Case: Sammy Russo Supplies Pty Ltd &amp; Anor v Australian Safeway Stores Pty Ltd (1998) ATPR 41-641
Outcome: cited
In the alternative, the respondent seeks an order that the applicant provide further and better particulars of various paragraphs of the statement of claim pursuant to a request made by the respondent's solicitors of the applicant's solicitors, said to be the subject of an inadequate response. As to the relationship between the "fundamental rule of pleading" that a pleading contain statements of material facts and the role of particulars, the adoption by Goldberg J in Sammy Russo Supplies Pty Ltd &amp; Anor v Australian Safeway Stores Pty Ltd (1998) ATPR 41-641 at 41, 093 (a case in which the applicant asserted contraventions of ss 45(2)(a)(ii) and 45 (2)(b)(ii) and in the alternative contraventions of those sections having regard to s 45A) , of Scott J's remarks in Bruce v Odhams Press Limited (supra), remains important: The cardinal provision ... is that the statement of claim must state the material facts. The word "material" means necessary for the purpose of formulating a complete cause of action; and if any one "material" fact is omitted, the statement of claim is bad; it is "demurrable" in the old phraseology, and in the new is liable to be "struck out". The function of "particulars" is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a "material fact" and a "particular" piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. 4 The essential criticism of the pleading is that it is impermissibly reductionist. It reduces a structured pleading of material facts to a series of inter-dependent definitions some of which are inclusive of particular matters and thus open-ended rather than an exhaustive statement of the relevant matters. Those definitions are then adopted as defined terms to plead contraventions of the Act . The pleading in that form fails, it is said, to isolate the essential integers of a cause of action derived from ss 45(2)(a)(ii) and 45 (2)(b)(ii) and 45A of the Act and, in consequence, fails to isolate and plead material facts establishing those integers. In order to plead to the statement of claim, ANZ is required, it is said, to either deny or admit that a term has the aggregated meaning attributed to it or to deconstruct the definition, isolate its component parts and admit or deny each part and plead contrary facts. This form of pleading is said to raise three faults. First, it fails to plead facts material to the cause of action and adopts or assumes terms the content of which need to be sequentially asserted as facts as their use as a "shorthand" for a collection of elements or notions is confusing contextually in the subsequent pleading. Secondly, the definitional device obscures the case put against ANZ. Thirdly, the device inverts the obligation of the ACCC to plead its case by requiring ANZ to isolate the ACCC's case from a collection of definitional terms, restate the perceived case and plead to that case. 5 In particular, the use of this definitional device is said to obfuscate whether ANZ provides the same, similar or substitutable services as those supplied by the market participant with whom ANZ is said to have imposed an s 45A provision in relation to prices as part of a contended contract arrangement or understanding struck with that participant.