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

d the last portion of that document. The first paragraph reads: "STW Channel Nine and Liam Bartlett today announced that Liam will finish News reading duties with the station on Friday, May 26. Tina Altieri will host Channel Nine's weekday 6.00 pm bulletin with Sports Presenter, Michael Thompson, until Terry Willessee joins the station in late June." The last portion of the Media Release as set out in paragraph 7 reads: Issued STW Channel Nine 4 April 1995 Media inquiries - Brian Rogers, Director of News: 09 449 9960 In paragraph 8 of the statement of claim it is alleged that by publishing the Media Release, Swan Television represented that it and Mr Bartlett had mutually agreed that Mr Bartlett would finish his duties as Anchorperson on Friday May 26 ("the Representation"). In paragraph 9 it is pleaded that the Representation was untrue in that Mr Bartlett had not agreed to finish his duties as Anchorperson on 26 May 1995 or upon any date prior to the conclusion of his period of employment. Paragraphs 10, 11 and 12 of the statement of claim read as follows: "10. The Representation was made by the Respondent in trade and commerce. 11. By reason of the matter set out in paragraphs 7, 8, 9 and 10 the Respondent engaged (sic) conduct which was misleading or deceptive or likely to mislead or deceive. 12. By reason of such conduct of the Respondent, the applicant has suffered loss and damage. PARTICULARS The reputation and standing of the applicant in the eyes of television viewers and holders of other relevant broadcasting licences and their employees have been severely damaged." The Respondent's Notice of Motion By its notice of motion the respondent seeks an order that paragraphs 7-12 of the statement of claim be struck out pursuant to Order 11 r.16 of the Federal Court Rules on the ground that they disclose no reasonable cause of action. Alternatively, the respondent seeks an order that paragraphs 7, 10 and 12 be struck out pursuant to the same rule on the grounds those three paragraphs are vague and embarrassing and may prejudice, embarrass or delay the fair trial of this application. The Relevant Rule Order 11 rule 16 provides as follows: "16. Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out." The Respondent's Challenge to the Statement of Claim The respondent says that paragraphs 7-12 of the statement of claim should be struck out as disclosing no reasonable cause of action, basically for two reasons. The first is that no material facts are pleaded in support of what is described as "the causative link" between the alleged contravention of s.52 of the Act and the loss and damaged claimed. In the absence of pleading such material facts, so it is submitted, there is no pleading to support an essential element of the cause of action and accordingly the pleading does not disclose a reasonable cause of action. The second basis for the respondent's challenge relates to the plea in paragraph 10 that the Representation was made by Swan Television "in trade and commerce". The complaint is that paragraph 10 pleads a conclusion without indicating what material facts are relied upon for that conclusion. The respondent, in its submissions, anticipated that the applicant would rely on the matters pleaded in paragraph 7 to support the assertion that the Representation was made in trade or commerce. The relevant assertion in paragraph 7 was that the respondent published the Media Release "in the course of its business". To that the respondent says that the words "in the course of its business" in themselves constitute the pleading of a conclusion without pleading any supporting material facts. Secondly, so it was put, it is quite possible for the Media Release to have been published in the course of the respondent's business but for such publication not to amount to conduct in trade or commerce. For example, Mr A. Siopis counsel (with Mr B. Taylor) for the respondent said that publication may have been to a secretary employed by Swan TV. The respondent argues that the applicant must plead specifically the facts and circumstances surrounding the publication and specifically to whom the publication was made to support an inference that the publication was made in trade or commerce. In the absence of the pleading of such material facts it was submitted that the statement of claim did not disclose a reasonable cause of action under s.52 of the Act. The alternative relief sought by the respondent in its notice of motion is the striking out of only paragraphs 7, 10 and 12. As to paragraph 7 it is said that the pleading of the words "in the course of business" is a conclusion and is therefore embarrassing in that it does not disclose to the respondent the case which it has to meet in relation to the question of whether the conduct was "in trade or commerce". Further, so the respondent submitted, paragraph 7 is an embarrassing pleading in that it does not plead in sufficient detail the material facts regarding the publication of the Media Release. The respondent says that the question of publication of the Media Release and the extent of publication or republication relied upon are obviously very material elements to a claim based on an alleged loss of reputation. For example, there is reference in the particulars of damage in paragraph 12 of the statement of claim to Mr Bartlett's standing in the eyes of "television viewers" having suffered. The respondent says that this leads to an inference that the Representation in the Media Release was published to the public at large. The respondent complains that there is nothing pleaded which would support any such basis for the applicant's claim to damages. As to paragraph 10, the respondent, in essence, repeats its complaints to which I have referred above. Similarly, in relation to paragraph 12, the respondent repeats the complaint concerning the absence of any pleading of material facts in support of the causative link between the alleged conduct and the damage sustained by the applicant and also the nature of the damage sustained. Further, the respondent says in its alternative complaint that it is not immediately apparent how the applicant's reputation would have been damaged by a representation that he had agreed to finish his duties as Anchorperson and that without more it is difficult to understand the "gist" of the complaint. The respondent likens this to the unusual type of damages claimed by the plaintiff in Rubenstein v. Truth & Sportsman Ltd [1960] VR 473. The Relevant Principles In Banque Commerciale SA en Liquidation v. Akhil Holdings Ltd (1990) 169 CLR 279 at p.286 Mason CJ and Gaudron J. summarised the function of pleadings in these terms: