FEDERAL COURT OF AUSTRALIA
McKellar v Container Terminal Management Services Limited
[1999] FCA 1101
PRACTICE AND PROCEDURE – pleadings – application for summary dismissal of proceeding pursuant to Federal Court Rules, O 20 r 2(a), (b) and (c) – whether amended statement of claim discloses reasonable cause of action – whether proceeding frivolous or vexatious – whether proceeding abuse of process of Court.
PRACTICE AND PROCEDURE – application to strike out amended statement of claim pursuant to Federal Court Rules, O 11 r 16 – whether amended statement of claim discloses reasonable cause of action – whether fails to plead material facts – whether pleading embarrassing – whether particulars inadequate.
TRADE PRACTICES – Trade Practices Act 1974 (Cth) – s 51A, s 52, s 53B, s 75B – whether allegations appropriately pleaded – s 2A – whether Act applies to Minister where Act does not apply to Commonwealth – whether parties acting in concert with Minister can share in immunity.
TORT – tort of conspiracy – whether “unlawful means conspiracy” appropriately pleaded – whether “conspiracy to injure” appropriately pleaded – whether “psychological injury” and “post traumatic stress” compensable – whether Commonwealth can be liable for tort of conspiracy – whether Minister “servant” of the Crown for purposes of vicarious liability.
TORT – misfeasance in public office – elements of tort – whether Commonwealth can be vicariously liable for tort of misfeasance in public office committed by Minister of the Crown.
Trade Practices Act 1974 (Cth), ss 2A, 51A, 52, 53B, 75B, 82, 87
Workplace Relations Act 1996 (Cth) ss 298K, 298L
Federal Court Rules, O 11 r 16, O 20 r 2(1)(a), O 20 r 2(1)(b), O 20 r 2(1)(c)
Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 77 FCR 456 referred to
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 77 FCR 478 referred to
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643 referred to
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 applied
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-9, 130 applied
Webster v Lampard (1993) 177 CLR 598 at 602 applied
Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368 at 435-6 referred to
Cubillo v Commonwealth of Australia (1999) 163 ALR 395 at 415-6 applied
Packer v Meagher (1984) 3 NSWLR 486 referred to
Gallo v Dawson (1988) 82 ALR 401 referred to
Yeldham v Rajski (1989) 18 NSWLR 48 referred to
Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511 referred to
Munnings v Australian Government Solicitor (1994) 118 ALR 385 referred to
Dare v Pulham (1982) 148 CLR 658 at 664 referred to
Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR ¶41-591 at 44,151 ff applied
Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114-5 referred to
H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246-7 referred to
Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd [1999] FCA 142 at par 7 referred to
Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458 at 462-3 referred to
Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 222 applied
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Limited (1998) ATPR ¶41-633 at 40,977 referred to
HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 referred to
State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR ¶41-691 at 42,827-42,829 referred to
Bartlett v Swan Television and Radio Broadcasters Pty Ltd (1995) ATPR ¶41-434 at 40,889 referred to
Wright v TNT Australia Pty Ltd (1988) 15 NSWLR 662 at 677 referred to
Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 819 referred to
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 referred to
Elliott v Seymour [1999] FCA 976 at pars 89, 90, 91, 94, 97, 100-2 applied
Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 referred to
R v ICR Haulage Limited [1944] 1 KB 551 at 559 referred to
Lonrho Ltd v Shell Petroleum (No 2) [1982] AC 173 at 188 and 189 referred to
Lonrho Plc v Fayed [1992] 1 AC 448 referred to
Lonrho Plc v Fayed (No 5) [1993] 1 WLR 1489 at 1496, 1502-1504 and 1509 referred to
Huntley v Thornton [1957] 1 WLR 321 at 350 referred to
Williams v Hursey (1959) 103 CLR 30 referred to
Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 referred to
Latham v Singleton [1981] 2 NSWLR 843 referred to
United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 referred to
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 applied
Beach Petroleum NL v Johnson (1991) 105 ALR 456 referred to
Gerakiteys v The Queen (1984) 153 CLR 317 at 320 referred to
Peters v R (1998) 192 CLR 493 at 520 referred to
Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 150, 151-2 applied
Galland v Mineral Underwriters Ltd [1977] WAR 116 at 119-20 applied
Sorrell v Smith [1925] AC 700 at 716 referred to
Trade Practices Commission v Allied Mills Industries Pty Ltd (1980) 32 ALR 570 at 579 applied
R v Chow (1987) 11 NSWLR 561 at 570 referred to
Limerick Steamship Co Ltd v The Commonwealth of Australia (1924) 24 SR(NSW) 214 at 250 referred to
James v The Commonwealth (1939) 62 CLR 339 at 359-60 referred to
Connor v Sankey [1976] 2 NSWLR 570 at 600 referred to
Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 362 referred to
Sue v Hill (1999) 163 ALR 648 at 671-4 referred to
Baillieu v Australian Electoral Commission (1996) 63 FCR 210 at 225-6 applied
Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 249 referred to
Racz v Home Office [1994] 2 AC 45 at 50-4 referred to
Enever v The King (1906) 3 CLR 969 referred to
Field v Nott (1939) 62 CLR 660 referred to
Konrad v Victoria Police [1999] FCA 988 referred to
State Chamber of Commerce and Industry v Commonwealth (The Second Fringe Benefits Tax Case) (1987) 163 CLR 329 referred to
Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 at 483-4 referred to
Re Ling; Ex parte Ling v Commonwealth (1995) 58 FCR 129 at 132 referred to
Town Investments Ltd v Department of the Environment [1978] AC 359 at 383, 393 and 398 referred to
Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584 referred to
Credit Lyonnais Bank Nederland NV (now Generale Bank Nederland NV) v Export Credit Guarantee Department [1998] 1 Lloyds Rep 19 at 36–7, 41–2 referred to
New South Wales v Bardolph (1934) 52 CLR 455 at 518–9 referred to
Breavington v Godleman (1988) 169 CLR 41 at 68-9
R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827 at 844 referred to
Midland Bank Trust Co Ltd v Green (No 3) [1982] 1 Ch 529 at 541 distinguished
Nixon v Fitzgerald 457 US 731 (1982) referred to
Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 328-9, 345 and 347-8 referred to
SITA Qld Pty Ltd v Queensland (1999) 164 ALR 18 at 35 referred to
Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 167 at pars 11, 14 and 16 referred to
Woodlands v Permanent Trustee Company (1996) 68 FCR 213 at 230, 231 applied
Thomson Publications (Australia) Pty Ltd v Trade Practices Commission (1979) 40 FLR 257 at 275 referred to
Wirral Estates Limited v Shaw [1932] 2 KB 247 referred to
New South Wales Bar Association v Forbes Macfie Hansen Pty Ltd (1988) 18 FCR 378 at 381 referred to
Turner v The Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 at 97 applied
ANDREW McKELLAR and ANOR v CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED and ORS
VG 555 of 1998
WEINBERG J
13 AUGUST 1999
MELBOURNE
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| VG 555 OF 1998 |
| BETWEEN: | ANDREW McKELLAR First Applicant
CHRISTOPHER MURRAY Second Applicant
|
| AND: | CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED First Respondent
FYNWEST PTY LTD (ACN 080 502 343) Second Respondent
MICHAEL WELLS Third Respondent
PETER KILFOYLE Fourth Respondent
ALAN WILSON Fifth Respondent
PCS TRAINING SERVICES PTY LTD (ACN 081 231 021) Sixth Respondent
PATRICK STEVEDORES HOLDINGS PTY LTD Seventh Respondent
LANG CORPORATION LIMITED Eighth Respondent
CHRISTOPHER CORRIGAN Ninth Respondent
THE COMMONWEALTH OF AUSTRALIA Tenth Respondent
THE HONOURABLE PETER KEASTON REITH MP, MINISTER FOR INDUSTRIAL RELATIONS Eleventh Respondent
|
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. The amended statement of claim filed on 24 December 1998 be struck out in so far as it pleads allegations against those respondents who have brought motions seeking to have the proceeding dismissed or the amended statement of claim struck out.
