Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd and Ors [1996] FCA 781

CATCHWORDS

PRACTICE AND PROCEDURE - PLEADING - Statement of claim - pleading of material allegations - functions of a pleading - applications to strike out - whether case stated sufficiently to enable respondents to meet it - pleading of case under ss.4D, 45, 45A and 46 of the Trade Practices Act - pleading of causal relationship between contravention and damage - pleading stating conclusions only without material facts supporting the conclusions - indefiniteness and obliquity of allegations.

TRADE PRACTICES - pleading of contraventions of ss.45 and 46 - effect of s.83 where a respondent was not a party to the earlier proceeding - whether the limitation provision in the Act is subject to the Limitation of Actions Act 1936 of South Australia or the doctrine of fraudulent concealment.

Federal Court Rules, Order 4, r.6; Order 11, rr. 2, 10

Trade Practices Act 1974, ss.4D, 45, 45A, 46, 82, 83

Limitation of Actions Act 1936 (S.A.), s.48

The Bega Co-operative Society Limited v. The Milk Authority of the Australian Capital Territory, unreported, Neaves J., 12/5/92

Natwest Australia Bank Limited v. Boral Gerrard Strapping Systems Pty Ltd (1992) ATPR 40,639

H 1976 Nominees Pty Ltd v. Galli (1979) 30 ALR 181

Harris v. Cigna Insurance Australia Limited, unreported, Kiefel J., 10/11/95

Elna Australia Pty Ltd v. International Computers (Aust) Pty Ltd (No 2) (1987) 14 FCR 193

Bond Corporation Pty Ltd v. Thiess Contractors Pty Ltd (1987) 14 FCR 193

Trade Practices Commission v. TNT Australia Pty Limited (1995) 17 ATPR 40,161

News Limited v. Australian Rugby Football League Limited (1996) 58 FCR 447

Fenech v. Sterling (1983) 51 ALR 205

Keen Mar Corporation Pty Ltd v. Labrador Park Shopping Centre Pty Ltd (1988) 10 ATPR 49,185

State of New South Wales v.McCloy Hutcherson Pty Ltd (1993) 116 ALR 363

Timeny v. British Airways PLC (1991) 102 ALR 565

Vink v. Schering Pty Ltd (No 1) (1990) 13 ATPR 52,005

Vink v. Schering Pty Limited (No 2) (1990) 13 ATPR 52,113

Karedis Enterprises Pty Ltd v. Antoniou (1995) 59 FCR 35

General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125

Williams and Humbert Ltd v. W. & H. Trade Marks (Jersey) Ltd [1986] AC 368

Commonwealth of Australia v. Dixon (1988) 13 NSWLR 601

Coe v. The Commonwealth of Australia (1979) 53 ALJR 403

Ultramares Corporation v. Touche (1931) 174 NE 441

MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED -V- TNT AUSTRALIA PTY LIMITED & ORS

NG 786 of 1995

Burchett J.

Sydney

4 September 1996

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY) NG 786 of 1995

)

GENERAL DIVISION )

BETWEEN: MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED

Applicant

AND: TNT AUSTRALIA PTY LIMITED

First Respondent

AND: ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LIMITED

Second Respondent

AND: MAYNE NICKLESS LIMITED

Third Respondent

AND: J. McPHEE & SON (AUSTRALIA) PTY LIMITED

Fourth Respondent

CORAM: Burchett J.

