Week 9 Causes of Action & Parties Joinder:

 Issues to be sorted out before commencing proceedings (week 8)

o what if P can’t identify the person s/he wants to sue?
o what if P needs more information to decide whether to sue?
 Issues to be sorted out before commencing proceedings (week 9)
o how does P commence proceedings/ standing?
o working out who can be parties / joinder of plaintiffs and defendants: rr 6.19 -
6.28
o working out the causes of action / joinder of causes of action: rr 6.18 – 6.28

Standing:
 how does P commence proceedings/ standing?
o Standing = refers to the right of P to be considered an appropriate party to
initiate a particular proceeding.
o Standing generally not contentious in proceedings purely private in nature,
such as actions for breach of contract or actions for damages.
o Cases which standing may be an issue are those proceedings that have a public
element (e.g. enforce of public rights or duties arising under legislation, test
constitutional validity, or review of decisions in inferior courts and
administrators).
 In litigation – public duties and rights:
o Attorney General can initiate proceedings with respect to a public wrong or
grant fiat to allow a private person to sue.
o Those granted the attorney generals ‘fiat’ is referred to as a relator and is liable
for the costs of the action - Attorney General v Scott I [1905] 2 KB 160
o A relator action dependent on AG consent to proceedings being initiated and
this discretion is unfettered and not reviewable by the courts - Suncorp
Insurance and Finance [1991] 2 Qld R 704.
o Without the ‘fiat’, private citizens would have difficulty with standing that
would preclude them from taking an action.
o Other avenues that can provide standing: See - Truth About Motorways v
Macquarie (2000) 200 CLR 591; p394-396.
 Standing rights under Australia federal legislation – Analysis of
federal legislation demonstrates that the common law rule is reflected
stating that - a party, invoking the jurisdiction of a court in respect to
an alleged interference with a public right, must show either that
some private right of that party has been interfered with at the
same time, or that such party has suffered “special damage
peculiar to himself
 Standing might be regarded as a filtering mechanism to determine who can be party to
an action – mechanisms that might be regarded as performing this role: e.g.
o A company may commence and carry on proceedings by its solicitor or a
director of the company - UCPR r 7.2.
 Litigation Tutor – UCPR r 7.13 “person under legal incapacity includes a person
who is incapable of managing his or her affairs:
 o Some people may be subject to legal incapacity and can only sue or defend
actions through litigation guardian know as a ‘tutor’ – UCPR r 7.14. This
includes:
 Children under the age of 18
 Persons who have a physical or mental disability such that they are
unable to receive communications or freely express their will in regard
to their property or affairs.
o Litigation guardian is liable for the costs of the solicitor retained and is also
potentially liable for the costs of the other party.

Working out who can be parties / joinder of plaintiffs and defendants: rr 6.19 -
6.28:
 JOINING GENERALLY:
o Can join ‘as of right’ in initiating process??
o Can join at any time during proceedings – look in seminars at how with both
of these.
o The principle of res judicata (prevents the re-litigation of claims earlier made
and settled) means that it is important that all parties and causes of action are
joined and dealt with at the same time.
 Purpose of res judicata - The interest of litigants in being protected
from the vexatious repetition of civil actions or criminal proceedings.
 Why join parties/cause of action:
o General Rule – Where actions parties have related to each other, there is a
desirability to have the action heard once:
 In Dow Jones & Co v Hutnick (2002) 210 CLR 575 – The common
law favours the resolution of particular disputes between parties by the
bringing of a single action rather than successive proceedings. The
principles of res judicata, issue estoppel, and what has come to be
known as Anshun estoppel, all find their roots in that policy.
 The purpose is to stop parties from raising old issues anew that
were resolved by courts

Estoppel & Causes of Action within Joinder of Plaintiff’s & Defendants:

