Cricket Australia clean bowled – Federal Court orders Cricket Australia to remove evasive statements

In Seven Network (Operations) Limited v Cricket Australia, the Court made orders deferring any application for discovery until each of the parties had filed and served their evidence in chief. Further the Court ordered that Cricket Australia file an amended defence in accordance with the Federal Court Rules 2011 (Cth) to remove all references in its defence to Seven’s Statement of Claim being ‘vague and embarrassing’.

Background

On or about 20 November 2019, Seven Network (Operations) Limited (Seven) and Cricket Australia entered into a media rights agreement (MRA) which conferred rights to Seven to broadcast certain cricket matches organised and conducted by Cricket Australia (being all men’s test matches, all women’s international matches and both men’s and women’s Big Bash League (BBL)).

On 30 June 2022, Seven filed an Originating Application and Statement of Claim against Cricket Australia, alleging, amongst other things, that Cricket Australia breached:

1. Clause 6.9(b) of the MRA for the 2019/2020, 2020/2021 and 2021/2022 seasons by failing to ‘use all reasonable endeavours to organise and conduct all Seven Matches on average across a Season to a quality and standard which is at least equal to the highest quality and standard in the world for such type of Matches and, in any event, to a quality and standard for the Season which is overall no less than the prior year’s Season’ by:
   1. scheduling other international cricket matches at competitive times to BBL matches;
   2. imposing certain rules of the BBL Competition including the salary cap and overseas player restrictions for each team and failing to conduct a player auction to allocate players to each team; and
   3. scheduling BBL matches in a manner that prevented certain well-known players from participating, and conversely, acquiring lesser-known players to be included in teams.
2. Section 18 of the Australian Consumer Law (ACL) and various provisions of the MRA by making misleading representations to Seven between May and August 2020 with respect to the scheduling of international matches in the 2020/2021 season (in particular, the date for the first men’s test match between Australia and India).

By way of relief, Seven seeks a declaration that Cricket Australia breached both the MRA, section 18 of the ACL and that Seven is entitled to terminate the MRA, as well as damages.

In its Defence, Cricket Australia admits to many of the events that occurred during the 2019/2020, 2020/2021 and 2021/2022 seasons, however, denies Seven’s claims for relief and denies that it breached the MRA and section 18 of the ACL.

Following the close of pleadings, in October 2022, both Seven and Cricket Australia filed interlocutory applications for discovery, which were the subject of the case management hearing before Justice O’Bryan on 28 October 2022.

Decision

At the case management hearing, His Honour considered the following issues:

1. whether orders for discovery should be made at this stage of the proceeding, or should await the filing of evidence by both parties; and
2. whether it is permissible for Cricket Australia to state in its defence that a particular allegation made by Seven in its Statement of Claim is “vague and embarrassing” and that Cricket Australia “is not therefore able to properly plead to the allegation”.

Discovery

In relation to the applications for discovery, His Honour, having regard to the features of the case and rule 20.11 of the Federal Court Rules 2011 (Cth) (Federal Court Rules), formed the view that the overarching purpose to facilitate the just resolution of the proceeding as quickly, inexpensively, and efficiently as possible, would be best achieved by deferring any application for discovery until after Seven and Cricket Australia had filed and served their evidence in chief.

In forming this view, His Honour commented that:

• the dispute was between two large, relatively well-resourced and sophisticated entities;
• the dispute related to a commercial agreement;
• the relevant events the subject of the dispute are known to the parties;
• a significant part of the dispute concerns the interpretation of the MRA and the rights and obligations of the parties to the MRA; and
• another significant part of the dispute concerns whether Seven has suffered loss and damage.

Timetabling orders were made in respect of the filing of evidence and the filing of any applications for discovery, which were supported by Cricket Australia and not strenuously opposed by Seven.

Pleadings

The defence filed by Cricket Australia contained numerous statements that an allegation made by Seven was ‘vague and embarrassing’ and that Cricket Australia “was not therefore able to properly plead to the allegation”.

His Honour stated that “statements of that kind have become increasingly common in pleadings filed in the Federal Court, colourfully, they might be described as a cancerous growth. In my view, statements of that kind are not a proper form of pleading and should be excised”.[1]

His Honour held that the statements are not pleadings which comply with rule 16.02 and 16.07 of the Federal Court Rules, are evasive and do not serve the purpose of defining the issues in the proceeding[2] or ensuring that the proceeding is conducted both fairly and efficiently.[3]

In addition, that the statements are a mere assertion that there is a deficiency in respect of an allegation in the statement of claim and a refusal to plead responsively on the basis of that asserted deficiency. Ultimately, the inclusive of such statements in a defence is not consistent with the overarching purposes of civil practice and procedure.

In circumstances were an allegation in a statement of claim is deficient, His Honour held that the correct approach to have the deficiency remedied is to either:

• apply to the Court to strike out all or part of the pleading under rule 16.21(1) of the Federal Court Rules;
• seek an amendment to the pleading; or
• seek particulars.

His Honour made orders requiring Cricket Australia to file and serve an amended defence in accordance with the Federal Court Rules which removed all statements to the allegation by Seven being “vague and embarrassing”.

Key takeaway

The reasons given by Justice O’Bryan highlight the important role of pleadings in facilitating the resolution of disputes as quickly, inexpensively, and efficiently as possible. One could say that his Honour did not let the form of pleading go through to the keeper.

Notwithstanding the Court’s reduced tolerance for unnecessary pleading disputes, parties ought to strongly consider whether the use of responses that do not seek to clarify the issues in dispute, should be used. If a pleading cannot be responded to because it is unclear, parties should consider whether it is necessary to resolve the matter by a request for particulars, requested amendments or an application to strike out.

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Authored by: 

Scott Couper, Partner
Caitlin Milligan, Associate

[1] Seven Network (Operations) Limited v Cricket Australia [2022] FCA 1290 at [15].

[2] Dare v Pulham (1982) 148 CLE 658 at 664.

[3] Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286.