no sufficient doubt
30 In his reasons for decision, Finkelstein J said that he would be guided in his disposition of the leave application by three factors. The first was that nothing should be done to jeopardise a timely trial of the case, unless that outcome would cause injustice. The second was that he would not insist upon perfect pleadings; but he would not force a defendant to defend a claim which is so badly pleaded that it would cause the defendant to suffer serious injustice, such as where the defendant could not understand the nature of the case that is being pressed or the case is obviously hopeless. The third factor was that he would avoid expressing even tentative views on the merits of the proposed claims, except to the extent that it is necessary to do so in order to strike out any part of the claim that had no real prospect of success.
31 The applicants submitted that Finkelstein J departed from the legal principles that ought to govern the grant of leave to file an amended cross claim. First, and most fundamentally, they submitted that Finkelstein J disregarded the rules of pleading and instead applied an erroneous principle to the effect that he would only refuse leave if the amended cross claims were so badly pleaded that they would cause the cross respondents to suffer serious injustice.
32 In its written submissions, Baker & McKenzie submitted that the correct starting point is that 'a pleading is liable to be struck out if it is liable to prejudice the fair trial of the proceeding by not disclosing the case to be put at trial'. It developed this argument by submitting that Finkelstein J failed to give proper weight to Baker & McKenzie's position in applying this basic requirement. It argued that the pleading was not framed with sufficient particularity, and that Finkelstein J failed to deal with the detailed arguments advanced by Baker & McKenzie as to the deficiencies in the pleading. The gravamen of the submission was that Finkelstein J erred in that he was prepared to tolerate defects in the pleadings, so long as they did not occasion substantial or serious injustice.
33 Munro advanced the same basic argument. It also submitted that, instead of applying proper pleading principles, Finkelstein J applied the strike out test of whether the pleading was obviously hopeless.
34 I do not read Finkelstein J's reasons for decision as departing from the application of the correct legal principles. Pleadings are a means to an end, and not an end in themselves: Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 ('Akhil') at 293 per Dawson J. Their essential function is to state with sufficient clarity the case that must be met, so as to ensure the basic requirement of procedural fairness: Akhil at 286 per Mason CJ and Gaudron J. In Dare v Pulham (1982) 148 CLR 658 at 664, the High Court said that pleadings and particulars have a number of functions: they furnish a statement of the case that is sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court.
35 The authorities do not lay down a standard of perfection in pleadings. In Akhil, Dawson J referred, with approval, to the statement by Isaacs and Rich JJ in Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517 that the function of pleadings is discharged when the case is presented with reasonable clearness, and any want of clearness can be cured by amendment or by particulars.
36 These propositions are not inconsistent with the authorities that state that particulars cannot be used to fill gaps in the material facts that must be alleged: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712 per Scott LJ; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109; and Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 ('Charlie Carter') at 419. That proposition is directed towards material facts that must be alleged to constitute a complete cause of action.
37 It can be difficult to distinguish between a material fact and a particular: Charlie Carter at 417 per French J. The difference often turns upon the level of generality at which the material facts are alleged in a particular pleading. Consistently with the rules of pleading, a cause of action can be pleaded at different levels of generality, depending upon the nature of the case and the subject matter in question. A pleader is not compelled to plead primary or evidentiary facts. Most pleadings will set forth the material facts at a level which involves some element of conclusion concerning the factual ingredients of the cause of action. But, whatever level of generality is adopted in the statement of claim, it must adhere to the basic principle that the purpose of pleadings is to define the issues and thereby inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it: Charlie Carter at 417. On the other hand, a pleading will infringe the applicable practice rules if it contains nothing more than broad conclusions asserted at such a high level of generality that the opposite party cannot understand the case it has to meet: see, eg, Trade Practices Commission v David Jones (Australia) Pty Ltd, supra, at 113-115.
38 In Charlie Carter, French J summed up the applicable principles at 417 by saying that:
'The sufficiency of the pleading may be judged first by reference to the necessary condition that it disclose a reasonable cause of action and secondly, by reference to the requirement for sufficient particularity that the respondents know in advance the case they have to meet.'
I am not satisfied that Finkelstein J departed, or intended to depart, from this principle.
