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

CATCHWORDS

PRACTICE AND PROCEDURE - pleading - statement of claim - material facts - level of particularity required - the modern system of pleading - whether it would be open to the applicant upon his statement of claim to prove facts at trial which would constitute a cause of action - no point of general interest involved.

Federal Court Rules Order 11 r.16

Pancontinental Mining Ltd v. Posgold Investments Pty Ltd (1994) 121 ALR 405

Banque Commerciale SA en Liquidation v. Akhil Holdings Ltd (1990) 169 CLR 279

Mutual Life & Citizens' Assurance Co Ltd v. Evatt (1970) 122 CLR 628

Bond Corporation Pty Ltd v. Thiess Contractors Pty Ltd (1987) 14 FCR 215

Kernel Holdings Pty Ltd v. Rothmans of Pall Mall (Australia) Pty Ltd (3 September 1991, unreported No. 557/1991, French J.)

Concrete Constructions (NSW) Pty Ltd v. Nelson (1990) 169 CLR 594

Beach Petroleum NL v. Johnson (1991) 105 ALR 456

Bruce v. Odhams Press Ltd [1936] 1 KB 697

Rubenstein v. Truth & Sportsman Ltd [1960] VR 473

Philips v. Philips (1878) 4 QBD 127

LIAM BARTLETT v. SWAN TELEVISION & RADIO

BROADCASTERS PTY LTD

No. WAG 53 of 1995

CARR J.

PERTH

4 AUGUST 1995

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY ) No. WAG 53 of 1995

GENERAL DIVISION )

B E T W E E N: LIAM BARTLETT

Applicant

and

SWAN TELEVISION & RADIO

BROADCASTERS PTY LTD

(ACN 008 689 745)

Respondent

CORAM: CARR J.

PLACE: PERTH

DATE: 4 AUGUST 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The motion be dismissed.

2. The respondent pay the applicant's costs of the motion.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT )

OF AUSTRALIA )

WESTERN AUSTRALIA )

DISTRICT REGISTRY ) No. WAG 53 of 1995

GENERAL DIVISION )

B E T W E E N: LIAM BARTLETT

Applicant

and

SWAN TELEVISION & RADIO

BROADCASTERS PTY LTD

(ACN 008 689 745)

Respondent

CORAM: CARR J.

PLACE: PERTH

DATE: 4 AUGUST 1995

REASONS FOR JUDGMENT

Introduction

This is a motion by the respondent to strike out parts of the applicant's statement of claim. The consequence of such a striking-out would be to remove so much of the applicant's claim as is based on an allegation that the respondent has contravened s.52 of the Trade Practices Act 1974 (Cth) ("the Act"). To understand the questions which arise for determination in this interlocutory application it is necessary to outline in summary the relevant allegations made in the statement of claim.

The Statement of Claim

In paragraph 1 of his statement of claim the applicant, Mr Liam Bartlett pleads that the respondent, Swan Television & Radio Broadcasters Pty Ltd ("Swan Television") is and was at all material times, a trading corporation for the purposes of the Act and has been carrying on business as a television broadcaster. Paragraphs 2, 3, 4 and 5 plead the making of a contract between Mr Bartlett and Swan Television, the terms of that contract and the variation of those terms. In summary, those paragraphs plead:

. that Mr Bartlett would be employed by Swan Television in the position of "Anchorperson" of its evening news bulletin for the period of three years commencing on 25 January 1993;

. that by a variation of the agreement, other duties were required of Mr Bartlett.

. the details of Mr Bartlett's remuneration as varied, and

. there was an implied term in the agreement that Swan Television would permit Mr Bartlett to act as Anchorperson during the whole of the period of his employment.

Paragraph 6 pleads that Mr Bartlett commenced employment by Swan Television as Anchorperson on 25 January 1993.

Paragraphs 7 to 12, both inclusive, are the paragraphs which the respondent by this motion seeks to have struck out. Paragraph 7 pleads that on 4 April 1995 Swan Television published in the course of its business a media release ("the Media Release"). The Media Release is set out in full in paragraph 7 but for present purposes it is sufficient to refer to the first paragraph and 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

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:

"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

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