Category Archives: pleadings

Appeals from the Local Court: when does a feeling of not getting a “fair go” become appealable?

One hundred thousand dollars is a lot of money for most people. With its jurisdictional limit now sitting at this height, the Local Court of NSW provides an important means of civil redress in this state.


Yet magistrates preside in an environment of increasingly busy courts whilst still having to meet a demanding standard of flexibility. They decide an accused’s liberty one day and then have to wrestle with the subtleties of a tricky little commercial matter the next. It is no easy task.


Putting natural inclinations to one side, perhaps this is why on some occasions, an unsuccessful party might feel as though the Court’s justice has been meted out in rather a rough and ready fashion. However, this is not always tantamount to error.


Below is a framework for assessing whether there are prospects that justify taking this next step; instead of just sucking up the loss and getting on with life.


They got the law wrong


This is the most basic of them all. If the magistrate has clearly misdirected themselves as to the correct legal principle/s you’re in good shape. Though you will need to demonstrate how this has affected the result.


Inadequacy of reasons


This is one that comes up a lot particularly when a magistrate has made their mind up but doesn’t feel inclined to consider and then say how they really got there. This is not an uncommon way for any of us to think and behave in everyday life and of course magistrates are no exception. Sometimes we just prefer the steak instead of the fish.


The guiding principle is that justice must not only be done but also be seen to be done. Reasons are the central means by which this end is achieved. It also enables the losing party to understand why they were unsuccessful and whether they have any grounds for an appeal. As the NSW Court of Appeal pointed out in Wiki v Atlantis Relocations (2004) 60 NSWLR 127 at 135-136:


It is not for nothing that in some bilingual countries the judgment of the court is given in the language of the unsuccessful party.   


One of the most succinct encapsulations of how the duty to give reasons operates in practice was given by Meagher JA in Beale v Government Insurance office of NSW (1997) 48 NSWLR 430 at 443 (and not surprisingly reads somewhat like a student manual on how to answer questions in a law exam). His Honour said a decision-maker should:


1. Refer to relevant evidence, but there is no need to refer to it in detail;


2. Set out any material findings of fact and any conclusions or ultimate findings of fact reached; and


3. Provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found.


Failure to take into account a material consideration


This normally arises where there is some test or set of elements to the cause of action one or a number of which the Magistrate has, on the face of the record (ie. the judgment), simply failed to factor into their reasoning process.




When the failure to account for a relevant matter becomes more a question of degree than failure to deal with it altogether, the focus turns more towards a question of reasonableness.


But it has to be something important enough to have had an effect on the result. The significance of the matter will therefore determine whether such a failure is truly an error (see Mason J’s well-known judgment in Minister v Peko-Wallsend (1986-87) 162 CLR 24 at 32). As Mason J said in Peko (at 41):


…in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no importance. The preferred ground on which this is done, however, is…that the decision is “manifestly unreasonable”.


This position was further developed in the recent High Court case of Minister for Immigration and Citizenship v Li [2013] HCA 18 where Hayne, Kiefel and Bell JJ described unreasonableness in terms of a decision lacking “an evident and intelligible justification”, ie. illogical.


Denial of Procedural Fairness


At its heart, a denial of procedural fairness involves some inability on the part of the aggrieved party (not self-inflicted) to put an essential part of one’s case before the magistrate and have it determined.


A common means by which this seems to take place in the Local Court is when the magistrate, perhaps in striving to deliver what they perceive to be the “right” result, goes outside the pleaded case.


It has been said on a number of occasions that the Local Court is not a ‘court of strict pleading’, but what does this really mean? What happens if a party runs and argues its case more loosely and then the court, sufficiently persuaded, follows that party so that eventually the case is decided in a manner which is somewhat different to how things look on the pleadings.


If you are on the wrong side of this situation, the first port of call is to see how your legal representative reacted to it at first instance.


Did they raise an objection (eg. relevance) to questions directed to the elements of the case not pleaded during cross-examination or when the evidence in chief was being led?


How was it dealt with in submissions (ie. was a submission made that this was not pleaded so the court should not decide the case on that basis)?


And thirdly, was the argument that the other party raised in submissions (but did not plead) met with as good an argument as could possibly be mustered under the circumstances? Otherwise, there is a risk that by not meeting the argument the party is taken to have acquiesced to it being ruled upon and potentially deciding the case.


For an HCA discussion of these matters see Dare v Pulham (1982) 148 CLR 658.


Beware of appealing factual findings

It is trite to say that in most instances findings of fact are not appealable. However, beware of a situation in which the appeal ground has as one of its foundations a challenge to the magistrate’s factual findings. Unfortunately, a party is normally stuck with those, however perverse they might seem. This is unless of course it forms part of that rather protean concept of a “mixed question of fact and law”, in which case it may be appealable with leave.


This is the moment at which you might consider giving me a call.

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The Abuse of “embarrassing and abuse of process”

The complaint “Your Honour, these pleadings are embarrassing and an abuse of process” is one that tends to get used quite loosely by some lawyers, particularly in lower courts. Of course these terms sound impressive and so we enjoy hurling them about, often as a veiled shorthand opinion about the prospects of an opponent’s case, or lack thereof.

However it is always worth asking, as a Supreme Court judge did to a colleague of mine the other day, “….but Mr Smith how is this an abuse of process and/or embarrassing.” In fact, at least as far an application for pleadings to be struck out for being embarrassing is concerned, the standard is quite high.

In Shelton v National Roads and Motorists Assn Ltd [2005] VSC 251 at [14] to [15] Tamberlin J said:

‘ “Embarrassment” in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense.‘ (emphasis mine)

If pleadings do not properly define the issues it has many adverse flow on effects, such as creating unfairness by disenabling an opponent to properly prepare their case and clouding the issue of relevance in the context of discovery and admissibility of evidence.

It is these kinds of prejudice, resulting in additional wasted expense, that should be pointed to in any application to strike out pleadings for being embarrassing.

The term abuse of process is even more serious when it comes to pleadings. Ritchies Commentary on the Civil Procedure Rules at [14.28.5] describes such claims as those which are “doomed to fail” or “untenable in the known or admitted circumstances”. That is, not even at the very least arguable. This would be have to be the slim minority of cases given that s347 of the Legal Profession Act (NSW) requires a solicitor to sign off on the reasonable prospects of any claim filed.

Before filing a motion on these grounds (eg. under UCPR 14.28) it is wise to have a close read of the pleadings to see if what you really need is just a few more particulars, rather than to have part or all of it struck out. Although the latter feels good and impresses a client, it is an application upon which it is difficult to succeed without strong grounds. Where possible, courts are obliged to have all issues prosecuted in any given set of proceedings and so will give a party the opportunity to do this unless they should be denied that right, through their own ineptitude or because there simply isn’t a claim/defence at all.

Although they sound impressive the terms “abuse of process” and “embarrassing” have a quite technical meaning and should only be used with proper justification, rather than as an accusatory yet hollow rhetorical device.

NB – for an example of a pleading that does fit within these rubrics see Stephen Warne’s blog post  “How not to plead a contract”.

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