Case: Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413
Outcome: cited
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 &amp; McKenzie and Munro.