PLACE: Sydney

DATE: 4 September 1996

MINUTE OF ORDERS OF THE COURT

THE COURT ORDERS THAT:

1. The Statement of Claim be struck out;

2. The Applicant pay the Respondents' costs of and incidental to their motions to strike out the Statement of Claim and their costs thrown away by virtue of the defective pleading of the Applicant's claims;

3. Unless a motion for leave to file an amended statement of claim, together with a proposed pleading, be filed within 21 days, upon which leave is granted with or without further amendment, the proceeding stand dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA)

)

NEW SOUTH WALES DISTRICT REGISTRY) NG 786 of 1995

)

GENERAL DIVISION )

BETWEEN: MULTIGROUP DISTRIBUTION SERVICES PTY LIMITED

Applicant

AND: TNT AUSTRALIA PTY LIMITED

First Respondent

AND: ANSETT TRANSPORT INDUSTRIES

(OPERATIONS) PTY LIMITED

Second Respondent

AND: MAYNE NICKLESS LIMITED

Third Respondent

AND: J. McPHEE & SON (AUSTRALIA) PTY LIMITED

Fourth Respondent

CORAM: Burchett J.

PLACE: Sydney

DATE: 4 September 1996

REASONS FOR JUDGMENT

BURCHETT J.:

By an order of the Supreme Court of South Australia made on 10 October 1995, this matter was transferred to this Court under the provisions of the cross-vesting legislation. Subsequently, over a period of some months, each of the defendants in the original action (respondents in this Court) has taken out a motion to have the Statement of Claim struck

out or summarily dismissed. All the motions were heard together.

Before I turn to the argument, it is convenient to refer to some of the functions of a Statement of Claim. The primary function is to tell the defending party what the claim is that he has to meet. That is a matter of elementary and natural justice; the claim cannot be answered until it is known. When a sufficient defence has been filed to a sufficient statement of claim, a further function will generally have been performed - that of defining the question or questions for decision. This definition is required, of course, from an early stage, or else discovery and other interlocutory procedures are likely to prove misdirected, wasteful and unproductive. In order to achieve these fundamentals, a statement of claim must set out clearly, not just the bare claim that is made, but also "the material facts on which it is based", including facts that, if not specifically pleaded, might take the other party by surprise: Federal Court Rules, Order 4, r.6; Order 11, rr.2, 10. As Neaves J. said in The Bega Co-operative Society Limited v. The Milk Authority of the Australian Capital Territory (unreported, 12 May 1992):

"It is to contain, and contain only, a statement in a summary form of the material facts on which the applicant relies: Federal Court Rules, Order 11, r.2. If it discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay, the whole or part of it may be struck out: ibid., Order 11, r. 16.

The material facts are all those facts necessary for the purpose of formulating a complete cause of
action: Bruce v. Odhams Press Ltd [1936] 1 K.B.697 at p.712; Pinson v. Lloyds and National Provincial Foreign Bank Ltd [1941] 2 K.B. 72 at p.75. It is not sufficient that the statement of claim simply express a conclusion drawn from facts which are not stated: Trade Practices Commission v. David Jones (Australia) Pty Ltd (1985) 7 F.C.R. 109 at p.114; though in some circumstances to plead a conclusion may be to plead a material fact: Kernel Holdings Pty Ltd v. Rothmans of Pall Mall (Australia) Pty Ltd (Federal Court of Australia - French J. - 3 September 1991 - unreported). Not only must all material facts be pleaded but they must be pleaded with a sufficient degree of specificity, having regard to the general subject-matter, to convey to the opposite party the case that party has to meet: Ratcliffe v. Evans [1892] 2 Q.B. 524 at p.532; Charlie Carter Pty Ltd v. The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 F.C.R. 413 at p.417. It must be apparent on the face of the document that the facts pleaded, if proved, would establish the cause of action relied upon: H 1976 Nominees Pty Ltd v. Galli (1979) 40 F.L.R. 242 at p.246. It is not a function of particulars to take the place of the necessary averments in the statement of claim: ibid. at p.247; Trade Practices Commission v. David Jones (Australia) Pty Ltd (supra) at p.114."

