FEDERAL COURT OF AUSTRALIA

Cadence Asset Management Pty Ltd v Concept Sports Limited [2006] FCA 944

PRACTICE AND PROCEDURE – application for leave to appeal interlocutory orders –where application set down before single judge – whether decision attended with sufficient doubt to warrant reconsideration by Full Court – whether substantial injustice would result from refusal of leave to appeal – whether trial judge applied correct principles in granting leave to file amended cross claims – whether cross claims sufficiently plead material facts and allow cross respondents to know the case they have to meet – leave to appeal refused

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 25(2)

Yorke v Lucas (1985) 158 CLR 661 cited

Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied

Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (2004) 63 IPR 373 cited

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 cited

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 cited

House v The King (1936) 55 CLR 499 cited

Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 cited

Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 cited

Auspine Ltd v HS Lawrence & Son Pty Ltd (unreported, Full Federal Court, von Doussa, Mansfield and Goldberg JJ, 24 July 1998) cited

Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 followed

Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269 applied

Minister for Immigration and Multicultural and Indigenous Affairs v WAKX (2005) 218 ALR 274 cited

Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 cited

Dare v Pulham (1982) 148 CLR 658 cited

Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 cited

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

H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 cited

Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 cited

Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413 cited

Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569 cited

CADENCE ASSET MANAGEMENT PTY LTD and OTHERS v CONCEPT SPORTS LIMITED, GARY MARCH, LEON DAPHNE, JEFFREY TAYLOR, STEVEN ROLTON, DAVID CARTER, JOHN MOORE, TIM JONAS and OTHERS (carrying on business as PITCHER PARTNERS) and CGU INSURANCE LTD, BAKER & MCKENZIE (A FIRM) and SCOTT MUNRO (trading as MUNRO LEGAL)

VID 782 of 2006

CADENCE ASSET MANAGEMENT PTY LTD and OTHERS v CONCEPT SPORTS LIMITED, GARY MARCH, LEON DAPHNE, JEFFREY TAYLOR, STEVEN ROLTON, DAVID CARTER, JOHN MOORE, TIM JONAS and OTHERS (carrying on business as PITCHER PARTNERS) and CGU INSURANCE LTD, BAKER & MCKENZIE (A FIRM) and SCOTT MUNRO (trading as MUNRO LEGAL)

VID 784 of 2006

YOUNG J

27 JULY 2006

MELBOURNE

THE COURT ORDERS THAT:

1.             The second cross respondent’s notice of motion dated 14 July 2006 be dismissed.

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

THE COURT ORDERS THAT:

1.The third cross respondent’s notice of motion dated 14 July 2006 be dismissed.

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

REASONS FOR JUDGMENT

1                     By notices of motion dated 14 July 2006, the second cross respondent (‘Baker & McKenzie’) and the third cross respondent (‘Munro’) in proceeding VID 1605 of 2004 have each applied for leave to appeal from interlocutory orders made by Finkelstein J on 7 July 2006. By those orders, Finkelstein J gave the first defendant (‘CSL’), the second, fourth and fifth defendants (‘the Directors’) and the eighth defendant (‘Pitcher Partners’) leave to file and serve cross claims upon, inter alia, Baker & McKenzie and Munro.

2                     Finkelstein J also made consequential orders and directions as to the interlocutory steps which should be undertaken following the filing and service of the cross claims. Amongst other things, Finkelstein J directed that any request for further and better particulars of the cross claims be served by 21 July 2006, and that any answering particulars be served by 9 August 2006. As for the trial date, Finkelstein J ordered that the trial fixed for 4 September 2006 be adjourned and refixed for four weeks commencing 20 November 2006.

3                     Pursuant to the orders made by Finkelstein J on 7 July 2006:

(a)           CSL filed an amended cross claim on 7 July 2006;

(b)          the Directors filed an amended cross claim on 7 July 2006; and

(c)           Pitcher Partners filed a cross claim against, inter alia, the Directors, Baker & McKenzie and Munro on 12 July 2006.

background

4                     Broadly stated, the cross claims seek to recover damages, contribution or indemnity from Baker & McKenzie and Munro in connection with the preparation and distribution of a prospectus for a public offering of shares in CSL. The alleged deficiencies in the prospectus comprise misleading statements or omissions that contravened ss 710, 728 or 1041H of the Corporations Act 2001 (Cth) or s 9 of the Fair Trading Act 1999 (Vic) (‘FTA’). The plaintiffs have sought damages from the defendants based on the same alleged contraventions.

5                     On 14 June 2006, Finkelstein J struck out earlier amended cross claims by CSL and the Directors. In addition, Finkelstein J directed that any draft proposed amended cross claims be served on the relevant parties and provided to the Court by 29 June 2006 and that any application for leave to file further amended cross claims would be heard on 3 July 2006.

6                     In the result, Finkelstein J heard applications by CSL and the Directors for leave to file and serve further amended cross claims on 4 July 2006. His Honour reserved his decision and delivered judgment, supported by oral reasons, on 7 July 2006. His Honour indicated that his reasons would be published in written form after he had reviewed the transcript.

7                     On 7 July 2006, Pitcher Partners made an oral application for leave to file a cross claim against the Directors, Baker & McKenzie, Munro and another party. Finkelstein J acceded to this application and made an order that Pitcher Partners file and serve any cross claims on or before 12 July 2006.

8                     On 20 July 2006, Finkelstein J published written reasons for his decision.

the cross claims by csl and the directors

9                     Baker & McKenzie and Munro (collectively ‘the applicants’) contend that Finkelstein J erred in granting CSL and the Directors leave to file and serve the further amended cross claims. They contend that the amended cross claims do not adequately identify the case that they will have to meet.

10                  In broad outline, the amended cross claims filed by CSL and the Directors allege that Baker & McKenzie and Munro were retained to provide legal services in connection with the public offering of shares in CSL. The relevant services included drafting a prospectus and reviewing and advising on its contents. CSL and the Directors allege that, in providing those legal services, Baker & McKenzie and Munro breached an implied term, alternatively a duty, to exercise all due care and skill. Both cross claims also allege that on or about 9 June 2004 Baker & McKenzie and Munro advised that they were not aware of any issue that had arisen that could be considered materially adverse to an investor or that was required to be disclosed by the provisions of the Corporations Act.

11                  There are some significant differences between the cross claims. Amongst other things, CSL’s cross claim alleges that Baker & McKenzie and Munro each represented to CSL and to its board that the prospectus contained all material information and did not contain any statement that was misleading or deceptive, and that they had a reasonable and proper basis for making those representations. The cross claim defines these representations as ‘the Compliance Representations’, and alleges that they were untrue or misleading. It also alleges that a representative of Baker & McKenzie was present at a board meeting of CSL on 1 June 2004 at which management reports for the period from 1 January 2004 to 31 March 2004 and management accounts for the period from 1 January 2004 to 30 April 2004 were made available to those attending. There is no allegation that any representative of Munro was present at this board meeting. CSL’s cross claim adopts the definitions of ‘Omitted Information’, ‘Express Prospectus Representations’ and ‘Implied Prospectus Representations’ which are used in the plaintiffs’ statement of claim. The applicants did not suggest that there was any lack of clarity or precision in the identification of the material omissions from, or misleading statements contained in, the prospectus. The Directors’ cross claim does not adopt these definitions because the relevant allegations of breach of duty against Baker & McKenzie and Munro are confined to the advice that they gave in relation to the financial information which became available at the board meeting on 1 June 2004.

