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’.
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:
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.
At the case management hearing, His Honour considered the following issues:
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:
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.
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”.
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 or ensuring that the proceeding is conducted both fairly and efficiently.
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:
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”.
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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Scott Couper, Partner
Caitlin Milligan, Associate
 Seven Network (Operations) Limited v Cricket Australia  FCA 1290 at .
 Dare v Pulham (1982) 148 CLE 658 at 664.
 Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286.