In the case cited, his Honour struck out paragraphs of a statement of claim which simply repeated the language of s.45(2)(a)(ii) and (b)(ii) and s.46(1)(c) of the Trade Practices Act, and then baldly asserted contraventions of these provisions. Neaves J. commented:

"For the purpose of s.45(2)(a)(ii), facts must also be pleaded sufficient to establish that the provisions so identified had the purpose, or would have or were likely to have the effect, of substantially lessening competition. For the purposes of s.45(2)(b)(ii), the further facts must establish that the Authority and Co-operative Foods gave effect to those provisions of the contract or arrangement. Finally, facts must be pleaded to warrant the conclusion that Bega or Capitol or both suffered loss or damage and that such loss or damage was causally related to the contravention by the
Authority and Co-operative Foods of the provisions of ss.45(2)(a)(ii) and 45(2)(b)(ii)."

Later, he added:

"As with pars.24 and 25 to which I have already referred, par.23 of the amended statement of claim simply transcribes the language of s.46(1)(c) of the Trade Practices Act. It thus states a conclusion and not the material facts on which that conclusion is based.

To sustain a claim against the Authority based on a contravention of s.46(1)(c), the amended statement of claim must plead facts sufficient to establish that the Authority has a substantial degree of power in the relevant market. The facts pleaded must, therefore, identify the market in which the Authority is alleged to have a substantial degree of power and show the degree of the Authority's power in that market. The facts must then show not only how the Authority has taken advantage of that power but how it has done so for the purpose of deterring or preventing Bega and Capitol from engaging in competitive conduct in that or any other market. Finally, loss or damage must be shown to have been caused by the Authority's conduct."

In another case involving s.46 (Natwest Australia Bank Limited v. Boral Gerrard Strapping Systems Pty Ltd (1992) 14 ATPR 40,639), French J. referred to material facts necessary to be pleaded, and (at 40,643) said they included allegations "[a]sserting and supporting the assertion that the corporation has taken advantage of its [substantial degree of market] power for the purpose of [preventing market entry or deterring or preventing competitive conduct]". His Honour concluded (at 40,644):

"It is, as I have said, an essential element of a cause of action based upon s.46 that the alleged contravener is said to have used its market power. The conduct must either by necessary implication from its very nature or by reference to other pleaded facts and circumstances constitute a use of that power. ... In the present case I am satisfied that the pleaded refusal to supply does not either expressly or by necessary implication disclose a link with market power such that it may be said to be a use of that power. The refusal to supply was limited to the Strapping Equipment which would be required by any potential purchaser of the Irvine Pastoral business. The pleaded facts do not support the inference that the refusal took advantage of Boral's position in the market.

Boral's purpose, as pleaded in the amended statement of claim, was to prevent or deter the entry of a person into the Wool Sale Market or to deter or prevent a person from engaging in competitive conduct in such market. In my opinion, however, the material facts disclosed on the amended statement of claim do not support that pleaded conclusion. Those facts make clear that Boral was not generally refusing to supply entrants into the Wool Sale Market. Nor do they indicate that it was refusing to supply any particular person. It was refusing to facilitate the sale of the business of Irvine Pastoral by refusing to supply something necessary to its operation until its debt had been paid. This discloses no anti-competitive purpose. The pleading of the conclusion that there was such a purpose does not make out the cause of action."

See also H 1976 Nominees Pty Ltd v. Galli (1979) 30 ALR 181 at 186-187.

Similarly, in Harris v. Cigna Insurance Australia Limited (Kiefel J., unreported, 10 November 1995), a case brought under s.52 of the Trade Practices Act, certain conduct was pleaded, which the pleading alleged, in broad terms, to be deceptive. Kiefel J. said: "It is not sufficient to require the respondents to speculate as to what are the circumstances alleged to give the facts alleged the quality of being misleading or deceptive." Her Honour struck the pleading out
on the ground that it was "so confusing and unclear as to how it is said any conduct which could be described as causative was misleading or deceptive, as to be embarrassing".