 Principle of Res Judicata - “Parties are bound by causes of action and issues that are
resolved by courts. Res judicata (meaning ‘a matter already judged’, and sometimes
referred to as ‘cause of action estoppel’) precludes a resolved cause of action as a
whole form being relitigated.
 Procedure to raise Estoppel to Causes of Action:
o Res judicta in all its forms must be specially pleaded. If estoppel cannot be
pleaded in a defence or reply, or if the estoppel goes only to damages and
could not be pleaded at all, it must be raised at the trial. This must be done at
the earliest possible moment, by taking an objection to evidence, at the risk of
the point otherwise being lost by waiver.
 1# Res Judicata/Cause of action estoppel:
o Cause of action estoppel applies where a civil or criminal cause of action has
been litigated to judgment…The cause of action having been litigated to
judgement cannot be raised again in another action or prosecution
 The cause of action dissolves/merges with the judgement; has no
independent existence as long as the judgement stood, and there was
 no discretion to deny the application of the doctrine of res judicta -
Chamberlain v Deputy Commission or Taxation (1988) 164 CLR
502.
 Effect of Res Judicata: matter already judged – cause of action
estoppel; precludes a resolved cause of action as a whole from being
re-litigated.
 Operates to preclude assertion in the subsequent proceeding of
a claim to a right or obligation which was asserted in the
proceeding and which was determined by the judgement.
 Principles which undergirded the operation of res judicta estoppels
against privies – Partridge v McIntosh & Sons Ltd (1933). (See 363)
 Judicial decisions in personam bind not only the parties but
also their privies, in blood, interest or title.
 Anglo Australian law – res judicta estoppels must be mutual
and are not available for or against strangers.
 There may be estoppels between defendants inter se.
 Persons who could have intervened but did not may also be
bound.
 Members of a class in a property constituted class action and
persons represented in a representative action, will also be
bound.
 A party who litigates different rights is in law different persons
– person in his own right is a different person for present
purposes from the same person as an executor or trustee.
 A person in his private capacity is a different person from the
same person in an official capacity – e.g. holder of a public
office.
 Res judicata estoppels may be answered by proof that the earlier
judgment was affected by fraud or collusion, or a cross-estoppel by
representation:
 The estoppel may also be contrary to public policy or statute, or
there may be special circumstances why it should not be
enforced as in Arnold v National Westminster Bank [[1991] 2
AC 93].
 Fraud or collusion can only be relied on to displace a res
judicata in substantive proceedings to set aside the prior
judgment.
 2. Principle of issue estoppel (Only applies to issues) - may preclude a particular
issue or matter in previous proceedings from being raised in any subsequent
proceedings.
o “A judicial decision on one cause of action may require the court to decide
issues of fact or law which may become issues in later litigation between the
same parties involving a different cause of action. If the first court
determines, by evidence or admission, that some ingredient of a cause of
action does or does not exist, and that determination was fundamental to the
decision, it will estop the parties in later litigation” (p. 362, quoting Handley
J).
o May preclude a particular issue or matter in previous proceedings from being
raised in any subsequent proceedings.
  A decision on an issue against the party who succeeded does not give
rise to an issue estoppel because it was not fundamental to the decision
in his favour.
 Where several grounds for succeeding on a cause of action are upheld,
there is no estoppel on the separate findings because none are
fundamental.
 3. Doctrine of merger in judgment - If, in an earlier action, the cause of action was
sustained it will have merged in that judgment and ceased to exist.
o The merger also affects causes of action other than the precise one sued on.
 4. Anshun estoppel - applies to a claim that could have been, but was not, made in
the earlier proceedings.
o Named after the case of Port of Melbourne Authority v Anshun Pty Ltd (1981)
147 CLR 589.
o “Estoppel in that extended form operates to preclude the assertion of a claim,
or the raising of an issue of fact or law, if that claim or issue was so connected
with the subject matter of the first proceeding as to have made it unreasonable
in the context of that first proceeding for the claim not to have been made or
the issue not to have been raised in that proceeding”: Tomlinson v Ramsey
Food Processing [2015] HCA 28 at [22].
o Meaning – A party can be prevented from bringing a claim in fresh
proceedings which should have been brought in the original proceedings.
o Some Principles:
 Conditions dictating Anshun estoppel include (Gibbs & McAllion Pty
Ltd v Kinna [1999] 2 VR 19):
 Could the cause of action have been raised in the previous
proceeding?
 Will the same or substantially the same facts arise for
consideration in both proceedings?
 Would asserting the cause of action/issue in the second
proceeding lead to contradiction with the judgement or order in
the first?
 Anshun estoppel is not about saying that you can only bring up
issues discussed in the first set of proceedings at the second.
 Cause of action/issue asserted in second proceeding, “has to be
so relevant as to make it unreasonable not to raise it”
(Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245,
247) in the first proceeding.
 Word ‘unreasonable’ draws attention to circumstances of the
case.
o Operates to preclude the assertion of a claim, or the raising of an issue of fact
or law, if that claim or issue was so connected with the subject matter of the
first proceedings as to have made it unreasonable in the context of that first
proceeding for the claim not to have been made or the issue not to have been
raised in that proceeding.
 May apply where the parties in subsequent proceedings are not the
same as in the relevant earlier proceedings. A subsequent defendant
may be able to raise the principle even though he or she was not
involved in the earlier case, as in Rippon v Chilcotin (2001)
o N.B. It is to be remembered that in Anshun, parties to the second proceedings
were parties in the first proceedings.
o In Port of Melbourne Authority v Anshun Pty Ltd – origin of Anshun
Principle to determine whether it was permissible to initiate a second
proceedings on a different cause of action against a party who had been a
defendant in the first proceedings:
 Facts – Anshun Pty Ltd hired a crane from the Melbourne Port
Authority, where the crane in use by Anshun injured a worker
(Soterales)
 Worker sued Anshun & Authority and claimed damages in first
proceedings
 In Anshun’s contract with the Authority there was a clause that
Anshun agreed to indemnify the Authority against all claims
and actions brought against the Authority arising out of the use
of the crane. The Authority did not plead the indemnity clause
contained in the hire agreement in answer to Anshun’s claim
for contribution from the Authority.
 In fact, the indemnity in the agreement was not raised in the
first proceedings by either defendant.
 After the conclusion of the first set of proceedings, the
Authority initiated second proceedings by commencing an
action against Anshun claiming $53,632.89 by way of
indemnity for the amount paid by it to Soterales and for legal
costs and disbursements.
 Anshun’s defence to the Authority’s claim was one of
estoppel, the substance of the defence being that the Authority
could have raised its claim against Anshun in the earlier action
by Soterales.
 Held - the Authority was estopped from making its claim. Essentially,
the High Court held that the Authority could and should have raised
the indemnity as a defence to Anshun’s claim for contribution from the
Authority in the first proceedings.
 An important fact in the Court’s view was that a second
proceeding might cause a conflicting judgment:
o [40] The likelihood that the omission to plead a defence
will contribute to the existence of conflicting judgments
is obviously an important factor to be taken into account
in deciding whether the omission to plead can found an
estoppel against the assertion of the same matter as a
foundation for a cause of action in a second proceeding.
 By “conflicting” judgments we include
judgments which are contradictory, though they
may not be pronounced on the same cause of
action. It is enough that they appear to declare
rights which are inconsistent in respect of the
same transaction.
o [41] It is for this reason that we regard the judgment
that the Authority seeks to obtain as one which would
conflict with the existing judgment, though the new
 judgment would be based on a different cause of action,
a contractual indemnity.
o Conditions dictating Anshun estoppel include (Gibbs & McAllion Pty Ltd v
Kinna [1999] 2 VR 19):
 Could the cause of action have been raised in the previous proceeding?
 Will the same or substantially the same facts arise for consideration in
both proceedings?
 Would asserting the cause of action/issue in the second proceeding
lead to contradiction with the judgement or order in the first?
 See Port of Melbourne Authority v Anshun Pty Ltd for
conflicting judgments as a concern
 C) Privity and Estoppels:
o “…privies in blood, law and estate shall be bound by and take advantage of
estoppels. In order to give full effect to the rule by which parties are held
estopped by a judgment, all persons who are represented by the parties or
claim under them or in privity with them are as equally and as effectually
estopped by the same proceedings”: Tomlinson v Ramsey Food Processing
[2015] HCA 28 at [29].
o Examples of representation giving rise to estoppels:
 Representation by an agent;
 Representation by a trustee;
 Representation by a tutor of guardian (usually relevant if a person is
underage or disabled);
o “Representation” by statutory body often doesn’t give rise to estoppels if the
body is simply enforcing the law (rather than private interest of another party).

Port of Melbourne Authority v Anshun Pty Ltd (1981)

Issue: whether it was permissible to initiate a second proceeding on a different cause of
action against a party who had been a D in the first proceedings. The cause of action in the
second proceedings had not been litigated in the first proceedings so there was no apparent
res judicta principle to prevent the second proceedings.

Held: that the authority was estopped from making its claim – authority could have raised the
indemnity as a defence to Anshun’s claim for contribution from the authority in the first
proceedings. Authority had not offered an explanation as to why it had not raised the
contractual indemnity in the first set of proceedings. Second proceedings may cause a
conflicting judgement.