2. The applicants be given leave to file and serve a further statement of claim on or before 29 October 1999.
3. The applicants pay the respondents’ costs of and incidental to the motions before the Court.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| VG 555 OF 1998 |
| JUDGE: | |
| DATE: | |
| PLACE: |
REASONS FOR JUDGMENT
1 On 8 April 1998 the Maritime Union of Australia, and those members of that union who were employees of four companies in the Patrick Stevedoring group, took proceedings in this Court to obtain interim orders designed to protect those employees against imminent termination of their employment. The events which followed are well known. North J at first instance granted the interim relief sought: Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 77 FCR 456. His Honour’s judgment sets out many of the facts which lay behind that dispute. That judgment was affirmed on appeal by a Full Court of this Court: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 77 FCR 478. It was affirmed again, in large measure, by the High Court when it allowed an appeal from the Full Court in part, but otherwise dismissed the appeal, in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643.
2 The present application arises out of the same set of circumstances which gave rise to the earlier proceedings. It was instituted on 13 October 1998. Accompanying that application was a statement of claim filed on the same date. This was several months after the High Court had delivered its judgment in relation to the interim relief granted in those earlier proceedings, and while negotiations were still on foot to resolve them. It is common knowledge that those negotiations were ultimately successful, and that the earlier proceedings brought by the Union and its members were settled.
3 The applicants in the present proceedings are two of a number of individuals who responded to advertisements seeking to recruit servicemen and ex-servicemen for training in Dubai. Their primary claim is that they were induced by a series of representations which were misleading or deceptive, and which contravened the provisions of the Trade Practices Act 1974 (Cth) (“the Act”), to enter into contracts with one or more of the respondents. They seek to recover damages as compensation, as well as aggravated or exemplary damages.
4 The applicants also seek damages against a number of the respondents for breach of contract, conspiracy, misfeasance in public office and negligence. Some of these causes of action were not pleaded in the original statement of claim filed with the application on 13 October 1998. They were added in an amended statement of claim filed on 24 December 1998.
5 It is somewhat peculiar to note that even though a number of additional persons and entities (not named as parties in the original application) were purportedly named as respondents in the amended statement of claim, no amended application was filed with the amended statement of claim, and none has since been filed. There is, therefore, a significant disconformity between the eleven respondents who are in fact parties to these proceedings, having been named as such in the application filed with the Court, and those twenty or more additional persons and entities who are named as respondents in the amended statement of claim. Those persons and entities are not, at this stage, parties – it is merely foreshadowed that they will become parties. That disconformity is, of course, easily capable of being rectified. Mr Archibald QC who appeared with Mr Peters for the seventh to ninth respondents very properly acknowledged this when he also announced his appearance on behalf of the persons and entities named as the twelfth to twenty-seventh respondents in the amended statement of claim. Hereafter in this judgment, for ease of reference, the persons and entities named as respondents in the amended statement of claim will be referred to as ‘respondents’.
6 Mr Jopling QC who appeared with Mr Bourke for a number of the respondents did not advert to this issue in his submissions. Mr Pagone QC who appeared with Mr Lucarelli for the tenth and eleventh respondents was not affected by the change in designation of the other respondents, or by the addition of the twenty or more new respondents in the amended statement of claim.
7 The amended statement of claim identifies thirty-three respondents, rather than the eleven originally named in the application. They are as follows:
Container Terminal Management
Services Limited First Respondent
Fynwest Pty Ltd (ACN 080 502 343) Second Respondent
Michael Wells Third Respondent
Peter Kilfoyle Fourth Respondent
PCS Training Services Pty Ltd
(ACN 081 231 021) Fifth Respondent
PCS Resources Pty Ltd (ACN 081 231 021) Sixth Respondent
Patrick Stevedores Holdings Pty Ltd Seventh Respondent
Lang Corporation Limited Eighth Respondent
Christopher Corrigan Ninth Respondent
The Commonwealth of Australia Tenth Respondent
The Honourable Peter Keaston Reith MP,
Minister for Industrial Relations Eleventh Respondent
National Stevedoring Tasmania Pty Ltd
(ACN 009 477 150) Twelfth Respondent
Patrick Stevedores Number 1 Pty Ltd
(ACN 003 621 645) (Under Administration) Thirteenth Respondent
Patrick Stevedores Number 2 Pty Ltd
(ACN 003 893 141) (Under Administration) Fourteenth Respondent
Patrick Stevedores Number 3 Pty Ltd
(ACN 010 815 362) (Under Administration) Fifteenth Respondent
Patrick Stevedores Operations Number 2 Pty Ltd
(ACN 156 292 687) Sixteenth Respondent
Strang Patrick Holding Pty Ltd (ACN 003 893 847) Seventeenth Respondent
National Stevedoring Holding Pty Ltd
(ACN 060 623 529) Eighteenth Respondent
Cumberlane Holdings Pty Ltd (ACN 000 079 078) Nineteenth Respondent
Intraverst Pty Ltd (ACN 001 726 496) Twentieth Respondent
Pizen Pty Ltd (ACN 065 905 571) Twenty-first Respondent
Patrick Stevedores Operations Pty Ltd
(ACN 065 375 840) Twenty-second Respondent
Jamison Equity Limited (ACN 008 648 655) Twenty-third Respondent
Scarabus Pty Ltd (ACN 008 645 387) Twenty-fourth Respondent
Equitius Pty Ltd (ACN 065 981 526) Twenty-fifth Respondent
Serenade Pty Ltd (ACN 008 644 737) Twenty-sixth Respondent
William Clayton Twenty-seventh Respondent
PCS Operations Pty Ltd (ACN 081 231 049) Twenty-eighth Respondent
National Farmers Federation Twenty-ninth Respondent
P & C Stevedores Pty Ltd (ACN 081 225 078) Thirtieth Respondent
James William Ferguson Thirty-first Respondent
Paul Xavier Houlihan Thirty-second Respondent
Donald Gordon McGouchie Thirty-third Respondent
8 In response to that amended statement of claim various groups of respondents (some named in the application, and others merely foreshadowed as respondents in the amended statement of claim) have filed motions, notice of which was given on 22 February 1999. There are three such notices of motion before the Court. It is not necessary to set them out in full. They may be summarised in the following way.
