Bartlett L. v Swan Television & Radio Broadcasters Pty Ltd [1995] FCA 638

"The function of pleadings is to state with sufficient clarity the case that must be met ... In this way, pleadings serve to ensure the basic requirements of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision." In Pancontinental Mining Ltd v. Posgold Investments Pty Ltd (1994) 121 ALR 405 at p.414 Beaumont J. referred to the modern system of pleading. The modern system of pleading is to be contrasted with the common law system which the Privy Council was constrained to apply in Mutual Life & Citizens' Assurance Co Ltd v. Evatt (1970) 122 CLR 628 at p.631. At the same page, the Board referred to the modern system of pleading which applied in England by way of contrast to that which then applied in New South Wales. Beaumont J. in Pancontinental applied the modern system of pleading referred to in Evatt's case and described it in the following terms: "... Under the modern system of pleading, the question is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the applicant upon the pleadings to prove facts at the trial which would constitute a cause of action." I now turn to each of the paragraphs in the statements of claim which are challenged by the respondent. Paragraph 7. It is quite true, as the respondent says, that an essential element of a claim for damages under s.82 of the Act is that the loss or damage be suffered by conduct of the respondent. It is also true that as French J. observed in Bond Corporation Pty Ltd v. Thiess Contractors Pty Ltd (1987) 14 FCR 215 at p.222: "The material facts establishing the necessary causal link should be pleaded. In cases of contravention of s.52 said to be constituted by misrepresentation this will generally require more than ... "by reason of such conduct"."

I would respectfully agree with that observation but, as I observed in argument, I would note the use of the word "generally". In my view, much depends on the particular circumstances of the matter in question. Here the allegedly misleading or deceptive conduct which is said to have caused the loss is confined to within a very narrow compass. Paragraph 11 of the statement of claim defines the relevant misleading or deceptive conduct as being the conduct described in paragraphs 7, 8, 9, and 10 of the statement of claim. That is, publication in the course of the respondent's business, of a media release carrying a representation that the parties had mutually agreed that Mr Bartlett would finish his duties as Anchorperson on Friday May 26, the untruth of that representation and the fact that it was made in trade and commerce. Bearing in mind the test under the modern system of pleading, to which I have referred above, I consider that it would be open to the applicant upon his statement of claim to prove facts which would establish the publishing of the Media Release, the representation that in doing so the respondent represented that it and Mr Bartlett had mutually agreed that he would finish his duties as Anchorperson on Friday May 26, the untruth of that representation and that it was made in trade or commerce. On that test, in my view, the respondent's challenge to paragraph 7 fails. Furthermore, when one has regard to the function of pleadings as summarised in the passage from Banque Commerciale set out above, in my opinion paragraph 7 tells the respondent what the applicant's case is and sufficiently defines the issue. The applicant's case is not a complex one.