When a claim is made under s.82 of the Trade Practices Act, the gist of the cause of action being damage, the Statement of Claim must allege the damage suffered, and that it was suffered by the contravention of the Act: Elna Australia Pty Ltd v. International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410 at 418; Bond Corporation Pty Ltd v. Thiess Contractors Pty Ltd (1987) 14 FCR 193 at 222.

I turn to the Statement of Claim in the present case. After pleading details of the Applicant and each Respondent, and that all were suppliers of express freight transportation services in Australia, it pleads the existence of a separate market for the supply of these services, as distinct from the market for the supply of general freight transportation. Alternative markets limited to air and road express freight were also pleaded, although one of these was alleged so indefinitely and confusingly that, on the second day of argument, it was acknowledged to require substantial reformulation.

Then it was alleged that the Respondents were competitive with each other, or would have been but for certain arrangements or understandings pleaded in paras. 10 - 14 of
the Statement of Claim. Paragraph 10 may be taken, for present purposes, as typical:

"10. From a date or dates currently unknown to the Plaintiff, but since 1987 and at least within three years from 25 July 1994, the Defendants or two or more of them, were, and thereafter continue to be, parties to an arrangement or, alternatively, an understanding, made on a date or dates presently unknown to the Plaintiff, containing provisions to the effect that:

10.1each of the parties to the arrangement or understanding would take steps, including refraining from competing on prices or rates, to ensure that the custom of customers of any of the parties to the arrangement or understanding would not be solicited or attracted away from that party by any other party to the arrangement or understanding but that such parties should solicit the custom of customers who were customers of providers of express freight transportation services which were not parties to the arrangement or understanding ('independents' customers');

10.2where a party to the arrangement or understanding ('the first party') was required to quote for the custom of a customer of another of the parties for services, the first party would either refrain from quoting for the custom of that customer or submit a quotation at a price or rate higher than the price or rate then being charged by the party supplying that customer and would quote competitive rates only to independents' customers;

10.3when a party to the arrangement or understanding ('the first party') sought to increase its prices or rates for services to one or more of its customers the other parties would assist the first party to implement such increase by, if requested to quote for the custom of a customer of the first party, either refraining from quoting or submitting a quotation at a price or rate higher than the price or rate to which the first party proposed to increase its prices or rates and would quote competitive rates only to independents' customers;

10.4in the event that one party to the arrangement or understanding ('the first party') obtained the custom of a customer of another party to the arrangement or understanding ('the second party'), steps would be taken by the first party, by increasing prices or rates or by other means, to induce the customer to return to the second party and, in the event that the customer did not return, steps would be taken by the first party to compensate the second party;

10.5each party to the arrangement or understanding would use its best endeavours to ensure that customers of each party to the arrangement or understanding were retained by that party free of competitive pressure and that by that means, the market shares of each of the parties would be protected and entrenched and that rivalrous conduct would be directed only to independents' customers.

PARTICULARS

The Plaintiff will provide full particulars following discovery and interrogatories in these proceedings. Further, the Plaintiff will rely on section 83 of the Act in respect of the findings of fact made by His Honour Justice Burchett in His Honour's Reasons for Judgment dated 31 January 1995 in Trade Practices Commission -v- TNT Australia Pty Limited & Ors (1995) ATPR 41-375, being proceedings G807 of 1992 in the Federal Court of Australia, Sydney Registry."

It is convenient to interpose a passage from the findings in Trade Practices Commission v. TNT Australia Pty Limited (1995) 17 ATPR 40,161 at 40,166, noting that these findings were made in a case to which the Fourth Respondent in the present matter was not a party, although each of the other Respondents was:

"I turn to the facts of the case. What was alleged, supported by voluminous evidence, and is now admitted, is that at five primary meetings attended by representatives of the three companies, which took place between 1987 and 1990, a series of agreements were reached, as follows:

1. That the companies would not 'poach' each other's customers, by which the admissions of Mayne Nickless Limited specified, and I understand the other respondents to have meant, that if one was requested to quote by a customer of another, it would either fail to do so or would submit a quotation above the price charged by the other company, the existing supplier, a practice described as 'giving cover';

2. That if one received the custom of customers of another, compensation would be made by returning customers of the same value by the process of up-rating them or driving them away by the provision of poor service;

3. That there would be a balancing of accounts of customers lost and gained and payment of compensation;

4. That no quotes would be given to customers of another firm over the telephone; and

5. That uniform prices would be charged for what were referred to as 'air satchels'.

Effect was given to these agreements by each of the companies on many occasions. A great number of instances was specified in documents filed in the proceedings.

As a result, between 1987 and mid 1991, the market shares of the companies were systematically protected from the effects of competition, and in particular their ability to set prices in the relevant market, the express freight market, was freed from the constraints of competition. Not only were the arrangements and their objects and consequences in flagrant breach of the obligations imposed on the companies, in the public interest, by law; the means for effecting the intended illegal results were themselves damaging to the pubic interest in a healthy economy, and were in direct conflict with the fundamental purposes of the Trade Practices Act. From the point of view of those purposes, an arrangement to maintain a cartel by deliberately providing poor service in order to compel customers to turn or to return to a supplier with whom they might be dissatisfied, must be particularly pernicious."

Returning to the Statement of Claim, paras. 15, 16 and 17 alleged concerning the various arrangements or understandings that they "had the purpose of preventing, restricting or limiting the supply of services by the Defendants ..." (para. 15 - intended to rely on s.4D and s.45), that they "had the purpose, or had ... or were likely to have the effect, of fixing [etc] the prices for services supplied ... by the Defendants ... in competition with each other in one or more of the markets ..." (para. 16 - intended to rely on ss.45 and 45A), and that they "had the purpose, or ... were likely to have had the effect, of substantially preventing, hindering or lessening competition in each of the markets ..." (para. 17 - intended to rely on s.45). It was accepted that these allegations were flawed, to the extent that the proscriptions in the statute relate to provisions of arrangements or
understandings: News Limited v. Australian Rugby Football League Limited (1996) 58 FCR 447 at 509-10, 523-524, 531. The Applicant sought (again, on the second day) to amend each paragraph accordingly - that is, to make each allegation one in respect of the "provisions of the" arrangements or understandings which are alleged in the earlier paras. 10 - 14. The same amendments are sought to be made in the later paras. 18, 19 and 21. Some gross awkwardness of expression results in some paragraphs, but it is unnecessary to go into that.

By paras. 18 - 21, the making and the implementation of the arrangements or understandings (or, according to the amendment now sought, of the provisions) are pleaded in quite general terms as contraventions of s.45(2)(A) [sic] and s.45(2)(b). The one somewhat more specific allegation of fact in these paragraphs is made in para. 19, which specifies the alleged implementation as "by providing competitive quotes to independents' customers and by refraining from providing them to customers of other Defendants".

As originally drawn, the Statement of Claim contained no allegation of damage or loss caused by the conduct pleaded in paragraphs up to para. 21. Before the motions came on for hearing, however, the Applicant's counsel notified their intention to add a para. 21A, alleging baldly: "The applicant has suffered loss and damage." After the first day's
argument, the Applicant appeared to concede the insufficiency of this, proposing a further amendment:

"21A The engaging in the conduct alleged in each of paragraphs 18, 19, 20 and 21 by the respondents has caused and continues to cause the applicant as the largest independent loss and damage, which loss and damage arises from the fact that all the competitive efforts of the respondents have been directed towards:

(a) depriving the applicant of profits by obtaining the customers of the applicant;

(b) preventing the applicant from obtaining new customers; and

(c) forcing the applicant to meet uncommercially low prices offered solely because the customers were customers of the applicant."