9 Those respondents named in the amended statement of claim as the seventh to ninth and twelfth to twenty-seventh respondents may be described, for present purposes, as the “Lang respondents”. They are all associated with what is described as “the Patrick group of companies”. They seek summary dismissal of the proceeding brought against them pursuant to O 20 r 2(1)(a) of the Federal Court Rules (“the Rules”) on the basis that it discloses no reasonable cause of action. Alternatively, they seek an order pursuant to O 20 r 2(1)(b) that the proceeding be dismissed on the basis that it is frivolous or vexatious.
10 The fifth, sixth, twenty-eighth and thirtieth to thirty-third respondents may be described for present purposes as the “National Farmers Federation respondents”, or “NFF respondents”. They seek like orders pursuant to O 20 r 2(1)(a) and O 20 r 2(1)(b) of the Rules. They also invoke O 20 r 2(1)(c) to claim that the proceeding against them is an abuse of the process of the Court. Alternatively, they claim that in so far as it lies against them the amended statement of claim should be struck out pursuant to O 11 r 16 of the Rules. They contend that it discloses no reasonable cause of action, that it has a tendency to cause prejudice, embarrassment or delay in the proceeding, and that it is otherwise an abuse of the process of the Court.
11 The tenth and eleventh respondents are the Commonwealth of Australia and the Minister for Industrial Relations, Mr Peter Reith. They seek orders that pursuant to O 20 r 2(1)(a) of the Rules the application against them, and “sections” 8, 11, 12, 14 and 16 of the amended statement of claim, be dismissed on the ground that no reasonable cause of action is disclosed. Alternatively, they seek orders pursuant to O 11 r 16 of the Rules that the whole of those sections in the amended statement of claim (or various paragraphs or parts thereof referred to in their written contentions dated 22 February 1999) be struck out on the ground that they disclose no reasonable cause of action, or have a tendency to cause prejudice, embarrassment or delay in the proceeding.
The principles governing summary dismissal
12 It is clearly established that the jurisdiction of the Court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.
13 In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Dixon J (as he then was) stated at 91:
“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”
14 In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Barwick CJ cited that passage with approval at 129-30, and stated earlier at 128-9:
“The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action – if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal – is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.”
15 Barwick CJ continued at 130:
“… in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
16 The remarks of Dixon J in Dey v Victorian Railways Commissioners were also cited with approval by Mason CJ, Deane and Dawson JJ in Webster v Lampard (1993) 177 CLR 598 where their Honours said at 602:
“The power to order summary judgment must be exercised with “exceptional caution” … and “should never be exercised unless it is clear that there is no real question to be tried”.”
17 The same strict approach has been taken in the United Kingdom. In Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368 Lord Templeman stated at 435-6:
“My Lords, if an application to strike out involves a prolonged and serious argument the judge should, as a general rule, decline to proceed with the argument unless he not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of preparing for trial or the burden of the trial itself.”
18 Other United Kingdom authorities are canvassed by O’Loughlin J in Cubillo v Commonwealth of Australia (1999) 163 ALR 395 at 415-6. They confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court. Note however the proposed extension of summary jurisdiction in the United Kingdom – CPR, Part 24 of the Civil Procedure Rules. That proposed extension, if implemented, would make it easier to satisfy the grounds justifying summary jurisdiction – see Derek O’Brien, ‘The New Summary Judgment: Raising the Threshold of Admission’ (1998) 18 Civil Justice Quarterly 132 at 134.
19 There are many reported cases which illustrate the principles set out above. That is not to say that there are not also many reported cases in which, conformably with those principles, particular proceedings have been stayed or dismissed. See for example Packer v Meagher (1984) 3 NSWLR 486; Gallo v Dawson (1988) 82 ALR 401; Yeldham v Rajski (1989) 18 NSWLR 48; Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511; and Munnings v Australian Government Solicitor (1994) 118 ALR 385. These are illustrations of the principle which is embodied in O 20 r 2(1) of the Rules that the Court may order that a proceeding be stayed or dismissed generally where it appears to the Court that the application discloses no cause of action or that the proceeding is frivolous or vexatious, or is an abuse of the process of the Court. They are also illustrations of the operation of O 11 r 16 which deals with pleadings and which appears to be slightly wider than O 20 r 2, since it encompasses also “embarrassment” as a basis upon which a pleading may be struck out.
Pleadings in Federal Court proceedings
20 The principles which govern pleadings in this Court are set out in O 11 of the Rules. They include, inter alia:
“1. Where a pleading alleges or otherwise deals with several matters –
(a) the pleading shall be divided into paragraphs;
(b) each matter shall, so far as convenient, be put in a separate paragraph; and
(c) the paragraphs shall be numbered consecutively.
…
2. Subject to these Rules –
(a) a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved;
…
3. A pleading shall be as brief as the nature of the case admits.
4. Where any document or spoken words are referred to in a pleading, it is permissible to state the effect of the document or spoken words without setting out the precise terms thereof.
…
8. (1) A party shall not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with a previous current pleading of his.
(2) Sub-rule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative.
9. A party may by his pleading raise any point of law.
…
16. Where a pleading –
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or
(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.”
21 The purpose of pleadings is to define the issues and thereby to inform the parties in advance of the case they have to meet so as to enable them to take the steps necessary to deal with it: Dare v Pulham (1982) 148 CLR 658 at 664.
22 In Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR ¶41-591 Goldberg J observed at 44,151ff:
“Pleadings occupy an important role in present day litigation notwithstanding the flexibility of case management principles. They are not to be treated as pedantry or mere formalism: Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, 241. In Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Mason CJ and Gaudron J said at 286:
“The function of pleadings is to state with sufficient clarity the case that must be met: … In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness.”