12                  So far as CSL’s cross claim is concerned, the applicants focused their criticisms upon paragraphs 32, 33 and 37. At the time of the leave application, these paragraphs provided as follows:

‘32. If, which is expressly denied, CSL is found liable for the Plaintiffs Damages based on the alleged Contravening Conduct (or any part thereof), then, that Contravening Conduct was caused by the conduct (including omissions) of Baker & McKenzie or Munro or both of them in that each failed to exercise all due care and skill in their respective provision of Baker & McKenzie Service and the Munro Services and in the making of the Compliance Representations by:

(a) drafting a prospectus for the Concept Sports IPO that:

(i) included the Omitted Information so as to not contravene the Prospectus Disclosure Requirements;

(ii) did not contain the Express Prospectus Representations and the Implied Prospectus Representations at all or a way that constituted a contravention of the Prospectus Disclosure Requirements;

(b) failing to advise CSL and its board that the Prospectus:

(i) ought to include the Omitted Information;

(ii) that the Express Prospectus Representations and the Implied Prospectus Representations constituted a contravention of the Prospectus Disclosure Requirements;

(c) failing to draft a supplementary or replacement prospectus for the Concept Sports IPO that:

(i) included the Omitted Information so as to not contravene the Prospectus Disclosure Requirements;

(ii) to correct or qualify the Express Prospectus Representations and the Implied Prospectus Representations so as to not contravene the Prospectus Disclosure Requirements;

(d) failing to design and conduct the Due Diligence Process that entitled CSL and it board to rely on a Due Diligence Defence.

33. If CSL is liable for the Plaintiffs’ Damages (which is denied), then CSL will suffer loss and damage by reason of each of the breaches set out in paragraph 32 hereof and Baker & McKenzie and/or Munro are liable to indemnify CSL for the Plaintiffs Damages.

…

37. Further, or in the alternative, If CSL is liable for the Plaintiffs Damages (which is denied), then in the premises, Baker & McKenzie or Munro or both of them are also liable to the plaintiff for the same damage by reason of section 729 as a person named in the Prospectus with their consent or by reason of sections 1041I of the Corporations Act as a person involved in the contravention by CSL of section 1041H and by reason of section 23B of the Wrongs Act 1958 (Vic) (the “Wrongs Act”) each is liable for an order of contribution in respect of the Plaintiffs Damages.’

13                  The applicants’ central contention was that paragraph 32, even when read with the earlier allegations in the cross claim, did not plead the material facts which would identify how and why it is contended that the actions taken by each firm amounted to a breach of its contractual obligation or duty to exercise due care and skill. They submitted that the pleading tended to assume that if the prospectus contravened the provisions of the Corporations Act or the FTA for the reasons alleged by the plaintiffs, it necessarily followed that Baker & McKenzie and Munro had breached their respective duties of care. They submitted that this conclusion did not follow: it all depended on what facts were known, what facts ought to have been known, and what facts would have been known by each firm had it exercised due care and skill and/or had it designed and conducted a proper due diligence program.

14                  As for paragraph 37, the applicants submitted that the paragraph did not plead the material facts which identified how each firm was involved in any contravention of s 1041H of the Corporations Act. They pointed out that ‘involvement’ requires knowledge of the essential facts, matters or things that constitute the contravention: Yorke v Lucas (1985) 158 CLR 661.

15                  The cross claim by the Directors is structured in a broadly similar way, but the relevant allegations of breach of duty are much narrower. The applicants focused their criticisms on paragraphs 23 and 24 of the Directors’ cross claim, which at the time of the leave application provided as follows:

‘23. If the Principals are found liable to the plaintiffs for the plaintiffs’ damages or any part thereof as a result of the claimed conduct, the conduct was caused by Baker & McKenzie and/or Munro by breaching their duty to exercise all due care and skill in the provision of legal services by failing to take the following steps:

(i)            advising Concept Sports and the Principals that the June 2004 financial information ought to have been included in the prospectus;

(ii)          advising that a revised prospectus containing the June 2004 financial information ought to have been included;

(iii)        advising that disclosure of the June 2004 financial information shortly after 10 June 2004;

(iv)        advising prior to 10 June 2004 that the IPO should not proceed;

Particulars

If Bakers and/or Munro had carried out their duties and provided the legal advice with the appropriate degree of care and diligence, then they would have advised the Principals to, and caused the Principals to (insofar as they were able to cause them) take such steps as would have led to the claimed conduct not occurring.

