Case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658
Outcome: applied
Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664 Murphy, Wilson, Brennan, Deane and Dawson JJ jointly observed: Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it ( Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) [1916] HCA 81 ; (1916) 22 CLR 490 , at p 517; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial ( Miller v. Cameron [1936] HCA 13 ; (1936) 54 CLR 572 , at pp 576-577; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings ( Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518 ; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) LR 25 Ind App 195, at p 207 ). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed ( Mummery v. Irvings Pty. Ltd. [1956] HCA 45 ; (1956) 96 CLR 99 , at pp 111, 112, 127), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence ( Leotta v. Public Transport Commission (N.S.W.) (1976) 9 ALR 437 , at p 446; 50 ALJR 666 , at p 668). Burnett Water is concerned not to disregard the pleadings and to fight the case on the issues so identified. To that end, in November last year it requested the Conservation Council to furnish particulars of the statement of claim. The Conservation Council answered that request but not in a way which Burnett Water submits was sufficient. That the Court has power to order the furnishing of further and better particulars of a statement of claim is not in doubt. Order 12 r 5 of the Federal Court Rules confers such power. The question is whether in the circumstances that power should be exercised or whether Burnett Water has sought to play what was memorably described in the 12 th (1975) Edition of Bullen &amp; Leake and Jacob's Precedents of Pleadings (at 113-114) as "the particulars game"? The observations then made by the learned authors concerning particulars and that "game" remain true today: The tendency of modern practice is to give full particulars as may be necessary of the matters pleaded, and to respond to a request for further and better particulars of pleading more fully than heretofore. There is a growing understanding among practitioners that giving the necessary particulars of pleading not only helps in preparing a case and in stating it with certainty and confidence but also manifests the strength of a party's case, while withholding particulars suggests a possible weakness in the case and a desire to spring surprise as to the oral evidence at the trial. On the other hand, practitioners are also aware, from their knowledge and experience, that particulars of pleadings beyond those that are really necessary may fetter the hands of a party too closely, or lay on him an increased burden of proof, or may disclose more than is tactically wise of his case at that stage. Hence there quite often develops a struggle, which goes under the popular title of the "particulars game," under which one party seeks to compel the opposite party to reveal more fully the case which he has pleaded and to tie him down to narrower issues, whereas the opposite party seeks to keep the issues as wide and as general as possible and to withhold as much of his own case as he can. [Footnote references omitted]