Tomlinson v Ramsey Food Processing Pty Ltd [2015]

 Question of whether Tomlinson was privy in interest with FWO for the purpose of
issue estoppel is to be determined by reference to the principle governing privity of
interest stated and applied in Ramsey v Pigram
o Principle – ‘basic requirement of a privy in interest is that the privy must claim
under or through the person of whom he is said to be a privy’
o Rendering of a final judgement quells controversy = rights and obligations
between those persons ceases to have an independent existence – merge in
final judgement = res judicta.

Doctrine of estoppel vs. doctrine of abuse of power – Ramsay v Pigram

  Estoppel/abuse of power – overlap
o Assertion of a right or obligation, or the raising of an issue of fact or law, in a
subsequent proceeding can be simultaneously: (1) the subject of an estoppel
which has resulted from a final judgement in an earlier proceeding; and (2)
conduct which constitutes an abuse of process in the subsequent proceeding.
 Abuse of process – broader than estoppel
o Capable of application in any circumstances in which the use of a court’s
procedures would be unjustifiably oppressive to a party or would bring the
administration of justice into disrepute.
 Relieve against injustice to a party or impairment to the system of
administration of justice which might otherwise be occasioned in
circumstances where a party to a subsequent proceeding is not bound
by an estoppel.
 Making a claim or raising an issue which was made or raised for
determination in an earlier proceeding, or which ought to reasonably
have been made or raised for determination in that earlier proceeding,
can constitute an abuse of process even where the earlier proceeding
might not have given rise to an estoppel.
 Making such a claim or raising such an issue can constitute an abuse of
process where the party seeking to make the claim or to raise the issue
in the later proceeding was neither a party to that earlier proceeding,
nor the privy of a party to that earlier proceeding, and therefore could
not be precluded by an estoppel.
 Ramsay v Pigam – continuing existence of the distinct rule, equitable
in origin, which prevents a person from actually recovering more than
once for a given loss that results from breach of a given obligation.

The privity principle explained:

 Ramsay v Pigam – governs the identification of a person who is privy in interest with
a party to proceedings for the purpose of estoppel resulting from the rendering of a
final judgement.
o The one who claims through another, is to the extent of his claim, subject to
and able to take advantage of all estoppels affecting the person through whom
he claims.
 Two limbs:
 A party to a later proceeding – (A) can be privy in interest with
a party to an earlier proceeding
 (B) on either of two bases:
o A may have some legal interest in the outcome of the
earlier proceeding which was represented by B, or
o That B has some legal interest in the outcome of the
later proceeding which is represented by A.
 After earlier proceeding was concluded by judgement – A
might have acquired from B some legal interest in respect of
which B would be affected by an estoppel which A then relies
on in the later proceeding.
o Interest of the privy must be legal interest:
 An economic or other interest on the part of A in the outcome of the
earlier proceeding is insufficient.
  Those applications have also correctly emphasised that, absent a legal
interest, such influence as A might have had over the conduct of the
earlier proceeding is irrelevant even if that influence amounted to
control.
 Young v Public Service Board:
o A person does not become bound by an estoppel by reason of a party having
represented legal interests of that person in an earlier proceeding merely as a
consequence of that party having lawfully asserted a claim which, if accepted,
would have resulted in determination enhancing or enforcing a legal
entitlement of the person.
o In the absence of the person having authorised the assertion of the claim, the
representation must at least have been of such nature as to have protected the
person from being unjustifiably subjected to an unwanted estoppel.
 A party claiming or denying the existence of a legal right or obligation
should have an opportunity to present evidence and arguments to
establish the facts and law on which the claim or denial is founded.
 Exceptions:
o Finality and fairness – maintaining the certainty of past
adjudicated outcomes
o Operation of an estoppel – preclude assertion in a
subsequent proceeding of what is claimed to be the
truth.
 Justice of binding to an estoppel a person who was a party to earlier proceedings –
person has had the opportunity to present evidence and argument.
o However; unjust for such a person to be precluded from asserting what the
person claims to be the truth if the person did not have an opportunity to
exercise control over the presentation of evidence and the making of
arguments in the earlier proceeding and if the potential detriment to the person
from creating such an estoppel was not taken fairly into account in the
decision to make or defend the claim in the earlier proceeding or in the
conduct of the earlier proceeding.
 Forms of representation: Agent/Trustee Tutor or guardian
o Another person under the rules of court which permit representation of
numerous persons who have the same interest in a proceeding.
 Each of those forms –
o subject of fiduciary duties on the representing party or of procedures overseen
by the court, or of both, which guard against collateral risks of representation,
including the risk to a represented person of the detriment of an estoppel
operating in a subsequent proceeding outweighing the benefit to that person of
participating in the current proceeding.
 The entity or office holder – acts for the statutorily mandated or permitted reasons
with a statutorily defined area of responsibility in making such a claim.
o Other than where the entity or office holder is specifically required to or
authorised by statute to make such a claim as a representative of another
person, the entity or office holder would not ordinarily be required by statute
to consider interests of the person beyond those interests which fall within its
own statutorily defined area of responsibility.
 o Entity or office holder might not even be permitted to consider broader
interests of the other person – may conflict with the proper discharge of that
statutory responsibility.
o Where a person whose legal entitlement – claimed to enforce thereby to be
privy in interest with the entity or officer holder for the purpose of CL doctrine
of estoppel pursuit of the claim by the statutory entity might foreclose not only
the pursuit of in defence of claims brought against that person.
o Entity or office holder in acting within its statutorily defined area of
responsibility, might in that way unwittingly preclude the future enforcement
of other rights or obligations far more value to that person.
o For the conduct of the statutory entity or office holder to constrain future
conduct of the person would therefore have the real potential not only to
occasion injustice to that person but to impose a practical impediment to the
performance of the entity or statutory office holder’s statutory responsibilities.
 If not imposed by other statute under which the entity or officer holder
acts – such a result should not be superimposed by the common law of
estoppel.