It has been established for many years that the most fundamental rule of pleading is the rule found in O 11 r 2 … It is also important to recognise and accept that there is a clear distinction between pleadings and particulars. In Bruce v Odhams Press Limited [[1936] 1 KB 697] Scott J in the Court of Appeal said at 711-713:
“…but it is beyond question that there is a radical distinction (between a statement of material facts and particulars) and nonetheless so that in cases near the dividing line there is a penumbra where the two may and often do overlap, just as between night and day there is a zone of doubt which we call dusk …
The cardinal provision in r. 4 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” under r. 6 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.”
…
These principles were restated more recently by Burchett J in Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR ¶41-522. At 42,679 his Honour said:
“The primary function (of a statement of claim) 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, O 4, r 6; O 11, rr 2, 10.””
23 A number of authorities support the proposition that a statement of claim must contain material facts, being the facts necessary for the purpose of formulating a complete cause of action, and that it is not sufficient simply to plead a conclusion drawn from unstated facts: see for example Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114-5 per Fisher J; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246-7 per Northrop J; Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd [1999] FCA 142 at par 7 per Kenny J. A statement of claim which simply repeats the language of a provision of the Act, and then baldly asserts a contravention of that provision, without more, will be struck out.
24 In Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458 RD Nicholson J stated at 462-3:
“The motion for strike out is brought pursuant to O 20 r 2 and/or O 11 r 16 of the Federal Court Rules. The grounds relied upon are that the pleadings referred to disclose no reasonable cause of action, are scandalous, frivolous and/or vexatious and may prejudice, embarrass or delay the fair trial of the action.
A cause of action is every allegation of fact which the plaintiff must prove to establish the right to the relief claimed … A “reasonable cause of action” means a cause of action with some chance of success, when considering the allegations of fact contained in the challenged pleading alone. The terms “vexatious” and “frivolous” have been used interchangeably … “Frivolous” has been held to be apt to describe proceedings in which the plaintiff’s claim is so obviously untenable that it cannot possibly succeed … “Vexatious” has been held to be apt to describe an action which is a sham and which cannot possibly succeed …”
25 For a statement of claim to disclose a cause of action it must set out the material facts which give rise to the cause of action. A cause of action for misleading and deceptive conduct is not established unless the statement of claim sets out the circumstances which gave the representation its deceptive and misleading character at the time it was made. Mere non-fulfilment of a statement as to a future matter does not establish that the statement was relevantly misleading and deceptive: Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd (supra).
26 When a claim is made under s 82 of the 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 reason of the contravention of the Act. Material facts must be pleaded which show the required causal link between any alleged contravention of the Act, and any damage to the applicant. A deficient pleading, namely one that does not plead relevant material facts, cannot be saved by particulars. It is not sufficient simply to allege loss and damage as a result of alleged contraventions of the Act; it is necessary to identify a causal connection between the impugned conduct and such loss as is said to have been suffered by the applicants: Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 222 per French J, cited with approval by Burchett J in Multigroup Distribution Services Pty Ltd (supra) and by Goldberg J in Mitanis (supra).
27 In Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Limited (1998) ATPR ¶41-633 Foster J dealt with an application to strike out certain paragraphs of a further amended statement of claim which purported to plead a cause of action under ss 51A, 52 and 53 of the Act. His Honour stated at 40,977:
“It necessarily follows that when [s 52] is sought to be used in litigation as the foundation of a cause of action or claim for some specific form of relief, it is imperative that the factual basis upon which the section is alleged to be brought into play must be stated with appropriate clarity in a statement of claim. This is, of course, a fundamental principle of pleading.”
28 His Honour continued at 40,978:
“Experience is showing that the Court must be astute in the prevention of this type of situation by requiring, in the early stages of litigation, that claims based on section 52 be pleaded with appropriate precision and in a manner that enables the factual issues for trial to emerge with clarity.
… It must also be remembered that it is not the function of particulars, … to fill in the gaps in the pleadings and that particulars cannot be regarded as statements of material facts which can cure defects in a statement of claim … It may also be noted that it is a principle of pleading that a respondent does not plead to the particulars … If a statement of claim puts a respondent in this position he can, in my opinion, properly claim that the relevant parts of that pleading are embarrassing. In this regard it will be remembered that O 11 r 16 of the Federal Court Rules enables the striking out by the Court of the whole or any part of pleading that “has a tendency to cause prejudice, embarrassment or delay in the proceeding”.”
29 It has been said that some revision of the strictness with which the rules governing pleadings should be approached may be justified in the light of the ever increasing complexity of modern commercial litigation. In HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822, for example, at par 59 Einfeld J observed that:
“… technical defects in a pleading which cause no confusion and do not raise issues of substantive principle are dealt with by particulars or amendment, not motions for summary dismissal.”
30 I note also the views expressed by Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR ¶41-691 at 42,827-42,829. I note in particular his Honour’s comments at 42,827:
“Authority acknowledges the blurring, in recent times, of the distinction between pleadings and particulars: see,. eg, Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466, where von Doussa J referred to the tendency now “towards narrative pleading as there is a growing concern that pleadings according to traditional rules do not adequately make known to the court and to the parties the nature of the opposing cases in complex matters.” His Honour also commented that: “[t]echnical objections raised to pleadings on the ground of alleged want of form will be received with less enthusiasm today than in times past.”
Notwithstanding 0 11 r2(a), a respondent does not have an absolute right in every case to insist upon the applicant pleading in the statement of claim every material fact necessary to show the existence of a complete cause of action.”
31 His Honour continued at pars 42,828-9:
“While, prima facie, the Court’s rules with respect to pleadings must be complied with, compliance is enforced by the invocation of the Court’s discretion to strike out non-conforming pleadings. Consistently with the comments in Beach Petroleum, judges of this Court have dealt with challenges to the adequacy of pleadings in a more flexible way than would be required by a strict application of those rules.
This is an approach that reflects the discretionary nature of the Court’s power to control pleadings and the objective of the Court’s case management system, provided for by O 10 r 1, of achieving efficient and economical use of the resources of all the parties, as well as those of the Court. Australian Competition and Consumer Commission v Golden West Network Pty Ltd (Federal Court of Australia, 19 August 1997, unreported) provides an example. There Lockhart J said:
“It is important that I say something about motions to strike out statements of claim in the conduct of modern litigation. Today, courts are playing an increasingly active role in case management. Motions to strike out pleadings are matters of practice and procedure. In its role of case management, courts devise various procedures to overcome deficiencies in pleadings other than by simply ordering that the offending paragraphs be struck out. Sometimes it is appropriate to strike them out, sometimes not. On some occasions it is better for the court to direct the applicant, whose statement of claim is under challenge, to furnish particulars or to file and serve affidavits to show that there really are facts which can be proved and which, if proved, would support the general statements made in the statement of claim. This is not, of course, intended to be a substitute for a defective pleading in every case because, as is well known, pleadings must assert basic or constitutive facts, not the evidence by which they are to be proved. But case management is a sensible and flexible thing. It must not be unduly circumscribed.”
