Apple Isle confusion over pleadings in a negligence claim … The potting machine out of action after a power surge … Poles and wires … How much pleading is necessary? … Only the facts, not the legal arguments … The Judicature Act … The common law in play … The Map … Janek Drevikovsky reveals all  

A full Apple Island bench had to remind HH Gregory Geason that, ever since the Acts’ adoption, there’s been no need for plaintiffs to address questions of law in their statements of claim.  

The appeal was the end result of more than seven years’ litigation between a plant nursery, Brocklands, and the state-owned poles and wires corporation, Tasmanian Networks Pty Ltd. 

In December 2010, a tree-fall took out power lines near Brocklands’ property in Winkleigh, north-west of Launceston.  A circuit breaker failed, causing a power-surge, which destroyed components of Brocklands’ potting machine. 

Brocklands brought an action in breach of statutory duty and (so it thought) negligence, putting the damages at $2.5 million. 

In 2018, the action failed before Geason J, who inter alia held the plaintiff had not properly pleaded their common law claim.  

By the time of the trial, the plaintiff’s statement of claim had a clear reference to “negligent breach of duty” and contained particulars of negligence. Counsel for the plaintiff Ken Read SC gave his opening on the basis that common law negligence was in play. 

Counsel for the defendant, Bruce McTaggart SC, had very different ideas:

“The only duty that’s pleaded, your Honour, is statutory duty, that is, a duty arising under the Industry Act … There is no plea of any Commonwealth [sc. common law] duty, and the opening today, it’s the first time in approximately five years of litigation that such a duty has been alleged.”

Read tried smoothing things out with the learned judge: 

“Miss the mark” is exactly what Geason J concluded the pleadings did. He considered it a major failing for Brocklands not to plead what duty they were owed by Tasmanian Networks. 

“In the circumstances, the defendant quite properly asks ‘is the plaintiff relying upon an established duty or a novel one?’ The pleadings should say. It should not be left to a closing submission as it was by the plaintiff.”

Negligence was out of the picture, and because statutory breach also failed, the plaintiff’s action was dismissed. 

The appeal bench, with Chief Justice Alan Blow and Justices Stephen Estcourt and Robert Pearce, took a different view. They thought it was “plain” that negligence had been adequately pleaded. 

That was because all plaintiffs are required to plead are the material facts that entitle them to relief. As Blow CJ put it:

“There is no need to plead conclusions of law. That has been the situation ever since the adoption of the Judicature Act system of pleading.”