Case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658
Outcome: cited
The pleading should enable the respondent to know, with sufficient clarity, the case which it is required to meet: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664. 25 As indicated in [4] above, the SOC leaves a good deal to be desired in both its form and content. On the other hand, I hasten to add that I do not think that all the pleadings are so embarrassing as to warrant the SOC being struck out as is sought in the motion. A number are, in my view, quite clear in enabling the respondent to know the case it has to meet; others can be raised to that standard by the provision of further and better particulars to those already provided; while some cannot be cured without being amended or re-pleaded. 26 I deal with a number of the pleadings which have been put in issue and others I have identified in the numerical order of the SOC. All paragraph references are to the SOC unless otherwise stated: (1) Paragraph [6] is grammatically wrong and needs to be amended. (2) Paragraphs [8], [9] and [10] are confusing as to what constitutes 'the Contract': is it confined to the instrument of 7 March 2005 as defined in (iv) to para [8] or does it also extend to the content of the Uechritz Conversation as suggested in the particulars to para [9]? Additionally, one does not accept a contract; a contract comes into existence only upon acceptance of an offer. These paragraphs are embarrassing and should be struck out; and as presently framed, they make subsequent paragraphs embarrassing. (3) Paragraph [17] refers to 'paragraphs 14 and 16' and in the next breath to 'paragraphs 14 to 16'. It also refers to 'the Termination Date' which is defined in para [13] as '7 March 2008' and in para [15] as '7 March 2007'. Paragraph [17] needs to be amended. (4) Paragraph [32] is confusing and arguably inconsistent with the claims at paras [33] and [34]. It is not clear that the allegation at para [32] is that the Contract (however that is ultimately identified and constituted) was terminated or purported to be terminated by the respondent or only the applicant's Position (as defined in the SOC). For that reason it is embarrassing and should be struck out. (5) Paragraph [34] is grammatically wrong and needs to be amended. (6) Paragraph [38] is totally confusing. How does one unilaterally withdraw an offer that was a contract? Upon acceptance of an offer and the bringing into existence of a contract, there is no longer an offer to be withdrawn. It is inconsistent with paras [35] and [36] and the claims at paras [41] and [42], and for that reason is embarrassing and should be struck out. (7) The relevance of para [45] is neither stated nor apparent. Unless such relevance can be shown, it is embarrassing and should be struck out. (8) The response to the request for particulars indicates that the 'EEO Policy' referred to in para [46] but not otherwise defined, is a reference back to the document headed 'Fair Employment Practices' referred to in the particulars at (ii) to para [19]. Clause 3.7 of the instrument of 7 March 2005 in its terms only binds the applicant. The pleading at para [46], if not at para [19], should plead the facts necessary to demonstrate how the policies and/or procedures were express terms or how they bound the respondent; it is embarrassing and should be struck out. (9) The applicant says that it will amend the pleadings at paras [47] [51] to make it clear that they are concerned with alleged breaches of the 'Ongoing Contract'. I agree that this should be done and the amendments should identify which provisions or parts of the EEO Policy have been contravened in each case, consistent with the further particulars that have already been provided. (10) Paragraph [54] refers to the respondent's breach of the implied terms at paras [18] and [19], when the pleadings there refer to the terms as express terms. Paragraph [54] should be amended to remedy this. The reference to the 'Respondent's rights and obligations' should also be amended to the 'Applicant's rights and obligations'; and the particulars in (i) should be amended because there is no anterior title 'Breach EEO Policy' above. (11) The claims with respect to damages are confusing and repetitious. For example, paras [33] and [34] claim, in the alternative, that the applicant suffered loss and damage by reason of the respondent's actions leading to the 'July Termination'; paras [41] and [42] claim, in the alternative, that the applicant suffered loss and damage by reason of the respondent's actions leading to the 'October Repudiation'; para [55] claims that the applicant suffered loss and damage as a result of the breaches referred to at paras [47] [54] inclusive; para [63] claims that the applicant suffered loss or damage by reason of the 'First Misrepresentation'; para [72] claims that the applicant suffered loss or damage by reason of the 'Second Misrepresentation' and then paras [74] [82] inclusive seem to repeat these claims. It is not clear whether the applicant is making multiple claims or whether there is one claim for alternative sums but for different breaches. Paragraphs [74] [82] inclusive, when read in the context of the anterior paragraphs referred to above, are embarrassing and all paragraphs should be struck out. (12) Paragraph [62] refers to paras [54] [61]. The references to paras [54] and [55] cannot be correct and should be amended. (13) Paragraph [74] refers in (a) to 'the Employment Contract'. The term is not defined nor referred to elsewhere in the SOC. It will have to be amended. (14) Paragraph [81] refers to the implied terms in para [54]; it may require amendment depending on the amendment to para [54]: see (10) above.