When it is said that a pleading is so bad that it should be struck out, the outcome, in my opinion, is now to be governed not just by whether the pleading fails to comply with one or other of the rules of pleading. The Court will take into account whether the defects are of substance, ie, whether, notwithstanding any deficiencies in the pleading, the fundamental function of pleading is still served. The Court will also take into account how these objectives can best be achieved, where a pleading does not do that: striking out may be appropriate in some cases while an order for particulars or directions under O 10 r 1(2), including directions of the kind referred to by Lockhart J, may be appropriate in others.
In any event, that a pleading alleges conclusions does not mean it is necessarily bad. The requirement of O 11 r 2 to plead the material facts, is subject to the established qualification to rules in this form that allows, in appropriate cases, pleading at a level of generality which excuses the failure to plead every fact material to the cause of action sued upon: Charlie Carter Pty Ltd v SDAEA (WA) (1987) ATPR (Digest) ¶46-021; (1987) 13 FCR 413 at 417. In Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (Federal Court of Australia, 3 September 1991, unreported) French J, in dealing with a complaint that a statement of claim alleging contraventions of s 45 of the Act pleaded conclusions in terms of the section, rather than the material facts underlying them, said:
“I do not accept that the pleading of something which can be described as a conclusion cannot also be a pleading of a material fact. The real issue in a case where such an objection is raised is whether the facts are pleaded at too great a level of generality. In my opinion, the level of generality of the statement of claim in this case is too great for Rothmans to know with any precision what case it has to meet.”
The modern approach to litigation in this Court is not to strike out or order further particulars of a conclusionary pleading, if it appears that that is unnecessary in the circumstances of the particular case to achieve the object of pleadings. See also Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR ¶41-522 at 42,679.
It is, in my opinion, a legitimate and necessary exercise of the controlling discretion the Court has over pleadings to utilise that power to ensure that a party is not required to incur the expense of providing masses of information in its pleadings that can be seen to be unnecessary for the proper disposition of the case, even though the prima facie obligation of a party to plead all material facts necessary to make out its cause of action could be said to require that. This is not to suggest that clarity in pleading is not important. The need to focus on pleadings being used to identify the matters really in issue is particularly pressing in a complex case. But the rules of pleading do not now provide the only means for achieving this. And above all, those rules are not now intended to be an arsenal for litigation by attrition.”
32 The sustained and vigorous criticisms which have been levelled by the respondents at the applicants’ amended statement of claim should be considered in the light of those observations. It is plain that some of the defects identified by these criticisms are capable of being rectified by further amendments being made to the pleading. Others do not fall into that category. If made good, those criticisms would lead to the particular claim being struck out, or dismissed in its entirety.
33 What follows is by no means an exhaustive restatement of all of the attacks which have been mounted against the applicants’ pleading. It represents a fair summary of some of the principal objections taken to the amended statement of claim. A number of the points discussed below may be regarded as representative of other criticisms not specifically addressed in this judgment.
The background to the motions before the Court
34 When the applicants instituted this proceeding on 13 October 1998, the statement of claim which was filed with the application was confined essentially to alleging, against a total of eleven respondents, various breaches of the Act. There were also some additional claims in conspiracy, deceit and negligence. These were plainly pleaded as subsidiary causes of action. The original statement of claim ran to twenty pages.
35 It was foreshadowed at an early stage by a number of the respondents named in the application that steps would be taken to have that application, and the accompanying statement of claim, dismissed, or at least to have the statement of claim struck out. The applicants responded by indicating that they proposed, in any event, to file an amended statement of claim, and that any application of the type foreshadowed by the respondents should await the filing of the amended pleading. That was plainly a sensible suggestion. It was adopted with the consent of all parties.
36 On 24 December 1998 the applicants’ amended statement of claim was filed. That document runs to ninety pages. It contains literally hundreds of separate paragraphs, some numbered in a coherent manner, others numbered in a manner which is all but incomprehensible, and many merely asterisked. The number of respondents has increased from the original eleven (still the number of respondents to the application) to thirty-three.
The designation of the respondents
37 The fifth respondent to the application and the original statement of claim, Alan Wilson (an associate of the third and fourth respondents), is no longer named as a respondent in the amended statement of claim, though he remains a respondent to the application . The first four respondents, as well as the seventh to eleventh respondents, retain those designations in the amended statement of claim. The sixth respondent in the original statement of claim has been redesignated as the fifth respondent in the amended statement of claim. A new sixth respondent, PCS Resources Pty Ltd, has been introduced into that amended statement of claim.
38 As noted earlier, the twelfth to twenty-seventh respondents are, together with the seventh to the ninth respondents, collectively described as the “Lang respondents”. The twenty-eighth and thirtieth to thirty-third respondents are all associated with the fifth and sixth respondents as identified by the amended statement of claim. They are collectively described as the “NFF respondents”. The twenty-ninth respondent is described in the amended statement of claim as the “National Farmers Federation”. There is no legal entity of that description, however, since the National Farmers Federation is an unincorporated association. It is common ground before me that insofar as claims are made against the twenty-ninth respondent, they must be dismissed. Moreover, in so far as the amended statement of claim pleads (at p 35) that the NFF was a majority shareholder and/or owner or entity having control of “the PCS Corporations” (defined in the list of definitions as “the fifth, sixth, twenty-eighth and twenty-ninth respondents”) and that the thirty-first, thirty-second and thirty-third respondents (Messrs Ferguson, Houlihan and McGouchie) were directors, officers and/or employees of the NFF, the pleading cannot stand.
39 Finally, the evidence discloses that the fifth respondent, PCS Training Services Pty Ltd, changed its name on 7 April 1998 to PCS Resources Pty Ltd. PCS Resources Pty Ltd is designated as the sixth respondent. Both the fifth and sixth respondents carry the same Australian Company Number (ACN 081 231 021), and are, in effect, the one entity. It is plain, therefore, that all references to the fifth respondent in the amended statement of claim should be struck out.
The amended statement of claim – the definition page
40 The amended statement of claim contains an index in which each claim asserted by the applicants is described, and the pages on which that particular claim is pleaded are identified. No doubt this index was introduced into the pleading with a view to assisting the reader in following the many and varying claims made in that document.
41 The amended statement of claim then contains a page of what are described as “Definitions”. Among those definitions is one which states:
“Patricks, The Patricks Group and Patricks The Australian Stevedore” means the sixth, seventh, eighth and twelfth to twenty-sixth respondents.”