24. Further and in the alternative, if the Principals are found liable to the plaintiffs for the plaintiffs’ damages or any part thereof, then to the extent that Bakers and/or Munro are liable in respect of the same damage, they are entitled to contribution from them pursuant to s.23B of the Wrongs Act 1958 (Vic).’

16                  These paragraphs must be read in light of the following matters. First, the reference to ‘the June 2004 Financial Information’ is intended to be a reference to the management reports and management accounts which became available at the board meeting on 1 June 2004. The cross claim contains an obvious mistake in that the relevant definition does not appear in the correct place in the pleading. The mistake was corrected by counsel for the Directors in the course of argument before me. Secondly, the cross claim specifically alleges that the Directors relied upon Baker & McKenzie and Munro to be satisfied that the prospectus contained all material information and did not contain anything that was misleading or deceptive in contravention of the Corporations Act or any other relevant statute, and that there was no requirement to lodge a supplementary or replacement prospectus pursuant to s 719 of the Corporations Act.

17                  The applicants submitted that paragraphs 23 and 24 of the Directors’ cross claim do not identify or particularise what facts were allegedly known and/or what facts ought to have been known to each firm at the time it allegedly breached its duty of care.

18                  Counsel for Munro adopted the submissions made on behalf of Baker & McKenzie and made a number of additional submissions which related specifically to Munro’s position. He stressed that there was no allegation in the cross claim that any representative of Munro was present at the board meeting on 1 June 2004. As a result, he submitted that there was a critical gap in the material facts alleged against Munro. He submitted that paragraph 24 did not contain any identifiable factual basis for the contention that Munro might be liable in respect of the same damage as the plaintiffs claimed against the Directors. He also submitted that the cross claim alleged that Munro had breached a fiduciary duty that he owed to the Directors, but it failed to particularise the facts and circumstances that gave rise to that duty.

the cross claims by pitcher partners

19                  Both Baker & McKenzie and Munro seek leave to appeal from the order by which Pitcher Partners was granted leave to file a cross claim. However, Mr Shand QC and Mr Lyons, who appeared for Baker & McKenzie, and Mr Caleo, who appeared for Munro, did not take me to Pitcher Partner’s cross claim or refer to any specific deficiencies in it. Nor did they identify the basis upon which they contended that Finkelstein J erred in granting leave to Pitcher Partners to file and serve its cross claim.

leave to appeal

20                  Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (‘FCA’) prohibits an appeal from an interlocutory judgment of a judge of this Court, except by leave. The application for leave may be made either to a single judge or to the Full Court: ss 24(1A) and 25(2) of the FCA. In this case, the application for leave to appeal has been set down before me as a single judge.

21                  The grant of leave to appeal from an interlocutory order is governed by the principles stated by the Full Court in Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (‘Décor’)at 398-400. These principles were recently affirmed by the Full Court in Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (2004) 63 IPR 373 (‘Brilliant’). The key considerations are:

(1)          whether the decision to make the orders is attended with sufficient doubt to warrant it being reconsidered by the Full Court; and

(2)          whether substantial injustice would result if leave were refused, supposing the decision to make the orders to be wrong.

Moreover, where the decision in question concerns a matter of practice and procedure, rather than substantive rights, the Court will ordinarily be very reluctant to grant leave to appeal: see Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 176-178. The authorities indicate that a tight rein should be kept on interlocutory appeals, particularly those involving practice and procedure or an exercise of discretion concerning the preparation of a case for trial: Brilliant at 375-376 [3]-[4]; and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at 583-585 [42]-[45].

22                  An appeal from a discretionary decision by a trial judge attracts special principles. In such a case, the question is not whether the judges composing the appellate court, or a judge considering an application for leave to appeal, would have taken a different course if they were in the position of the primary judge; it is whether the primary judge’s discretion miscarried, by reason of some error of principle: see House v The King (1936) 55 CLR 499 at 505; Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 386-387; Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193 and 198; and Auspine Ltd v HS Lawrence & Son Pty Ltd (unreported, Full Federal Court, von Doussa, Mansfield and Goldberg JJ, 24 July 1998) (‘Auspine’).

referRAL to the full court

23                  The applicants submitted that I should refer the leave application to the Full Court on the grounds that the Full Court would be the most convenient forum to hear and determine the application for leave.

