Committee) Inc v NRMA Insurance Limited

rules 8 Order 20 r 2 of the Rules, relied on by NRMA, provides, relevantly, as follows: "2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding - (a) no reasonable cause of action is disclosed; (b) ... ; or (c) ... , the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding." 9 Order 11 r 16 of the Rules, relied on by NRMA, provides, relevantly, as follows: "16 Where a pleading - (a) discloses no reasonable cause of action ... ; (b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or (c) ... , the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out." 10 NRMA's motion is concerned only with the content of the Pleading, not with the evidence proposed to be relied on by either party in relation to the underlying facts. Accordingly, I am not presently concerned with the substantive merits of AR's claim. 11 Order 4 r 6 of the Rules requires an application to be accompanied by an affidavit or a statement of claim. Subrule 6(2) requires the statement of claim to show "the material facts on which it is based". 12 Order 11 r 2(a) of the Rules provides, relevantly, that "a pleading of a party shall contain ... , a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved". Read together, O 4 subr 6(2) and O 11 rr 2 and 16 signify that the Pleading was required to contain a statement in summary form, which does not have a tendency to cause prejudice, embarrassment or delay, of the material facts of a reasonable cause of action for contravention of subs 47(1) (read with subs 47(7)) of the TP Act, but not of the evidence by which those material facts are to be proved. 13 The "material" facts are those facts, no more and no less, which are relied on as establishing all the essential elements of the cause of action; cf Bruce v Oldhams Press Ltd [1936] 1 KB 697 ("Oldhams Press") at 712-713 per Scott LJ. 14 The distinctions between material facts and evidence and between material facts and particulars are sometimes blurred in their application. Counsel for AR responded to several submissions of counsel for NRMA by asserting that a suggested deficiency in the Pleading could be overcome by a request for, and supply of, particulars. This is not so. 15 The requirement that material facts be stated has two purposes: the natural justice purpose of adequately informing the other party of the nature of the case alleged against that party; and the purpose of providing a basis for determining whether that alleged case, so exposed, constitutes a cause of action cognisable at law. Particulars serve only the former purpose. Consistently with the distinction, a respondent is required to plead to a statement of material facts, but not to particulars (Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 ("David Jones")) and it is not a function of particulars to remedy an omission of material facts (Oldhams Press, above; Rubenstein v Truth and Sportsman Ltd [1960] VR 473; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242). Particulars have a role to play where all the material facts have been pleaded but leave the other party inadequately informed of the case to be met; cf Oldhams Press, above. 16 In David Jones, above, applying the distinction between material facts and particulars, Fisher J struck out a statement of claim which, in substance, "pleaded" the terms of subpar 45(2)(a)(ii) of the TP Act and stated the material facts relied on as particulars. 17 Notwithstanding the well established distinction between material facts and particulars to which I have referred, a less strict view may be taken of that distinction now than was taken previously; cf Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. According to this view, the particulars contained in a statement of claim may be taken into account for the purpose of determining whether the statement of claim amounts to a statement of all the material facts. But even this more flexible view of pleading does not countenance the omission of material facts from the statement of claim regarded as a whole. Accordingly, if the Pleading, regarded as a whole, does not contain a clear statement of all the material facts on which AR relies, it is no answer to suggest that NRMA can request AR to supply particulars.