Rippon v Chilcotin (2001)

 In State Bank of NSW Ltd v Stenhouse Ltd (1997) – case involving abuse of process in
seeking to re-litigate an issue:
o Guiding considerations are oppression and unfairness to the other party to the
litigation and concern for the integrity of the system of administration of
justice, and amongst the matters to which regard may be had are;
 (A) the importance of the issue in and to the earlier proceedings,
including whether it is an evidentiary issue or ultimate issue;
 (B) the opportunity available and taken to fully litigate the issue;
 (C) the terms and finality of the finding as to the issue;
 (D) the identity between the relevant issues in the two proceedings;
 (E) any plea of fresh evidence, including the nature and significance of
the evidence and the reason why it was not party of the earlier
proceedings;
 (F) the extent of the oppression and unfairness to the other party if the
issue was re-litigated and the impact of the re-litigation upon the
principle of finality of judicial determination and public confidence in
the administration of justice; and
 (G) an overall balancing of justice to the alleged abuser against the
matters supportive of abuse of process.
 Meriton Appartments Pty Ltd v Industrial Court of NSW – Anshun test based on
reasonableness or otherwise of the conduct of a litigant in earlier proceedings

Champerslife v Manojlovski [2010]

 Question of unreasonableness derive d significantly from the matter being so relevant
to the subject matter of the first proceeding. Two related assessments that have to be
made;
o Was the matter so relevant that it can be said to have been reasonable not to
rely upon it in the first proceeding?
 Johnson v Gore Wood & Co [2002]
  It is however, wrong to hold that because a matter could have
been raised in earlier proceedings it would have been, so as to
render the raising of it in later proceedings necessarily abusive.
 That is to adopt too dogmatic an approach to what should – be
broad, merits based judgement which takes account of the
public and private interests involved and also takes account of
all the facts of the case – focusing attention on the crucial
question whether, in all the circumstances, a party is misusing
or abusing the process of the court by seeking to raise it before
it the issue which could have been raised before.
 Fundamental error in the approach of the respondent – build on the
proposition that because the matter could have been raised in the
proceeding to draw a conclusion, it should have been.

R 6.19(1) UCPR:
– (1) Two or more persons may be joined as plaintiffs or defendants in any originating
process if:
(a) separate proceedings by or against each of them would give rise to a
common question of law or fact, and
(b) all rights of relief claimed in the originating process are in respect of, or arise out of,
the same transaction or series of transactions,
– or if the court gives leave for them to be joined.
– (2) Leave under subrule (1) may be granted before or after the originating process is filed.

Purpose of r 6.19:
 “The notion of a transaction suggests a contract but it seems clear from the case law
that the meaning of ‘transaction’ in this context is not limited to a contractual
transaction, which implies a consensual act between two parties. It may mean simply
an act by one party which affects another, thereby binding the two parties in a
‘transaction’ for the purposes of potential litigation” (p. 418-419).
 Under r 6.19(2), even if there aren’t common questions of law or fact, and the rights
to relief don’t arise out of the same transaction/series of transaction, the Court can
grant joinder by leave.
 “Such exceptions would be appropriate where the court was of the view that justice as
between the parties was to be served and costs and delay would be minimised” (p.
423).

Joining Parties in the proceedings (applies to P & D):

 Test - Co-plaintiffs may join in the same proceeding where:
o 1. They have a right arising out of same transactions or series of transaction
(Act or event); and
o 2. If separate trials were held there would be a common question of law or
fact; or
o If satisfied and the second plaintiff consents – you can name them as plaintiffs
in the initiating process
 Even if the test is not satisfied and you still wish to have the case in the same
proceedings – you can ask for leave via r 6.19
o R 6.24 – provides for joinder after commencement of proceedings.
 o BUT NOTE - Plaintiffs must give consent to be joined: r 6.25
 Same test - Multiple defendants may be joined in the same proceedings if the claim
against each defendant arises out of the same transaction or series of transactions and
there is a common question of law or fact between the plaintiff and the defendants.
 The causes of action may be joint, several or alternative.
o Key idea is that all parties who should properly be joined should be, that
includes plaintiffs and defendants. Where different people are jointly entitled
to the same relief, they should be joined
o Where a plaintiff is unsure as to which of two or more persons are liable to
him or her, the defendants can be joined severally or in the alternative in the
same proceedings.
o Some matters which might constitute unfairness to a defendant, and thus count
against a grant of leave for joinder:
o “The making out of the case against one defendant in some way hampers
another defendant from adequately making out its defence; or
o The joinder of multiple defendants leads to cost or delay to a defendant
materially greater than would have occurred if the cases had been brought
separately; or
o A defendant is forced to defend its case in an inconveniently located court; or
o A defendant is forced to defend its case in the Supreme Court, whereas if the
case had been brought separately against a defendant it would have been
brought in a lower court at less cost to the defendant”: Dean-Willcocks v Air
Transit International (2002) 55 NSWLR 64, 73.
 Even if the test is not satisfied and you still wish to have the case in the same
proceedings – you can ask for leave via r 6.19

Element 1 of test – Common questions of law and facts:

 Common question of law or fact
o Are there common questions for the court to resolve in order to determine
liability
 Dean Wilcox v Air Transit international – liquidator argued that
common issue was:
o (a) Whether companies were insolvent at any time and , if so, when. Court
found this was not the case. Liquidators right to relief against D arises out of a
particular transaction, not out of events giving rise to insolvency.
 Also addresses practical matters pertinent to joinder by leave:
 Whether or not the applicants for joinder are represented by
different solicitors.
 How common are the facts? How much of the facts are
peculiar/specific to individual parties?
 Will joining lots of plaintiffs result in the defendant having to
answer deal with a multitude of transactions?
o Birtles v Commonwealth – given a broader interpretation (but note only dicta)
solicitor who failed to lodge action within time limit, court found that solicitor
could be joined as was part of same transaction. “Should be no reason as
comprehending, in addition to the accident and the injury sustained by the
plaintiff, the further matters of relevance in the action against the original
defendant and the fact of commencement of the action more than tow years
 after the accident. (Makes sense that should be joined, if liability found then
solicitor’s liability determined really).