Paragraphs 22 and 23 constitute the section of the Statement of Claim putting forward a case in reliance on s.46. As drafted, there was no allegation of damage, and before the hearing a new para. 23A, in the same terms as the original para. 21A, was proposed. But this part of the pleading remained sparse in the extreme. It alleged "the Defendants, and each of them, had a substantial degree of power in each of the markets" alleged, but provided no material facts supporting that assertion. It then alleged:

"23. By engaging in the conduct alleged in paragraphs 10,11,12,13,14,18 and 19, the Defendants, and each of them, took advantage of their market power in the market for express freight transportation service for the purpose, or for purposes which include a substantial purpose of:

(a) eliminating or substantially damaging the Plaintiff; and further or alternatively

(b) deterring or preventing the Plaintiff from engaging in competitive conduct in the market for express freight transportation services,

in contravention of section 46 of the Act."

After the first day's hearing, the Applicant proffered an amendment of para. 22 to provide, though still in vague and general terms, some pleading of facts to show that the Respondents enjoyed a substantial degree of market power. However, para. 23 was left untouched. It alleges taking advantage of market power by making and implementing arrangements involving abolition of competition between the Respondents while competing with the Applicant and others by quoting "competitive rates". It does that by picking up the earlier paragraphs to which it refers. But the mere making and implementing of an arrangement to restrict competitive quoting, so as to exclude from it any bidding for customers of other Respondents, does not imply a substantial purpose of eliminating or even affecting the Applicant. A purpose directed at the Applicant is only to be found (if at all) in a further amendment proposed to para. 23A after the first day's argument:

"23A The engaging in the conduct alleged in paragraph 23 by the respondents has caused the applicant as the largest independent and continues to cause the applicant loss and damage, which loss and damage arises from the fact that all the competitive efforts of the respondents have been directed towards depriving the applicant of profits by obtaining the customers of the applicant, preventing the applicant from obtaining new customers and forcing the applicant to meet uncommercially low prices offered solely because the customers were customers of the applicant."

But this is not part of the pleading of purpose, which is expressly found in para. 23. Not only that; para. 23A is drafted so obliquely that it is not readily apparent quite what it alleges. I would not allow so embarrassing an amendment. Therefore, para. 23 is left as an allegation of substantial purpose bereft of any appropriate allegation of supporting facts, other than facts so contrary to the allegation (or at best, so equivocal) as to be seriously embarrassing. The Respondents are entitled to have the Applicant commit itself clearly to the case it chooses to mount against them. They should not have to contend with central allegations of purpose, not made in the paragraph which limits the purpose it alleges, as it must in accordance with the Act, to a "substantial purpose" of the alleged arrangement, but made in what appears to be deliberately loose language in a part of the pleading cloaked in the guise of an allegation of damage.

Paragraph 24 alleges a conspiracy in the broadest terms:

"By engaging in the conduct alleged in paragraphs 10, 11, 12, 13, 14, 18 and 19, the Defendants, and each of them, have unlawfully conspired with each other for the predominant purpose of injuring the Plaintiff by unlawful means and have acted in furtherance of that conspiracy."

This was contained in the only part of the Statement of Claim, as originally drawn, to include (by para. 25) an allegation of damage. Notice has now belatedly been given of an intention to substitute a new para. 25 in terms similar to those of the proposed para. 23A. Again, I consider such a paragraph would be embarrassing. What it comes to is that a serious allegation of a conspiracy to injure is made in para. 24 without any appropriate pleading of any material fact to support the purpose so baldly asserted. In my opinion, para. 24 is plainly embarrassing.

There follow an allegation of concealed fraud and a pleading of reliance upon s.48 of the Limitation of Actions Act 1936 (S.A.), which is incorrectly cited. Counsel disputed whether the paragraph alleging concealed fraud should be struck out on the basis of the views expressed in Fenech v Sterling (1983) 51 ALR 205 at 223 and Keen Mar Corporation Pty Ltd v. Labrador Park Shopping Centre Pty Ltd (1988) 10 ATPR 49,185; see also State of New South Wales v. McCloy Hutcherson Pty Ltd (1993) 116 ALR 363 at 379. I heard argument too as to whether s.48 of the State Limitation of Actions Act could affect the time limited by the Commonwealth Trade Practices Act, having regard to s.79 of the Judiciary Act 1903. I was referred to Timeny v. British Airways PLC (1991) 102 ALR 565 at 566-7; Vink v. Schering Pty Ltd (No 1) (1990) 13 ATPR 52,005 at 52,009; and Vink v. Schering Pty Limited (No 2) (1990) 13 ATPR 52,113 at 52,117. However, it is unnecessary to reach a conclusion because of the view to which I have come upon the pleading of the causes of action alleged. From a practical point of view, if I had had to deal with these points, I would have had to consider whether I should exercise a discretion to decide two limitation issues in advance of the hearing, leaving other issues, including, perhaps, the application of Karedis Enterprises Pty Ltd v. Antoniou (1995) 59 FCR 35, to be determined at the hearing. There would not seem to be much to be gained; but if there were, the better course might be the statement of a separate issue, rather than an attempted resolution of the matter by orders made upon strike out applications, with their inherent problems in respect of onus: General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125; Williams and Humbert Ltd v. W. & H. Trade Marks (Jersey) Ltd [1986] AC 368 at 435-436, 441; Commonwealth of Australia v. Dixon (1988) 13 NSWLR 601 at 611-612, 614.

I must now retrace my steps to that part of the Statement of Claim which raises causes of action in reliance upon s.45, either according to its own terms or in combination with s.4D or s.45A. As originally drafted, this part of the pleading was plainly deficient, since it alleged neither any damage, nor any material facts to show the required causal link between any alleged contravention of the Act and any damage to the Applicant: cf. Bond Corporation Pty Ltd v. Thiess Contractors Pty Ltd (ubi cit. supra). The absence of anything to show a causal link is highlighted by the extremely general way in which the Applicant pleaded (by paras.18 and 19) that effect had been given to the alleged arrangements. The nearest this comes to an allegation that the Applicant was affected is in the expression in para. 19, "by providing competitive quotes to independents' customers". But is not this the ordinary stuff of competition? The pleader seems to assume a case could be made out upon a conjecture that anti-competitive conduct between the Respondents would have strengthened (but to a completely unspecified extent, and with precise effects that are also unspecified) the competitive capacity of each of them against the Applicant. This cannot simply be assumed. Whilst it might conceivably be true in a particular case, as a generalization it would run counter to the economic theory on which the Act is based - that only the rigours of realistic competition will keep down a company's costs and the prices it charges. In theory, the Applicant should have been well able to combat the "competitive quotes" of the Respondents, softened, as the Respondents should have been, by the shelter from the hardening storms of competition under which they did the bulk of their business. This is not to say I draw any conclusion. But where the facts do not inevitably support the pleader, and various interpretations are possible, the onus is on him to define the path he wishes to take to his goal, so that his opponent will know where to meet him, and the Court just what it must decide.

It is, of course, possible to imagine a situation where competitors might reach a collusive deal aimed, not, or not to the exclusion of other substantial purposes, at the building of a shelter from each other's competition, but at, or also substantially at, joining forces to weaken a threatening competitor by making uncommercially low bids for the business of his customers, or conceivably in other ways. That is not what the Statement of Claim alleges. Perhaps the pleader thought it would be enough to suggest that if the Respondents had enriched themselves by illegal conduct, their competitors must have suffered some comparative disadvantage. Apart from all the other obvious problems with a justification of the present vague claim on that even vaguer basis, the answer must be that the often cited words of Cardozo C.J. in Ultramares Corporation v. Touche (1931) 174 NE 441 at 444 would require its rejection. As so unfocussed a claim, if maintainable, could not be restricted to proceedings for the benefit of the Applicant alone, the acceptance of the suggested proposition would expose the Respondents "to a liability in an indeterminate amount for an indeterminate time to an indeterminate class". It would extend to the farthest shore on which their enterprises trade.