39 The applicants argued that no account should be taken of the directions which Finkelstein J made for further particularisation of the cross claims. They relied essentially on two grounds: first, they submitted that the reasons for decision do not mention the prospect that any lack of particularity in the cross claims could be remedied by the provision of particulars; and secondly, they submitted that particulars cannot cure a defective pleading which does not set out the material facts that are required to constitute a reasonable cause of action. As to the first ground, I do not see why it should be assumed that Finkelstein J was oblivious to the possibility that any lack of particularity of the kind complained by the applicants could be cured by the provision of particulars. After all, his Honour made orders relating to particulars on 7 July 2006. As to the second ground, the applicants did not contend that the lack of particularity about which they complained had the consequence that the cross claims disclosed no reasonable cause of action against Baker & McKenzie and Munro.
40 More generally, I do not consider that Finkelstein J's orders granting leave to file the cross claims should be seen in isolation from the other orders which he made on 7 July 2006. In Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569 at [8] and [9], Merkel J said:
'In my view the Court's case management and individual docket system is such that it is well placed to ensure that there is no embarrassment or prejudice about the pleadings and proper particulars can be required to be provided at an appropriate time. At this point of time I am not satisfied by the evidence or the submissions on behalf of Esso that the pleadings are so wide that the resulting embarrassment or prejudice is such that Esso is unable to properly or adequately plead to the statement of claim or proceed with any other interlocutory steps.
…
Further, to the extent embarrassment might exist it is more properly dealt with by a requirement that particulars be provided rather than the pleading be struck out.'
To the extent that the cross claims are defective or do not strictly comply with the rules of pleading, any prejudice to the applicants is not irremediable. It is capable of being addressed by the provision of particulars or by the trial judge undertaking other appropriate case management steps as this action proceeds towards trial. If adequate particulars are not provided, the applicants could also move to strike out the unsupported allegations.
41 In determining to grant leave to file the cross claims, Finkelstein J was exercising a discretion that fell squarely within the realm of case management. It is clear from his reasons for decision that Finkelstein J weighed up several factors. He was satisfied that the amended cross claims adequately notified Baker & McKenzie and Munroe of the case they had to meet. On an objective assessment, he concluded that the causes of action against Baker & McKenzie and Munro were clear from the cross claims. He also considered that counsel for the applicants had demonstrated, by their submissions, that they understood the causes of action that were raised against them by the cross claims. On the other side of the ledger, Finkelstein J took into account the fact that there were, or may be, deficiencies in the manner in which the cross claims had been pleaded. It is reasonable to infer that his Honour considered that those deficiencies could be addressed by the provision of particulars, as to which he made directions. His Honour also took into account the stage of the proceedings, the adjournment of the proceedings to 20 November 2006, and the desirability of not jeopardising a timely trial of the case. In my opinion, this process of reasoning was open to his Honour. I do not consider that it discloses any error of principle warranting the grant of leave to appeal.
42 Like Finkelstein J, I consider that the basic claims alleged against each of the applicants are tolerably clear from the relevant cross claims. In the absence of any pleading or particulars identifying what facts were allegedly known, or ought to have been known, by Baker & McKenzie and Munro at the time that they engaged in the conduct pleaded against them, I may have reached a different conclusion about the grant of leave to file the cross claims. But this is irrelevant. The question I must consider on an application for leave to appeal is not whether an appellate court would exercise its discretion in the same way as the trial judge, but whether there is sufficient doubt that the primary judge's discretion miscarried because he failed to apply the correct legal principles so as to warrant reconsideration by the Full Court. In my opinion, the course which Finkelstein J followed was open to him, and it cannot be said that his decision discloses an error of principle justifying the grant of leave to appeal.
43 The applicants also submitted that Finkelstein J fell into error in the weight he attached to the importance of not jeopardising a timely trial of the action. In my opinion, Finkelstein J was entitled to have regard to the desirability of achieving a timely trial of the action. I do not consider that Finkelstein J elevated this consideration to such a level that it had the consequence that he did not apply the correct principles when he granted leave to file the cross claims.
44 The applicants argued that Finkelstein J assumed that any delay in the institution of the cross claims was the fault of Baker & McKenzie and Munro, and that he took this into account to their prejudice. I do not read his Honour's reasons for decision in that way. Finkelstein J referred to the lateness of the cross claims as a relevant objective fact, but he did not attribute that situation to the fault of Baker & McKenzie or Munro.
45 Lastly, the applicants submitted that Finkelstein J failed to take into account the fact that this was the fourth proposed amended cross claim put forward by CSL and the Directors. This submission counts cross claims which were circulated between the parties as well as those which were filed. Clearly, Finkelstein J was conscious of the background to the leave applications: his reasons state that cross claims were first filed on 30 June 2005, and a month or so earlier Finkelstein J had struck out earlier versions of the cross claims. I do not accept the applicants' submission and, in any event, I do not think it supports the grant of leave to appeal.