Today’s bounce ($0.02 on a random topic) – Gretel Tippett takes out the Australian netball’s most prestigious individual accolade. Go Gretel!

And the bucket ($0.02 on a legal principle) – limitation points in interlocutory stoushes.

Good on Gretel for winning the Liz Elis Diamond. 95%+ shooter! That’s what I call buckettttsssss. She’s a former basketballer in the WNBL, but at around the age of 20 made the switch to netball, and it seems to have paid off!

Now for the bucket. Just say you have a limitation argument – should you run a strike-out or summary judgment application? If it’s a case involving a contingent loss in particular, consider being cautious.

In Wardley Australia Ltd v WA (1992) 175 CLR 514 at 533, the High Court said it was “undesirable” that limitation questions of the kind in that case be decided ahead of a hearing “except in the clearest of cases”. Generally speaking, insufficient was known of the damage and circumstances it was sustained to justify a confident answer to the question of when loss was suffered – which is the date from which time usually runs.

So, as always, think carefully!

JD #bouncesandbuckets

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Today’s bounce ($0.02 on a random topic) is my sweet new umbrella. The bucket ($0.02 on a legal principle) is the role of particulars.

Check out my new umbrella. Courtesy of the legendary Justin Wong of Streeton Lawyers! This is my first barristerial one, so I’m excited!

It’s high quality – an ergonomically designed handle, solid metal tip, and a stylish navy blue.

And it even rained this week! That said, I didn’t have it, so I got drenched. Next time!

Now, to particulars. What is their role? In

Goldsmith v Sandilands [2002] HCA 31 at [2], Gleeson CJ said that the facts in issue in a civil case emerge from the pleadings – and facts relevant to facts in issue emerge from the particulars and evidence.

The function of particulars is not to expand on the issues defined by the pleadings, but to “fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on [his or her] guard as to the case [he or she] has to meet and to enable [him or her] to prepare for trial”.

So, think of particulars as providing information about the facts. If a factual matter is important, maybe it should be pleaded as a material fact.

JD #bouncesandbuckets

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Today’s bounce ($0.02 on a random topic): Equal pay for the Matildas! Great stuff!

The bucket ($0.02 on a legal principle): joinder – when should you do it?

It is being widely reported that the Matildas are about to reach a deal in which they get equal pay as their male counterparts, and share commercial revenue and prize money equally. That’s great news – good stuff by all those involved, and go the Matildas!

Now, joinder – when should someone be added as a party?

In John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [131], the High Court answered the question by agreeing with a submission that where the court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined.

So, if someone might be directly affected by the orders sought, that person probably should be a party to the case.

Alright, JD out. #bouncesandbuckets

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Today’s bounce ($0.02 on a random topic): my favourite player breaks his hand. Oh the humanity!

The bucket ($0.02 on a legal principle): privilege claims over part of a document. Is it possible?

Ah, Steph Curry. Innocently trying to score a bucket in today’s game. And what happens?

A huge Aussie, Aron Baynes, falls on his arm! ARROONNNN whaddya doing!!!

Aron possesses a physique suited to a front rower for Souths, and wood-chopping, but also knows his way around a basketball court.

These things happen I suppose. So, for the next while, I’ll have to get through, somehow.

Which leads me to the bucket – claiming privilege over only part of a document.

Is it all or nothing; or could just say 1 para of a without prejudice letter be excluded from evidence?

On Gladio v Buckworth [2015] NSWSC 922, the latter. At [363]-[366], McDougall J expressed the view that (for WPP) s 131(1)(a) could apply to only part of a letter, unless (for example) the rest of the letter was closely intertwined with the privileged material.

So, it’s not an all or nothing proposition. Important not only for evidence, but also likely discovery, NTPs, etc.

Alright, see ya. JD #bouncesandbuckets

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Today’s bucket ($0.02 on a random topic) – it’s felt like forever but finally the NBA is back!

The bounce ($0.02 on a legal principle) – pleading fraud: do it clearly, or not at all.

Ah yes, another season of the NBA is upon us. Should be a cracking one, with off season trades making the league more even than it has been in years.

I’m particularly keen to see Ben Simmons in Philly, and Joe Ingles in Utah – two great Aussies on really good teams. Both playing game 1 today. Welcome back NBA!

Now, let’s talk pleading fraud.

If you’re going to take the very serious step of making the allegation, it must be pleaded distinctly and with particularity and clearly proved – and if you do plead it (or if it’s pleaded against your client), the defendant is entitled to hold the plaintiff to the pleaded case (Krakowski v Eurolynx (1995) 183 CLR 563 at 573).

And, it will generally not be appropriate to mount fraud as a fallback claim, eg to an allegation of misleading conduct (see Forrest v ASIC (2012) 247 CLR 486 at [26]).

So, pleading fraud is one of those things that needs to be committed to fully, or not done at all.

See ya. JD #bouncesandbuckets

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Today’s bounce ($0.02 on a random topic) celebrates Aus’s very own new guitar world champ; and the bucket ($0.02 on a legal principle) is a pleading point – the best sort of point!

Congrats to Dylan Reavey, the 2019 Guitarist of the Year.

As a fan of funk, maestros and Mario, it was a cracking way to wake up today to watch him shredding his axe (aka playing his guitar) while wearing a Mario Kart hat and rocking a great hair and moustache combo.

GO DYLAN! Doing us proud.

Now for the bucket.

You’re doing a Defence.

You have to plead to an allegation which is not made directly against your client. Should you “does not plead”?

In Rockcote v FS Architects [2008] NSWCA 39 at [62]-[63], Campbell JA said that a “does not plead” is the same – for pleading purposes – as an admission.

So, when you are “not pleading” to a paragraph, just imagine you’re admitting, and do a gut-check.

Alright see ya. JD #bouncesandbuckets