42 Regrettably, the very next definition is:
“The PCS Companies” means the fifth, sixth, twenty-eighth and twenty-ninth respondents.”
43 The sixth respondent, PCS Resources Pty Ltd, should not have been included within the “Patricks” definition. The error is, however, obvious and easily able to be rectified, as is the deletion from the definition of the “PCS Companies” of the fifth and twenty-ninth respondents.
The Introductory Paragraphs
44 Pages 7-15 of the amended statement of claim contain what are described as “Introductory Paragraphs”. These paragraphs identify the first and second respondents, Container Terminal Management Services Ltd and Fynwest Pty Ltd, as corporations, and outline the nature of the functions performed by them.
45 Curiously, at p 8 the applicants plead that the first and second respondents were engaged in trade and commerce within the meaning of s 4 of the Act “as trading corporations with the sixth, seventh, eighth and ninth respondents directly and with the 12th-26th respondents”. The applicants provide particulars of that claim which include the erroneous assertion that the sixth respondent, PCS Resources Pty Ltd, was part of the Patricks group. It was not. It was instead an NFF related entity.
46 At p 11, par (v) alleges that “[t]he sixth respondent, PCS Resources Pty Limited, the seventh respondent PCS Training Services Pty Ltd and the 28th respondent PCS Operations Pty Ltd (“the PCS Companies”)” were at all material times “a trading corporations [sic]” and were “owned and operated by the National Farmers Federation (NFF) (29th respondent)”. The seventh respondent is, however, Patrick Stevedores Holdings Pty Ltd, not PCS Training Services Pty Ltd, which in any event no longer bears that name. Patrick Stevedores Holdings Pty Ltd is neither owned nor operated by the NFF.
47 At p 12 the particulars to par (v) state that the PCS Companies engaged in trade and commerce with the seventh, eighth and ninth respondents by executing agreements with various named companies, one of which is “National Stevedores Tasmania Pty Limited”. This is presumably a reference to the twelfth respondent, “National Stevedoring Tasmania Pty Ltd”.
48 Paragraph (vi) at p 12 alleges that the seventh respondent, Patrick Stevedores Holdings Pty Ltd, was a trading corporation engaged in trade or commerce within the meaning of s 4 of the Act. The particulars of that allegation assert that the seventh respondent was the owner of the thirteenth, fourteenth and fifteenth respondents “having a majority shareholding” in each of those corporations. Paragraph (vii) at p 13 alleges that the eighth respondent, Lang Corporation Limited, was the owner of the same three respondents, “having a majority shareholding” in each of those corporations. The eighth respondent was also said to be the “ultimate holding company of all Patrick’s [sic] corporations”.
49 These claims are said by the Lang respondents to be inconsistent, and confusing. It is important to note that “embarrassment” in the context of O 11 r 16 “carries the connotation of a pleading which is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed …”: Bartlett v Swan Television and Radio Broadcasters Pty Ltd (1995) ATPR ¶41-434 at 40,889 per Carr J.
The section 53B claims
50 There then follows at pp 15-21 of the amended statement of claim a series of claims pursuant to s 53B of the Act. These claims are made by the applicants against the first to fourth respondents, and not directly against the other respondents. None of the first to fourth respondents has sought to attack the allegations made against them. There are, however, allegations which are later made in the amended statement of claim against both the Lang respondents and the NFF respondents which are, wholly or in part, dependent upon these earlier claims against the first to fourth respondents. It is necessary, therefore, to outline the nature of the claims against the first to fourth respondents, and the criticisms levelled by the Lang and NFF respondents at them.
51 It is contended that on or about 30 October 1997, 13 November 1997 and 27 November 1997 the third respondent, Michael Wells, caused to be published in a newspaper known as “Army” a series of advertisements. These advertisements were headed “Trade Specialists Required”, with a border heading “Civilian Career Opportunity”. The advertisements are said to have contained a series of representations which are set out in particulars of this pleading. The representations are said to have included that the positions represented an excellent career opportunity, that the successful applicants would be paid a competitive salary, and that the positions involved “the surface transport area” in locations throughout Australia, with high levels of skill required. The advertisements indicated that the positions were targeted towards ex-servicemen, or existing servicemen of 20 years’ standing who had been notified of future redundancies.
52 Regrettably, as part of the particulars of the representations contained in these advertisements, the pleading inexplicably shifts at par (vi) on p 16 to representations said to have been made orally to the first applicant by a member of staff of the second respondent, Fynwest Pty Ltd, in which the first applicant was allegedly told that he would be paid wages of $46,000 for the job, plus a $25,000 bonus, that he would require a valid passport, and that a group was leaving at the weekend which he might be able to join. These particulars cannot, of course, be particulars of the representations said to have been contained in the designated advertisements, although they are described as such.
53 The next paragraph on p 16, which is not numbered, though it plainly should be, alleges that the first applicant was sent by facsimile transmission on 1 December 1997 a document headed “Confirmation of Contract Details for Dubai Trainees”. This pleading (or it may be a particular) alleges that the document made certain representations regarding the terms of the first applicant’s employment. Those representations are said to include that the first applicant would sign an Australian Workplace Agreement of three years’ duration, with options to renew, that the company would meet all living and operating expenses in Dubai, that the applicant would undergo a three month training program with certification provided at completion, that he would return to Australia on 28 February 1998 and receive one week’s leave and a further $5,000 bonus, and that operations would commence in mid-March 1998.
54 There is then set out in par (c) on p 17 (there having been no par (b)) a series of allegations some of which cannot be viewed as “particulars” of anything previously pleaded. That paragraph asserts that while in Dubai the third and fourth respondents concealed from the first applicant the true nature of his employment. It asserts, at least by implication, various breaches of the law governing Australian Workplace Agreements.
55 Unfortunately, and again inexplicably, the next part of the amended statement of claim reverts in time to 4 December 1997 under the heading “Representations of Michael Wells”.
56 It pleads in par 1 on p 18 that on 4 December 1997 a meeting of ten prospective employees, including the first applicant, took place at the Golden Wing Lounge at Canberra Airport. During the course of that meeting a series of representations were alleged to have been made by Michael Wells concerning the first applicant’s terms of employment with Fynwest Pty Ltd after the initial training period in Dubai. It is alleged that the first applicant was promised, inter alia, “a job for life”, with an initial salary of a minimum of $46,000 per annum.
57 Paragraph 2 on p 19 asserts that “in the premises” the representations made by Wells to the first applicant “were in contravention of s 53B of the Trade Practices Act 1974”. That section provides:
“A corporation shall not, in relation to employment that is to be, or may be, offered by the corporation or by another person, engage in conduct that is liable to mislead persons seeking employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment.”
