained that quite simply the pleadings contained in the Statement of Claim should be narrowed down and simplified to permit a response.

The defendants ought to know exactly what the case is against them and the facts that will be used to substantiate that case. The judge explained that: “It is fundamental to the proper conduct of civil litigation that a defendant be apprised of the case he, she or it has to meet with precision and with such degree of specificity and clarity as will enable a case to be prepared on that defendant’s behalf. ”