The anatomy of proper pleadings in a post-AA world

This NSW Court of Appeal decision confirms the form and content required of pleadings in historical abuse claims following the High Court decision of AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2.

In issue

• Whether the respondent’s Amended Statement of Claim was sufficiently pleaded, in light of the decision of AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2.

The background

The respondent was a student of St Paul’s College, Walla Walla (the college), who claims he was sexually abused by the boarding house master in or around 2001. The respondent commenced proceedings in the District Court, seeking damages in negligence from the college.

This judgment concerns an application made by the college to appeal orders of the District Court, which had granted leave to the respondent to file an Amended Statement of Claim (ASOC) and dismissed the college’s motion to strike out the claim. In essence, the college’s argument turned on the submission that the respondent’s ASOC was insufficiently particularised and consequently, did not adequately set out the case to be met by the college, and was otherwise embarrassing and liable for strike out. More specifically, the applicant contended that the ASOC did not plead material facts which sufficiently identified the case it had to meet in respect of the precautions which the respondent alleges it should have taken (i.e. it was a high level manner in which breach of duty had been pleaded). The Court of Appeal reserved judgment pending the High Court decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 (AA), following which, further submissions were made by the parties.

The decision at trial

In February 2026, the High Court handed down the judgment of AA wherein the majority held a non-delegable duty may be breached by the intentional criminal conduct of the duty-holder or their delegate. Liability in such circumstances is now, in effect, strict. The judgment also significantly impacted the way in which negligence claims for historic institutional abuse are to be pleaded. Prior to AA, establishing a breach of duty of care turned, in part, on the ‘foreseeability’ of the risk that an action may be taken, or an action was omitted, which would reasonably result in injury. Post-AA, however, and as elucidated by Kirk JA, all a claimant in such a case needs to plead is that:

1. they were a student at a school conducted by the defendant, such that the defendant owed them the established non-delegable duty of care
2. that the duty was breached – where it suffices to allege that the claimant was sexually or physically abused by a person for whom the defendant was responsible and this abuse occurred at a time and a place within the scope of the defendant’s duty, and
3. the abuse caused them harm.

Ultimately, the Court of Appeal accepted that, whilst the ASOC was certainly not a model pleading, the ‘sins’ of the pleading were minor and therefore ‘sufficient’ in a post-AA world, where previously the application may have been allowed in part for those same ‘sins’.

Implications for you

Poor pleadings are, unfortunately, a common and frustrating issue for defendant solicitors. It is difficult to draft a responsive defence to a claim which has not been sufficiently articulated. Consequently, responsive pleadings will largely end up as objections, and any answer particularised thereafter limited under cover of that objection. This has the practical effect of widening and further confusing the issues in dispute. For example, if a statement of claim has not framed a pleading correctly through careful word choice and sufficient detail such that the claim clearly establishes a proper cause of action, a responsive pleading is therefore not going to address or clarify the actual issue/s – resulting in a claim that is overarchingly unclear.

Common issues with pleadings include:

• wording or framing the cause of action incorrectly or very generally, without proper or accurate application of procedural principles per court rules and the mirrored common law
• legal and evidentiary conclusions or statements pleaded instead of material fact
• failing to provide enough particulars to support a pleading, and
• adopting a ‘more is more’ approach, including repetitive pleadings which go to the same issue or are otherwise bad at law and excessive particularisation of pleadings.

However, whilst some claims may be rectified by way of a responsive ‘lifeline’ defence pleading, there are some circumstances where an application will need to be made to the Court for strike out of the offending pleading/s because it is wholly unanswerable or unclear such that the nature of the claim cannot be understood at all. Jurisdictionally, in NSW and Victoria an application of this kind is the next step. In the Supreme Court of Tasmania, a more practical approach is taken to poorly pleaded claims. There is typically limited, if any, use of objections in a responsive defence pleading. Solicitors will, if required, engage in discussion via correspondence regarding the amendment of improper or insufficient pleadings until the pleadings are reframed so as to be sufficiently answerable, or otherwise brought before the Court as a ‘last resort’.

Given the increase in the number of historic abuse claims which are now litigated, particularly, for example, in Victoria where the institutional liability list of the Supreme Court has become one of the largest injury based lists within the Court, there is an even more pressing need for matters to only be brought before the Court if absolutely necessary.

This case serves a ‘refresher’ for practitioners (both plaintiff and defendant) on the anatomy of a proper claim, including the key principles of pleadings and particulars, and the relevant framing required when drafting pleadings to sufficiently establish duty of care and vicarious liability as causes of action.

This is particularly in circumstances where the scope of the ‘test’ which was formerly utilised to establish duty of care and breach has been widened and reframed by virtue of AA. Adopting the ‘best practice’ approach to pleadings as set out in this judgment, and thereby limiting applications to strike out, ensures that proceedings continue in a timely manner.