Element 2 of test – Same transaction or series of transactions:

 Same transaction or series of transactions
 See Bendir v Anson; Payne v Young
 We will consider these in seminars this week and see how they might apply to our
scenario.
 R6.19: Requirement that two or more persons who are joined as P or D may be joined
if rights of relief claimed arise out of same transaction or series of transactions
o Bendir v Anson – Court held that ‘The word transaction, I think, necessarily
means an act, the effect of which extends beyond the agent to other persons’.
 Building of a premises that caused nuisance to those across the street.
In that sense the building of the premises may be regarded as a
transaction.
 An act by one party which affects another, thereby binding the two
parties in a transaction for the purposes of potential litigation.
 Payne v Young – Example of what won’t constitute the same transaction/series of
transactions. The phrase ‘series of transactions’ was interpreted as being limited by
the words ‘same’. So, in other words, the section reads ‘same transaction or same
series of transactions).
o “There is clearly no transaction to which all the plaintiffs are party, nor indeed
… is there any claim by any plaintiff to which all the defendants are really
parties…I am quite unable to see how the transactions of each plaintiff with a
different defendant can be treated as a series of transactions within the
meaning of the rule, however liberally one might construe and apply it.”
 The phrase ‘series of transactions’ was interpreted as being limited by the words
‘same’. So, in other words, the section reads ‘same transaction or same series of
transactions). It is ‘not just a series of transactions but the same series of transaction’s
 Facts - This case concerns a number of plaintiffs who ran abbitors suing various
authorities imposing fees that they said were in breach of constitution – s90.
 Court found not same series of transaction. Here no ‘common participation’ in the
inspection services that were performed’ or in the liability to pay fees that were
demanded or the payments which were actually made.. No transaction to which all the
P’s were a party. [Court found each P had a separate cause of action against a
different inspecting authority. A common interest in the validity of the regulations
was not enough to justify joinder on the repayment claim.
o Note: Remedies or damages might be different but they would be claiming
relief in respect of the same transaction or series of transactions.
o In relation to r 6.19 where court gives leave - Bishop and Bridgeland’s
Security
o Court gives leave – r 6.19(2) – court can give leave before or after
commencement of proceedings.
 The case of Bishop v Bridgeland’s Securities assists in looking at whether the Court
should grant leave pursuant to the equivalent of r 6.19. Although the discretion is in
its terms unconfined, Wilcox, in that case pointed to a number of principles which
ought to guide the exercise of such a discretion:
 o (i) the court should take whatever course seems to be most conducive to a
just resolution of the disputes between the parties, but having regard to the
desirability of limiting so far as practicable, the costs and delay of the
litigation.
o (ii) leave ought not to be granted unless the Court is affirmatively satisfied
that joinder is unlikely to result in unfairness to any party
o (iii) it would normally be inappropriate to grant leave for the joinder of
applicants who were represented by different solicitors
o (iv) although all applicants might propose to rely upon some common or
similar facts, there may be such differences between the evidence intended to
be relied upon in support of the claims of particular applicants as to make it
inexpedient to join the claims the discreet material possibly overbearing that
which was common to all the claims.
 Joinder can happen before or after commencement of proceedings.
 R6.24 – provides for joinder after commencement of proceedings.
o Previously joinder referred to joining parties in initiating proceedings?
Adding parties came later. Under UCPR, this is blurred.

Joining causes of action – r 6.18

1) In any originating process, the plaintiff may claim relief against the defendant in
respect of more than one cause of action in any of the following circumstances:
a. If the plaintiff sues in the same capacity, and claims the defendant to be liable
in the same capacity, in respect of each cause of action,
b. If the plaintiff sues:
i. In his or her capacity as executor of the will of a deceased person, or
administrator of the estate of a deceased person, in respect of one or
more of the causes of action, and
ii. In his or her capacity, but with reference to the estate of the same
deceased person, in respect of the remaining causes of action,
c. If the plaintiff claims the defendant liable:
i. In his or her capacity as executor of the will of a deceased person, or
administrator of the estate of a deceased person, in respect of one or
more of the causes of action, and
ii. In his or her personal capacity, and in relation to the estate of the same
deceased person, in respect of the remaining causes of action,
d. If the court grants leave for all of the causes of action to be dealt with in the
same proceedings.
2) Leave under sub-rule (1) may be granted before or after the originating process is
filed.

Joining Causes of Action:

 Several causes of action may be joined in a single proceeding
 Meaning of term “cause of action”
 No restriction on the type or number of causes of action that may be joined
 Requirements of UCPR r 6.18 relatively undemanding
 Discretion to grant leave should take into account the overriding purpose in CPA s 56-
facilitation of a just, quick and cheap resolution of issues in dispute
 No restriction on the type or number of causes of action that may be joined
  Requirements of UCPR r 6.18 relatively undemanding - provides for the joining of
causes of action and requirements to be met.
o Once a proceeding is properly constituted as to parties, the causes of action
that may be joined are decided by the rules about joining causes of action.
o Joining causes of action depend on joining parties which depends on common
question. (Causes of action have to be connected).
 Meaning of “causes of action”: ‘Read v Brown: cause of action is
every fact the P must prove, if traversed, to support a right to
judgment.
 Means causes of action properly constituted as to parties…. So, you
look to r6.19 and see that proceedings are properly constituted as to
parties, and then you look to r6.18 to determine the causes of action
that can be joined.
 Note: if there are no common question in these causes of action, court may decide that
it is more convenient for separate trial. R 6.22

Joining Parties & Causes of Action:

 Joinder of parties and causes of action can provide for more efficient use of resources
because litigation need only occur once.
 Discretion to grant leave should take into account the overriding purpose in CPA s 56-
facilitation of a just, quick and cheap resolution of issues in dispute
o Leave can be granted either before or after the commencement of proceedings
o Especially note: “Multiple causes of action can be joined in the same
proceedings. The considerations controlling joinder of causes of action and
the joining of parties are interrelated because when parties are joined
different causes of action may exist between those parties that have been
joined” (p. 435).
 r 6.22 provides that “in any proceedings may embarrass, inconvenience or delay the
conduct of the proceedings” the court can order (a) separate trials or (b) any such
order it thinks fit.
 r 6.29 says that the court can order the removal of parties who have been improperly
or unnecessarily joined

‘Consolidation’ and hearing common issues together to save costs:

 Consolidation (r 28.5): “If several proceedings are pending in the court and it
appears to the court:
 (a) that they involve a common question, or
 (b) that the rights to relief claimed in them are in respect of, or arise out of, the same
transaction or series of transactions, or
 (c) that for some other reason it is desirable to make an order under this rule,
 the court may order those proceedings to be consolidated, or to be tried at the same
time or one immediately after another, or may order any of them to be stayed until
after the determination of any other of them.”
 Much more common for common issues in different proceedings to be heard together
( see r 28.2) [case ref: A Goninan v Atlas Steels [2003]].
UCPR 28.2 Order for decision:
 Court may make orders for the decision of any question separately from any other
question, whether before, at or after any trial in the proceedings.
Notice of motion – r 18.3
 (1) A notice of motion for an order:
o (a) must identify the person by whom the order is sought:
 (i) if the person is already a party to the proceedings, as that party (for
example, as first plaintiff or second defendant), or
 (ii) if the person is not yet a party to the proceedings, as the applicant,
and
 must identify each person affected by the order:
o (b) if that person is already a party to the proceedings, as that party (for
example, as second plaintiff or first defendant), or
 (ii) if that person is not yet a party to the proceedings, as the
respondent.