24                  In Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 (‘Wati’) at 554-555, the Full Court held that it is the Court, not the applicant, that has the ultimate authority to determine whether an application for leave to appeal should be determined by a single judge or a Full Court. The Full Court observed that where an application for leave to appeal is listed before a single judge, it is open to the applicant to ask the judge to consider referring it to a Full Court. But in those circumstances it is for the judge to determine whether the matter is more appropriately dealt with by him or her, or by a Full Court.

25                  In Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269 at [13], Drummond J (Cooper and Dowsett JJ agreeing) referred to the passage in Wati at 554 and said:

‘That, in my opinion, is a clear statement that there is in truth no election available to a litigant to determine which is the forum in which an application of the present kind will be held. As their Honours say, the litigant can request that the matter be heard either by a single judge or by a Full Court. But it is for the Court to determine, having regard to considerations such as the importance of the issue raised and the efficient deployment of judicial resources and other matters, which forum will in fact be constituted to deal with the application.’

26                  French J referred to and applied these principles in Minister for Immigration and Multicultural and Indigenous Affairs v WAKX (2005) 218 ALR 274 at 280-282 [28]-[32]. French J added that s 25(2)(d) of the FCA leaves it open to a single judge before whom the matter is listed to direct that it be determined by a single judge or to refer it to a Full Court, subject to the authority of the Chief Justice to determine finally whether the matter should be heard by a Full Court: at 280 [28].

27                  The proposed appeals relate to pleading matters and there is no disagreement as to the legal principles which govern the leave applications. It is simply a question of applying the well-established principles stated in Décor to the decision and orders made by Finkelstein J. I decline the request to refer the application to the Full Court. In my opinion, the nature of the issue raised by the proposed appeals, the fact that the proceedings have been fixed for trial on 20 November 2006, the orders and directions that Finkelstein J has put in place by way of case management, and the need to ensure an efficient deployment of judicial resources support the conclusion that the application for leave to appeal should be heard and determined by me, and not referred to the Full Court. I also consider that, contrary to the submission made on behalf of Baker & McKenzie, the interests of expedition and efficiency are more likely to be served by the leave application being determined by me as a single judge.

leave should be refused

28                  Finkelstein J’s grant of leave to file and serve the cross claims involved a matter of practice and procedure. It also involved discretionary decisions that fell squarely within the realm of case management.

29                  Having considered the submissions made to me, the legal principles summarised above and Finkelstein J’s reasons for decision, I am not satisfied that Finkelstein’s orders are attended by sufficient doubt to warrant them being reconsidered, or that substantial injustice would result if I refuse leave to appeal.

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.

no substantial injustice

46                  Assuming for the purposes of argument that Finkelstein J erred in principle in his decision to grant leave to file the cross claims, I am not satisfied that substantial injustice would result if I refuse leave to appeal. Finkelstein J’s orders did not determine any substantive rights of the parties. The central complaint raised by the applicants is that the allegations of breach of duty and/or involvement in contraventions are not supported by proper pleading and particulars. The substance of this complaint is capable of being addressed by the provision of appropriate particulars. If that does not occur, the applicants can make another application to the trial judge seeking particulars and/or an order striking out the cross claims.

47                  The applicants have not made out a case that they will suffer substantial prejudice if the orders are allowed to stand: cf Auspine. Finkelstein J is presently on leave, and will resume the management of this case early in August 2006. I am not persuaded that there is any real difficulty in the applicants using the time between now and early August to prepare to meet the case that is put against them. If fundamental difficulties emerge that prevent the applicants being ready for a trial commencing in November 2006, they will be able to make further applications, as may be appropriate, to the trial judge upon his return from leave.

48                  For the reasons set forth above, I refuse leave to appeal. I propose to dismiss each notice of motion. I will hear the parties on the issue of costs.

Associate:

Dated: 27 July 2006