Recognizing, if belatedly, these difficulties, the Applicant proffered the further amended para. 21A which I have earlier reproduced. But this suffers from virtually the same defects as those I have discussed in relation to the similarly worded para.23A.

The Applicant should not be permitted to evade its obligation of clear statement of its contentions by any device of that kind. The obligation is owed both to the Respondents and to the Court. To insist upon its performance is not to be technical about pleading, but to insist upon the observance of a fundamental requisite of fair and efficient procedure, and ultimately of a fair and efficient hearing.

It is a supererogation to add that, if it is alleged customers were actually lost to the Applicant, or their custom was threatened, by the making of uncommercial quotations, some detail of such an allegation would need to be revealed in the material facts to be pleaded, and particulars would be required. Here, no detail of any such material fact is alleged, beyond the oblique implication suggested by an allegation of loss and damage "which ... arises from" the "direct[ion]" of "all the competitive efforts of the respondents". Not a single example of any form of unfair competition is alleged, nor is it alleged that the arrangement pleaded involved the making of uncommercial quotations, but only competitive ones.

So far as the Fourth Respondent is concerned, a separate point is raised. This Respondent was not a party to the proceedings in which the findings of fact were made that are relied upon by the Applicant pursuant to s.83 of the Act. The Applicant's particulars are almost wholly confined to the material alleged in those proceedings, supported by my findings introduced into this case via s.83: Fenech v. Sterling (supra, at 217-218). But it would be straining the language of that section to make it applicable as against a respondent that was not a party to the earlier proceeding. And statutory language should not be strained so as to impair or abolish common law rights. Where Parliament intends to do that, it does so in clear terms. To make available against persons in the position of the Fourth Respondent findings they had no opportunity to contest would be seriously to diminish their ordinary rights in proceedings in the courts. I would not construe s.83 as having that effect. It follows, in the circumstances of this matter, that no sufficient particulars of any material facts are relied upon so as to bring the Fourth Respondent within the case put forward by the Applicant.

The defects identified in the Statement of Claim are such as to infect its whole structure: cf. Coe v. The Commonwealth of Australia (1979) 53 ALJR 403 at 409. Successive attempts to suggest amendments are also thoroughly defective. In my opinion, the proper orders are to strike out the Statement of Claim with costs, and to order that, unless a motion for leave to file an amended Statement of Claim, together with a proposed pleading, be filed within 21 days, upon which leave is granted with or without further amendment, the proceeding stand dismissed with costs. If the Applicant does move to file an amended statement of claim, it will, of course, be necessary to consider whether any leave should or should not permit claims to be back-dated to the commencement of the proceeding. Counsel for the Respondents made it clear they would argue that any leave should be on the condition that an amended statement of claim take effect only from the date of its filing. Something would perhaps turn on whether a fresh pleading were based on undeniably new allegations, such as the suggestion made by counsel, after the first day of argument, that the Applicant may have been targeted by the making of uncommercial quotations to its customers.

I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 4 September 1996

Counsel for the Applicant: Mr C.A. Sweeney QC and Mr D.R. Pritchard

Solicitors for the Applicant: Phillips Fox

Counsel for the First Respondent:Mr B.C. Oslington QC and Mr D.L. Williams

Solicitors for the First

Respondent: Clayton Utz

Counsel for the Second Respondent: Mr L.D.S. Waddy QC and Mr M.R. Speakman

Solicitors for the Second

Respondent: Clayton Utz

Counsel for the Third Respondent:Mr J.D. Heydon QC and

Mr R.J. Wright

Solicitors for the Third

Respondent: Blake Dawson Waldron

Counsel for the Fourth Respondent: Mr A.I. Tonking

Solicitors for the Fourth

Respondent: Clayton Utz

Dates of hearing: 10-11 April 1996

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