 Subject to r 18.4, a notice of motion must be served at least 3 days before the date
fixed for the motion.
 As per r 18.5, if one of our parties hasn’t entered an appearance, or is not an active
party in the proceedings, then the notice of motion has to be personally served.

Parties under a Disability:

 Rules 7.13 – 7.18
 7.13 Includes a person incapable of managing their affairs
 7.14 Proceedings must be conducted by a tutor, unless Court orders otherwise
 7.15(1) No Court order usually required (but see (5) below
 7.13(2) Exclusions
o a) Person under a disability
o b) Judicial Officer, Registrar or Court administrative official
o c) a person with an interest in the proceedings adverse to those of the person
with a disability
 7.15(5) Replacement of Tutor only by order of the Court
 7.15(6) Tutors have all the powers and obligations of a party
 7.16 Tutor must file
o a) Consent to Act
o b) Solicitors Certificate as to adverse interests
 7.17 Plaintiff to take no steps after service until Tutor appointed for D
 7.17(2) Special process in Local Court
 17.18 Courts power to appoint / remove a Tutor

Set-offs and Cross-Claims – RE: Parties to a trial:

 Cross claims should not be confused with set-offs.
o Set-offs: mechanism whereby one party can apply a debt owed to him or her
by another party to discharge all or part of a debt that he or she owes to that
party.
 Result – either the debt is completely discharged, or a sum remains
which represents the balance of the debt owed by one of the parties to
the other.
  Counterclaim is merely a procedural device (involving cross-claim) whereby actions
by one party against the other and vice versa are heard as part of the one proceeding.
Such actions are treated essentially as distinct actions, including for the purposes of
striking out, summary judgement and costs in the proceedings.
Economic result of counterclaim will often be the same as the one which would be achieved
by set-offs, the result of a hearing involving claim and counterclaim is separate judgements
for each party against the other, whereas a single judgement only is issued when set-off is
pleaded.

Civil Procedure Act 2005 (NSW) – ss21 & 22:

S21 Defendant’s right to set-off:

1. If there are mutual debts between a plaintiff and a defendant in any proceedings, the
defendant may, by way of defence, set off against the plaintiff’s claim any debt that is
owed by the plaintiff to the defendant and that was due and payable at the time the
defence of set-off was filed, whether or not the mutual debts are different in nature.
2. This section extends to civil proceedings in which one or more of the mutual debts is
owed by or to a deceased person who is represented by a legal personal represented
by a legal personal representative.
3. This section does not apply to the extent to which the plaintiff and defendant have
agreed that debts (whether generally or as to specific debts) may not be set off against
each other.
4. This section does not affect any other rights or obligations of a debtor or creditor in
respect of mutual debts, whether arising in equity or otherwise.
5. This section is subject to section 120 of the Industrial Relations Act 1996.
6. In this section, debt means any liquidated claim.

Note: application of this provision existing debt is dealt with in clause 6 of Sch. 6
(Savings, Transitional, and other Provisions).

S22 Defendants right to cross-claim:

1) Subject to subsection (2), the court may grant to the defendant in any proceedings (the
first proceedings) such relief against any person (whether or not a plaintiff in the
proceedings) as the court might grant against that person in separate proceedings
commenced by the defendant for that purpose.
2) Relief may not be granted under this section against a person who is not a plaintiff in the
first proceedings unless the relief relates to/or is connected with the subject of the first
proceedings.
3) A person against whom a defendant makes a claim for relief under this section:
a) Has the same rights in respect of his or her defence against the claim as he or she
would have in separate proceedings commenced against the person by the defendant,
and
b) If not already a party to the first proceedings:
i) Becomes a party to the first proceedings, and
ii) Unless the court otherwise orders, is bound by any judgement (including a
judgement by consent or by default) or decision (including a decision by consent)
on any claim for relief in the proceedings (including a claim for relief in any
cross-claim in the proceedings).
 Where a D brings a cross-claim against a P it need to not be related to or connected
with the P’s claim or arise out of the same transaction. The cross-claim is merely
required to be within the same parties to the original claim and be a matter in which
the court has jurisdiction.
 A defendant can only bring a cross-claim against a person who is not a party to the
proceedings between the P and D if it is related to or connected with the subject of
those existing proceedings. Civil Procedure Act 2005 (NSW) – s22(2)
o If the D’s cross claim against a non-party is allowed to be joined, the non-
party becomes a cross-defendant and is bound by the judgement between the P
& D.
 However, without a further order from the court, the cross-defendant
does not become a defendant against the P and is not allowed to
intrude upon the conduct of the proceedings between the P & D.
o Because the cross-defendant is bound by the judgement in the proceedings, the
Anshun principle would restrict (or stay) claims that may be made in
subsequent proceedings if any later claims could have been, but were not,
raised in the proceedings to which the cross-defendant has been joined.
 A cross claim is to be made within the time limit for a party to file a defence: see
UCPR r9.1. In proceedings commenced by statement of claim this period is 28 days
after service of the statement of claim or such time as the court directs: See UCPR
r6.10(1)(a).
EXTRA POINTERS- INITIATING PROCEEDINGS AND PLEADINGS:

Pleadings:
 Concept – Pleadings are formal documents filed in court and exchanged between the
parties that set out the plaintiff’s claim and the defendant’s response to the claim.
o UCPR Dictionary – indicates “pleading” includes a statement of claim,
defence, reply and any subsequent pleading for which leave is given under Pt
14, but does not include a summons or notice of motion.
 Pleadings are binding on parties – pleading process creates an incentive to respond:
o Once the statement of claim has been filed and served on the defendant, each
factual allegation in the statement of claim is deemed to be admitted unless the
defendant denies the allegation or makes a statement of non-admission in
regard to each allegation: UCPR r 14.26.
 After the defence has been delivered the last unanswered pleading is deemed to be
denied unless further pleadings are served: UCPR r14.27.
 If D does not file a defence within the time prescribed – the D is in default (UCPR r
16.2) & the P can apply to the court for a default judgment to be given (UCPR r 16.3)
 A court may decide a case on the evidence presented notwithstanding that a cause of
action may have been pleaded defectively:
o Films and Casting Temple v Malla [2013] – held that pleadings that had
mischaracterised the effect of a contractual provision, the terms of which had
been adduced in evidence at trial and proved without objection, did not
preclude the court from deciding the claim on the basis of the contractual term
as proved, not as pleaded.
 In Young v Hones [2014] NSWCA 336 – confirmed that a reply to a defence filed
should be used to respond to allegations in the defence:
o It is not appropriate to use a reply to raise new allegations or causes of action
against the defendant. This would require an application to amend the
statement of claim.
 Do we need case summary on:
o Banque Commerciale SA (in liq) v Akhil Holdings
o ASIC v Rich
o Young v Hones

WHAT ARE PLEADINGS?