I now turn to the complaint that paragraph 10 pleads a conclusion and that the statement of claim does not set out what material facts are relied upon for the assertion that the representation was made "in trade or commerce". Paragraph 10 of the statement of claim does plead a conclusion. It also, in my view, pleads a material fact. In Kernel Holdings Pty Ltd v. Rothmans of Pall Mall (Australia) Pty Ltd (3 September 1991, unreported No. 557/1991, at p.7) French J. said: "I do not accept that the pleading of something which can be described as a conclusion cannot also be a pleading of a material fact. The real issue in a case where such an objection is raised is whether the facts are pleaded at too great a level of generality." I respectfully agree with that statement. The question is whether paragraph 10 is pleaded too generally. In my opinion, an assessment of paragraph 10 needs to take place in the context of the whole of the material facts pleaded in the statement of claim. Those include that: . Swan Television is a corporation which at all material times carried on business as a television broadcaster [and it was not in issue that such broadcasting was as a commercial television broadcaster]; . the parties made an agreement whereby Swan Television would employ Mr Bartlett as an Anchorperson and for other duties in the course of broadcasting television programmes; . there was publication in the course of that business of the Media Release carrying the representation complained of. In Concrete Constructions (NSW) Pty Ltd v. Nelson (1990) 169 CLR 594 the High Court of Australia held that in the circumstances of that case, the facts pleaded did not give rise to a cause of action. As I see it, the relevance of Concrete Constructions to the present matter lies in the High Court's construction of the phrase "in trade or commerce". Their Honours held that a false statement by an employer to an employee as to the condition of a work site in the course of such employment was not conduct "in" trade or commerce. Trade or commerce, so the Court held, was concerned with the conduct of a corporation towards persons with whom it had or might have dealings in the course of those activities which, of their nature, bore a trading or commercial character and thus were "in" trade or commerce. Accordingly the foreman's statement to Mr Nelson concerning the condition of the work site in that matter was not conduct in trade or commerce. In the present matter, by contrast, there is pleaded publication by the respondent in the course of its business of a Media Release describing certain changes to news reading arrangements in its business of television broadcasting. Mr Siopis complains that paragraph 7 could encompass mere publication of that document to a Swan Television secretary. In my view that is not a fair or reasonable construction of paragraph 7, with all due respect to Mr Siopis. I refer to the New Shorter Oxford English Dictionary at page 2405 where "publish" is defined as "make generally known, declare or report openly, announce, disseminate". In my opinion, sufficient material facts are pleaded to enable Mr Bartlett at the trial of this application to prove facts which show that when the respondent published the Media Release that was conduct in trade or commerce. I refer to the matters summarised immediately above. I now turn to what I have found to be the hardest part of this motion and that concerns paragraph 12. The respondent challenges paragraph 12 on the basis that it is insufficient simply to state that the applicant suffered loss and damage without setting out the material facts. The present matter is not a complex one; in fact it is a very simple one, and in the context of the present matter, in my view, the material fact is that by reason of such conduct the applicant has suffered loss and damage. The rest, in my opinion, is a matter of particulars of loss or damage. Alternatively, if I am wrong in that conclusion I would respectfully adopt the observations of von Doussa J. in the case of Beach Petroleum NL v. Johnson (1991) 105 ALR 456. The particular passage to which I refer is at p.466 where his Honour, having first referred to the traditional cases of Bruce v. Odhams Press Ltd [1936] 1 KB 697 and Philips v. Philips (1878) 4 QBD 127 then said the following: "A strict distinction between material facts and particulars has tended to become more obscured as the years have gone by. The tendency now is towards narrative pleading as there is a growing concern that pleadings according to traditional rules do not adequately make known to the court and to the parties the nature of the opposing cases in complex matters. ... Technical objections raised to pleadings on the ground of alleged want of form will be received with less enthusiasm today than in times past. Nevertheless the pleadings, including particulars stated therein, must be adequate to disclose the case which the opposing party must meet at trial, and to disclose a reasonable cause of action." So, as I say, in the alternative, if I am wrong in my assessment that paragraph 12 does state sufficiently a material fact I rely on the observations of von Doussa J. and notionally disregard the word "particulars" in paragraph 12 and read on from the second line straight into the remaining three lines. On that basis, in my view, it is clear that the relevant paragraph states the material facts relied upon. For those reasons I reject the respondent's contention that paragraphs 7-12 of the statement of claim should be struck out on the ground that they disclose no reasonable cause of action. The Alternative Order Sought by the Respondent In respect of the alternative order sought by the respondent, the complaints concerning paragraphs 7, 10 and 12 cover much the same ground but with two additional matters relied upon by the respondent. First, the respondent complains that paragraph 7 is embarrassing because, so it is said, it does not plead in sufficient detail the material facts regarding publication of the Media Release. Embarrassment in the context of Order 11 rule 16 carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense. The list in not intended to be exhaustive. In my view, sufficient material facts concerning the publication have been pleaded. It may well be that the respondent requires further particulars of the extent of such publication to "... fill in the picture of the [applicant's] cause of action with information sufficiently detailed to put the [respondents] on [its] guard as to the case [it] has to meet and to enable [it] to prepare for trial" - Bruce v. Odhams Press Ltd [1936] 1 KB 697 at pp.712-713. If so, it should file a request for further and better particulars. The same applies to the complaint concerning the pleading of the words "in the course of business" as being embarrassing. There was no additional matter complained of in respect of paragraph 10. The additional complaint in relation to paragraph 12 was that it was not immediately apparent how Mr Barlett's reputation would have been damaged by a representation that he had agreed to finish his duties as Anchorperson. It is sufficient for present purposes to form the conclusion (which I have formed) that the pleading is not embarrassing within the meaning of the rule. The applicant has pleaded that by the respondent's conduct his reputation has been damaged in the eyes of television viewers and holders of other relevant broadcasting licences and their employees. It will be for the applicant at trial to establish that allegation as being true. Again, if the respondent requires further detail of this plea the remedy is to file a request for further and better particulars. In my view paragraph 12 is not an embarrassing pleading in the sense referred to above. It does not need particulars to cure it as a pleading but the provision of further particulars may be appropriate. That is not something which falls for decision today. I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment of Justice Carr. Associate: Date: 21 August, 1995 Counsel for the Applicant: Mr S.J. Archer Solicitors for the Applicant: Clayton Utz Counsel for the Respondent: Mr A.N. Siopis (with Mr B. Taylor) Solicitors for the Respondent: Parker & Parker Date of Hearing: 4 August, 1995 Date of Judgment: 4 August, 1995