58 A contravention of s 53B of the Act, as distinct from s 52, constitutes a breach of s 79 of the Act. A contravention of s 53B is, therefore, an offence against Pt V punishable on conviction. It may also give rise to an order for damages pursuant to s 82 of the Act.
59 The particulars of the representations said to have been made by Wells at the meeting on 4 December 1997 allege that the representations were untrue, and were known by Wells to be false at the time he made them. One such particular is illustrative of the extraordinarily lax manner in which this part of the case has been pleaded:
“Wells knew it to be untrue that the job with Fynwest was not [sic] guaranteed for life.”
60 Contained within the particulars of how the representations made by Mr Wells were said to contravene s 53B of the Act are further representations said to have been made at the meeting, eg:
“The true purpose of the retainer with Fynwest was to lead a covert force of seventy-two (72) men who would replace union labour then employed by the Patricks group of companies at No. 5 Webb Dock, Melbourne and use their skills as ex-army personnel to exercise force to restrict access by the Maritime Union of Australia and its members to No. 5 Webb Dock and use military skills and undertake covert operations to block any intervention by the union labour force in the commercial activities of the Patrick Group.”
61 Presumably this is intended to be a particular of the manner in which the earlier representations pleaded were in contravention of s 53B of the Act.
62 The same particulars then proceed:
“Falsely represented that the training mission was funded by a foreign consortium for work as gantry and straddle operation in the Pacific Basin.”
63 The same comment can be made about this “particular” of the representations previously identified.
64 The amended statement of claim thereafter proceeds at par 3 on pp 19-20, in a somewhat confusing manner, to plead that:
“…the first and second respondents employed Wells and paid him a salary engaged in conduct which contravened section 53B of the Trade Practices Act 1974 (Cwlth) in so far as it [sic] offered through Wells a contract of employment to the first applicant and that the process of engagement as pleaded above was misleading, false and deceptive. The first applicant further pleads that the true nature of the employment was withheld from the applicant who was entitled to assume based on the representations referred to above that at all material times he would be a gantry and straddle operator after training in an overseas port being Port Rashid in Dubai. The first applicant further pleads that the first and second respondents failed to disclose relevant matters.”
65 There are then set out “particulars” of this allegation of a contravention of s 53B of the Act the first two of which in no way relate to the conduct as pleaded in the preceding paragraph.
66 Matters get worse in par 4 on p 20 where the next pleading is:
“The representations made by Wells for and on behalf of the first and second respondents or in the alternative for himself alone was “conduct” within the meaning of section 4(2)(a) and (b) of the Trade Practices Act 1974 (Cwlth) in so far as Wells engaged in conduct that was liable to mislead the first applicant who sought employment.” (emphasis added)
67 One is left to speculate whether “the representations made by Wells” are those alleged to have been made on 4 December 1997 as pleaded at p 18, or some other representations.
68 There is also the difficulty of the expression “or in the alternative for himself alone”. If Wells made those representations for himself alone he cannot be liable under the provisions of s 53B of the Act. Nor can any other respondent be liable for any representations made by Wells in that way.
69 The particulars which follow the allegation in par 4 on p 20 bear no discernible relationship to the allegation itself. For example, the first such particular is:
“Wells refused to act truthfully in the circumstances by representing to the first applicant what the true nature of his retainer was as between he and the first and second respondents only.”
70 It is difficult to understand precisely what was intended to be conveyed by that particular. If it relates to post employment representations, it cannot be a particular of the conduct alleged in par 4 on p 20. Post-contractual representations are incapable in law of constituting a breach of s 53B of the Act: Wright v TNT Australia Pty Ltd (1988) 15 NSWLR 662 at 677 per Lee J. A number of the particulars relied upon by the applicants are of post-employment conduct, and would, on any view, have to be struck out.
71 The amended statement of claim then pleads what it terms “Reliance” on p 21. It does so in the following terms:
“5. At all material times the first applicant relied upon the conduct and representations of Wells for and on behalf of the first and second respondents which was conduct that was liable to mislead the first applicant and/or in fact did mislead him in respect of the seeking of employment from the first and second respondents together with the availability, nature, terms or conditions of or any other matter relating to such employment.”
72 There then follow “particulars” of such reliance, including the first applicant having resigned from his previous employment, having sold his previous business, and having spent monies in the form of expenses to prepare for and participate in the mission to Dubai. Those particulars are followed by the following pleading:
“In respect of all claims the first applicant pleads the preceding particulars of reliance.”
73 I shall return to this method of particularising reliance later in these reasons for judgment.
The section 51A claims
74 There then follow a series of claims which are described as having been brought by the first applicant pursuant to s 51A of the Act against the first to fourth respondents. Section 51A is intended to facilitate proof in misrepresentation cases involving representations as to future matters. It deems representations as to future matters to be misleading for the purposes of, inter alia, ss 52 and 53B, unless the corporation making the representation has reasonable grounds for doing so. Sub-section 51A(2) reverses the onus of proving that reasonable grounds existed for making the representation by casting that onus upon the corporation. The manner in which s 51A of the Act operates, and should be pleaded, is dealt with by Drummond J in Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 819.
75 The amended statement of claim pleads, at p 22, that the first and second respondents, through their servants or agents the third and fourth respondents, made various representations concerning the applicants’ future employment with Fynwest Pty Ltd. It seeks to rely upon “the oral representations made by Wells in contravention of Section 13B [sic]” as being in contravention of s 51A.
76 There are, once again, serious difficulties with this pleading. Section 51A is an interpretation provision which serves an auxiliary function only. It cannot, itself, give rise to a contravention of the Act. Moreover, the allegations made under s 53B do not all arise out of representations as to future matters. They cannot, therefore, simply be transposed into s 51A claims in the manner adopted by the applicants.
77 To assert baldly, as the applicants do, that “the representations were untrue” does not significantly assist in understanding the applicants’ case. The mere fact that representations as to future conduct or events do not come to pass does not make those representations misleading or deceptive: Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82; Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd (supra) per Kenny J.
78 The pleading which complains of irregularities associated with the failure to date and lodge a copy of the Australian Workplace Agreement is difficult to follow. The contention that Fynwest Pty Ltd was wholly dependent for its funding by entities within the Lang group is scarcely more informative.
The section 52 claims
79 The statement of claim then moves to s 52 of the Act. One of the five particulars of the manner in which the first and second respondents engaged in trade and commerce set out at p 24, namely par 1(d), is conceded by counsel for the applicants to be bad, and to justify being struck out.
80 On p 25, the statement of claim purports to invoke s 4(2) of the Act, which provides a definition of “conduct” which includes “refusing to do an act”. “Refusing to do an act”, in turn, extends to “refraining (otherwise than inadvertently) from doing the act”.