 UCPR Dictionary: "pleading" includes a statement of claim, defence, reply and any
subsequent pleading for which leave is given by the court under Part 14, [but does not
include a summons or notice of motion].
o “formal written statements of the plaintiff’s claim and the defendant’s defence”
Cairns, Australian Civil Procedure (2007) 149
o “formal documents exchanged between parties in which they set out their claims
and defences, and the facts on which those claims and defences are based” Hunter
et al, Litigation 1 (2005) 152
 Not include summons, because if you look at r 6.4, you see the types of matters listed
where a summon is used there is no defendant or they are for applications for things – eg,
appointment of a minor, declarations around a will, preliminary discovery, stated case,
construction of an Act, etc.
WHAT IS THE PURPOSE OF PLEADINGS?
 Allows party to state its case
 Gives party notice of opposing party’s allegations
 Gives each party a fair opportunity to answer allegations made against it
 Process (or rules themselves) has inbuilt incentive for the defendant to respond – if P’s
factual allegations are not “traversed” (denied or not admitted) by D in defence then
allegations are taken as admitted UCPR r14.26.
o (Now obviously this has implications for the matter going to trial or for possible
default judgment by a plaintiff based on these untraversed allegations).
“(1) An allegation of fact made by a party in a pleading is taken to be admitted by
any opposite party required to plead in response unless:
(a) in the pleading in response, the opposite party traverses the allegation…
(2) A traverse may be made by denial or by a statement of non-admission, either
expressly or by necessary implication, and either generally or as to any particular
allegation.”
 Defines issues in dispute so each party can
o identify which allegations are admitted and do not have to be proved
o identify which allegations are denied/not admitted and do have to be proved
o focus its preparation on the issues in dispute
o assess its prospects of success and possibly negotiate settlement
 Informs court of matters in issue
o judge can identify issues that s/he must decide
o court only considers evidence relevant to issues in dispute
 Forms permanent record of parameters of a case - court has accurate record of the issues
litigated so as to prevent the parties litigating the same issues again
 Pleadings are incredibly important – often they are drafted by barristers, so solicitor might
brief barrister specifically for the drafting of the pleadings, particularly in higher courts.

HOW DO YOU PLEAD?

 Pleadings are governed by Part 14. It sets out what pleadings must include and process for
pleadings. (REF College of Law Practice Papers titled ‘Case Preparation, Pleadings and
Particulars’ for examples).
 Pleadings assert ‘material facts’ – those facts ‘that are critical to supporting each of the
elements of the cause of action’.
o So in drafting pleadings you must always keep front of mind, what are the
elements of the cause of action that I as plaintiff must prove? It is to these that I
must address. So, in the example in the Practice Papers – it was pleading in
relation to negligence, elements are:
 Duty of care
 Breach of Duty
 Damage
 Causation
o The material facts are those facts that go to supporting each of these elements.
 o Duty – it established the relationship between the parties – owner/operator of the
premises and the plaintiff as the paying customer of the defendant.
o Breach – P slipped and fell due to D’s negligence: Particulars: spells out the
details of how say D failed to take adequate or reasonable care for P’s safety.
 Markisic v Dept of Community Services – (how not to plead. See things like: pleadings
are divded in paragraphs, to contains facts, not evidence, be brief, fraud, etc).
 14.6. Pleadings to be divided into paragraphs, with each matter put in separate,
consecutively numbered paragraphs (as far as convenient).
 14.7. Pleadings to contain facts, not evidence
 14.8. Pleadings must be as brief as the nature of the case allows.
 14.9. References in pleadings to documents and spoken words
 14.10. Certain facts need not be pleaded
 14.11. Conditions precedent presumed to have been met
 14.12. Pleading of facts in short form in certain money claims
 14.13. Pleading not to claim an amount for unliquidated damages
 14.14. General rule as to matters to be pleaded specifically
 14.15. Pleadings concerning possession of land
 14.16. Defendant’s pleading of contributory negligence
 14.17. New matter may be raised in pleading
 14.18. Pleadings to be consistent as to allegations of fact
 14.19. Pleadings may raise points of law
 14.20. Pleading the general issue

Part 4 UCPR – Form of Pleadings:

Part 4 of the UCPR – Outlines the form of pleadings in order to ensure transparency, clarity
and efficiency in the most important documents of any proceeding.
 Only the effect, not the actual words, of documents and statements referred to in the
pleadings must be set out
 In order to avoid ‘trial by ambush’ by which a defendant may be taken by surprise,
there are certain matters specified in UCPR r14.14 that a plaintiff must specifically
plead.

UCPR 2005 (NSW) rr 14.6 – 14.11, 14.14, 14.17 14.20, 14.22, 14.23

Part 14 – Pleadings
Division 3 – forms of pleading generally

14.6 Pleadings to be divided into paragraphs (as per facts)

 If a pleading alleges or otherwise deals with several matters:
a) The pleading must be divided into paragraphs, and
b) Each matter must, so far as convenient, be put in a separate paragraph, and
c) The paragraphs must be numbered consecutively
14.7 pleadings to contain facts, not evidence
 Subject to this part, part 6 and part 15, a party’s pleading must contain only a
summary of the material facts on which the party relies, and not the evidence by
which those facts are to be proved.

14.8 Pleadings to be brief

 A pleading must be as brief as the nature of the case allows

14.9 References in pleadings to documents and spoken words

If any document or spoken words are referred to in a pleading:
a) The effect of the document or spoken words must, so far as material, be stated, and
b) The precise terms of the document or spoken words must not be stated, except so far
as those terms are themselves material.

14.10 Certain facts need not be pleaded

A party need not plead a fact if:
o The fact is presumed by law to be true, or
o Burden of disproving the fact lies on the opposite party, except so far as may
be necessary to meet a specific denial of that fact by another party’s pleading.

