NSW Drafting pleadings in a statement of claim in tort

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10 October 2020

I am new here and wondered if someone can answer my questions related to the statement of claim form 3B and the litigation process. My case is complex as it is in intentional torts however I have spent several months researching and I understand the difficulty in following court rules, limitations and related acts such as the Evidence Act 1995 and the CPA 2005.

As a self represented litigant (SRL) I have almost finalised by statement of claim for the District Court of NSW for intentional torts claim which includes compensatory, aggravated and exemplary damages largely based on injured feelings, conduct and manner of the defendant , etc which can't be calculated therefore are unliquidated damages left for the court to determine. The UCPR regulations 14.13 state that an amount for unliquidated damages are not be pleaded. At the same time 15.7 and 15.8 state that for exemplary and aggravated damages the facts and circumstances relied upon should be pleaded - which is fine and I have done that. I have worked out the compensatory, aggravated, exemplary and economic loss plus costs to arrive at a total value of my claim, and it appears to me that I should be only showing a $ amount for liquidated damages only (economic loss which is minor in $ terms) and state that I require relief for compensatory, aggravated, exemplary but not state any $ amounts .

1. How will the defendant know what the total amount I am claiming is if I can't plead an amount for compensatory, aggravated and exemplary (unliquidated) damages when I fill the statement of claim form 3B? Is this done in mediation and arbitration?

2. Referring to (1) when do I need to let the court know of what the $ amounts I am claiming are for unliquidated damages - is this in pre-trial? Do I need to show how I worked them out by referring to case laws?

3. Being torts I will be relying on case laws - should this be pleaded or do I just refer to them when arguing my case in court? Does the element of surprise as per 14.14 UCPR 2005 apply here?

4. I have been through a civil tribunal + appeal and a criminal case with the defendant which was in my favour and plan to adduce the evidence as per the hearsay and opinion rule exceptions of admissions in the Evidence Act 1995 to demonstrate the tendencies, admissions, state of mind, opinions of the defendant as per the tendency rule as the prior admissions of the defendant including documents and statements during cross examination by me are of significant probative value. In my pleadings do I need to plead that I intend to adduce the evidence of the previous representations (4 of) of the defendant in proceedings and refer to the relevant clauses of the Evidence Act 1995?

I hope I am talking somewhat like a lawyer :)

Thanks for any responses.