Ethics and - Gordon & Jackson

COMPETENCY IN PLEADINGS
In some cases the courts themselves have punished a lack of competency
and expertise of legal practitioners by way of refusal to accept what it
considers sub-standard pleadings.
Gunns Limited v Marr [2005] VSC 251, Bongiorno J. At a Directions
Hearing of the Matter, the Plaintiffs applied to file an amended Statement
of Claim some 360 pages long with 528 paragraphs against some 20
defendants. The Claim was filed in lieu of late Particulars of Claim,
however the court, in dismissing the Statement of Claim, stated that “the
function of a statement of claim is to set out with sufficient clarity the case
which the defendant must meet”, limit generality of the allegations and to
limit and define the issues to be tried. Bongiorno J found that the crossreferencing
of paragraphs failed to assist and in fact “often renders the
original paragraph at best ambiguous and at worst misleading”. The
pleadings were described as prolix and that the “Court will not tolerate
laxity of pleadings or deficiency of particulars to the disadvantage of those
against whom the proceeding is brought”.
His Honour went on to say that a new statement of claim should be
accompanied by a detailed table of contents or index, a glossary of every
term or phrase used in it which requires definition, and it should employ a
uniform method of referring to the parties.
Murphy v Council of the Municipality of Strathfield [2012] NSWSC 85
(17 February 2012), Schmidt J
Recent case relying on Gunns. Pleading struck out, amended pleadings
to be filed in proper form.
COMPETENCY IN ADVICE GIVEN
As in Gunns v Marr above, competency of legal practitioners is not
restricted to pleadings. Where advice is sought clients will not be
backward in seeking recompense where they consider the advice has
been bad, or at best insufficient.
In Austrust Ltd v Astley & Ors (1999) 197 CLR 1, the High Court
considered an appeal by Austrust against a Full Court ruling of the South
Australian Supreme Court.
The case involved a company seeking advice regarding changing its
business practice from managing Trusts in relation to deceased estates,
settlements, “conventional trusts” managed pursuant to non-trading trusts
with some property management trusts, to the field of commercial trading
trusts.
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