14.11 Conditions present presumed to have been met

If it is a condition precedent necessary for a party’s case in any pleading that:
a) A thing has been done, or
b) An event has happened, or
c) A state of affair exists, or has existed at some time or times, or
d) The party is ready and willing, or was at all material times ready and willing, to
perform an obligation, a statement to the effect that the condition has been satisfied is
taken to be implied in the party’s pleading.

14.14 General rule as to matters to be pleaded specifically

1. In a statement of claim, the plaintiff must plead specifically any matter that, if not
pleaded specifically, may take the defendant by surprise.
2. In a defence or subsequent pleading, a party must plead specifically any matter:
a. That, if not pleaded specifically, may take the opposite party by surprise, or
b. That the party alleges makes any claim, defence or other case of the opposite
party not maintainable, or
c. That raises matters of fact not arising out of the proceeding pleading.
3. Matters which must be pleaded pursuant to sub-rule (2) include (but are not limited
to) fraud, performance, release, statute of limitation, extinction of right or title,
voluntary assumption of risk, causation of accident by unknown and undiscoverable
mechanical defect and facts showing illegality.

14.17 New matter may be raised in pleading

A party may plead any matter even if the matter has arisen after the commencement of the
proceedings.

14.18 Pleadings to be consistent as to allegations of fact

1. A party must not in any pleading make an allegation of fact, or raise any ground or
claim, inconsistent with any of his or her previous pleadings.
 2. Sub-rule (1) does not affect the right of a party to make allegations of fact, or raise
grounds or claims, in the alternative.

14.19 Pleadings may raise points of law

A pleading may raise any point of law

14.20 Pleading the ground issue

A pleading may not plead the general issue

Division 4 – Verification of pleadings

14.23 Verification of certain pleadings

1. This rule applies to proceedings in the supreme court and the district court.
2. A party’s pleading (including any amendment of the pleading) must be verified by
affidavit.

Pleadings are said to be closed on the delivery of the last pleading (very often the defence,
but sometimes the reply).
 When pleadings are closed each party must by their pleadings have given adequate
notice of the case to be made at trial.
 Pleadings influence the whole of the proceedings. They are the basis for parties to
decide whether to admit certain facts not in dispute.
 Making admissions can be an important means of reducing costs and saving time so
that the length of the trial is reduced. The pleadings limit the extent of discovery and
interrogatories and govern the extent of the relevant evidence.
Material Facts:
 The pleader must start with the cause of action or defence and its elements. The
material facts will be those facts that are critical to support each of the elements of the
cause of action.
 Goldsmith v Sandilands (2002) – Gleeson CJ said that:
o The facts in a civil action case emerge from the pleadings, which in turn, are
framed in light of the legal principles governing the case. Facts relevant to
facts in issue emerge the particulars and the evidence. The function of
particulars is not to expand the issues defined in the proceedings, but to “fill in
the picture of the P’s cause of action with information sufficiently detailed to
put D on his guard as to the case he has to meet and to enable him to prepare
for trial”
o The primary rule of evidence is that a court will receive, and will only receive,
evidence that is relevant to the issues as defined by the pleadings. Evidence is
relevant if it could rationally affect, directly or indirectly, the assessment of
the probability of the existence of a fact in issue in the proceeding [relevance
in the Evidence Act 1995 (NSW).
o Palmer v The Queen [1998] – the general rule that relevant evidence will be
received is qualified by other rules based upon considerations of justice, or
practicality.
 Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association
of Western Australia (1987) 13 FCR 413 – principles outlining specificity required
for pleadings:
 o In Bruce v Odhams Press Ltd it was said to be insufficient merely to allege in
general terms a cause of action. The cause of action must be alleged with
particularity. Scott LJ gave the following example:
 A plaintiff must state sufficient particulars (e.g. time and date) of his
alleged cause of action, which will enable the defendant either to admit
it or deny it or otherwise plead a defence to it.

Evidence:
 The means by which the material facts are to be proved is evidence.
o Oral testimony of witnesses called to trial
o Evidence adduced through documents
 Evidence should not be pleaded – UCPR r 14.7
o Meaning that unless specific words in a document or a conversation are
critical to supporting an element of a cause of action, the pleader should not
plead details of the conversation or quote the contents of the document –
UCPR r 14.9

No conclusions of law as material facts:

 Although the UCPR r14.19 permits a party in its pleading to raise any point of law,
pleadings should not contain mere allegations or conclusions of law.
 A statement of claim must identify the cause of action, but simply identifying the
cause of action will not suffice unless the material facts supporting that cause of
action are pleaded as well.
o E.g A P alleging in the SOC that the D negligently caused damage to the P and
does not provided any further information about the acts of negligence, a
conclusion of law is being presented as a material fact
 In Kirby v Sanderson Motors Pty Ltd [2002] – In Hodgson JA opinion:
o (1) “Material” means material to the claim, that is, to the cause or causes of
action which are relied on.
o (2) The general requirement to avoid surprise means that material facts must
be stated in such a way that a defendant can understand the materiality of the
facts, that is, how they are material to a cause of action.
 In Markisic v Department of Community Services of New South Wales (No 2) [2006] -
pleading “should convey just what cause or causes of action are being relied on”, and
it follows that it should also enable it to be seen with clarity what facts are said to
make out the cause or causes of action.
o It is not sufficient simply to assert conclusions of law, such as that a common
law duty of care is owed; the pleading must intelligibly state the facts on
which the plaintiff relies for the existence of the duty of care
 Up to Surpise on p.g. 508

Note: See rule 35.3 as to who may make such an affidavit.

3. The affidavit verifying a pleading must state:
a. As to any allegation of fact in the pleading, that the deponent believes that the
allegations are true, and
b. As to any allegations of fact that the pleading denies, that the deponent
believes that the allegations are untrue, and
 c. As to any allegations of fact that the pleading does not admit, that after
reasonable inquiry the deponent does not know whether or not the allegations
are true.
4. If the despondent is unable to make an affidavit that complies with sub-rule (3) in
relation to all parts of a pleading, the affidavit may comply with so much of that sub-
rule as can be complied with and state why the affidavit does not comply with the
remained of that sub-rule.
5. Subject to any order of the court, an affidavit made in accordance with sub-rule (4) is
taken to comply with sub-rule (3).
6. Unless the court otherwise orders, the affidavit verifying a pleading must be
subscribed to the pleading.