81 Having invoked silence on the part of the first four respondents during pre-contractual negotiations held on 4 and 7 December 1997 as the basis for a claim under s 52, the particulars which are provided of this part of the claim range far and wide. They include a host of matters which were said not to have been disclosed to the first applicant at either of those two meetings. Curiously, among these particulars is knowledge said to have been gained by the first to fourth respondents as a result of discussions with the ninth respondent between 19 March 1997 and 11 December 1997, the latter date being four days after the second meeting in question.
82 The pleading continues at p 26, in what is by now the fourth “par 2” in the amended statement of claim:
“By failing to make the representations particularised above in paragraph 14 to the first applicant the first, second, third and fourth respondents were guilty of conduct within the meaning of s 4(2) of the Trade Practices Act 1974 (Cwlth) which was misleading or deceptive or in the alternative likely to mislead and/or deceive the first applicant …”
83 The reference to par 14 was plainly an error. It should have been to par 1. More significantly, the allegation that the respondents had failed to make certain designated representations is hardly an appropriate manner of pleading “refraining (otherwise than inadvertently) from doing” an act. The pleading must allege that the failure to reveal the various matters identified was a deliberate act on the part of the particular respondent against whom the claim is made.
84 To make matters worse, included within the same paragraph which is intended to invoke silence as a basis for the relevant misleading and deceptive conduct, in the very next sentence, is a pleading which purports to pick up earlier facts said to give rise to reliance on the part of the applicants. The next sentence within the same paragraph pleads loss and damage.
85 To include within the one paragraph pleadings which cover the making of the relevant representations, the issue of causation and a claim of damages is not merely inappropriate, but also a direct contravention of O 11 r 1(b) of the Rules.
86 Regrettably the statement of claim then moves from mere lack of clarity to complete obfuscation. It proceeds, at p 27, to allege that the fourth respondent, Peter Kilfoyle, upon arrival in Dubai and thereafter, “committed acts in the nature of direct oral representations made to the first applicant which were in the circumstances representations which contravened the provisions of s 52 …”.
87 It goes without saying that the fourth respondent, as an individual, cannot contravene s 52 of the Act. He may be liable derivatively for a contravention committed by a corporation – see s 75B(1) of the Act. That is not, however, what the applicants plead at pp 27-30 of the amended statement of claim. Section 75B is not accorded even a mention in this part of the document. It is pleaded, rather, that the fourth respondent made the representations “either for himself”, which must be incurably bad as a pleading, or “for and on behalf of the second respondent”, which is not the language of s 75B(1) of the Act and is not, in my view, a proper method of invoking its terms.
88 Moreover, among the representations said to have been made by the fourth respondent are several that are difficult to comprehend. For example, at p 28, particular (j) of sub-par 1 of par 4(b) reads as follows:
“(j) During the second week of training Kilfoyle represented to the first applicant that he declined to provide any information whatsoever in respect of the operation.”
89 How such a “representation”, assuming that it can be given any intelligible meaning, can possibly give rise to a contravention of s 52 of the Act is not explained.
90 Also giving rise to difficulty is particular (v) at p 29. That reads:
“(v) That there is nothing to worry about.”
91 Presumably the applicants contend that they should have been told that there was something to worry about, and that the fourth respondent’s failure to warn them of that is compensable in damages.
92 More bizarre still is particular (y) at p 29. That is in the following terms:
“(y) If anyone does the wrong thing by them they would probably end up in the bottom of the harbour with concrete boots if they double crossed them.”
93 This is pleaded as being a representation which is misleading and deceptive. It is said to be untrue, and to have been known to be untrue. It is said to have been relied upon by the first applicant, and to have caused him loss and damage, though how that could be is difficult to follow. Presumably, if it were shown to be true, that would be a defence to this allegation. Precisely how the Lang respondents, whose liability for this misleading and deceptive conduct is said to be linked to that of the first to fourth respondents, are supposed to plead to such an allegation is not clear.
94 The applicants then plead that “in the premises” the said representations were misleading or deceptive or likely to mislead or deceive the first applicant because those representations were made by Kilfoyle “either by himself” (once again, a pleading which is irremediably bad) or “for and on behalf of” the second respondent, when he knew they were untrue. Kilfoyle is alleged to have known that the mission had failed, but to have continued to withhold such information from the first applicant. In reliance upon Kilfoyle’s silence, and the representations implicit therein, the first applicant is said to have remained in Dubai, and to have continued training.
95 There are then pleaded a series of allegations against the first to fourth respondents which complain of contraventions of s 52 of the Act, all of which are said to have been made after the first applicant’s return to Australia on 23 December 1997. This time the representations are said to have been made by the third respondent, Michael Wells, at a meeting alleged to have taken place at the Travelodge. These representations are particularised at pp 30-1 and include, inter alia:
“(a) That the mission was far from over.
(b) That they, (referring to the four respondents) had more tricks up their sleeve.
(c) That this was just the beginning.
…
(g) That the first applicant had nothing to worry about.
(h) That the first applicant could sit back and wait for further instructions.
…
(k) Kilfoyle represented at the meeting to the first applicant that the people he was working for did not take kindly to people doing the wrong thing and would end up at the bottom of the harbour with concrete boots if the first applicant double crossed him.
…”
96 Once again, it need hardly be stated that particulars of this type, in which the representations particularised are not even stated to be false (let alone knowingly false, though this is not a prerequisite for liability) cannot readily be seen to give rise to a cause of action based upon s 52 of the Act.
97 The last claim made by the first applicant against the first to fourth respondents is pleaded at pp 31-35 of the amended statement of claim. The allegation which is made is of a contravention of s 52 of the Act by the first to fourth respondents arising out of a meeting at the offices of Patrick Stevedores on 31 January 1998 between Corrigan (the ninth respondent), Wells (the third respondent) and Kilfoyle (the fourth respondent). It is said that at the meeting an oral agreement was reached to terminate the services of the first applicant and the other Dubai trainees, and to arrange for some of them to be hired by the NFF stevedoring companies to operate on selected Patrick wharves. It is said that it was also agreed to sever any connection with the Patrick group. That oral agreement was said to have been reconfirmed orally on 16 February 1998 at a meeting of the same three individuals at the Wentworth Hotel in Sydney, and to have been reduced to writing on 26 February 1998.
98 The terms of this supposed agreement are set out in detail in the particulars which are provided. It is then pleaded that “as a result of the matters pleaded aforesaid” the first to fourth, and seventh, eighth and ninth respondents engaged in conduct that was misleading and/or deceptive within the meaning of s 52 of the Act.
99 The pleading which contains this allegation is set out at p 34, and includes:
“(a) Wells, Kilfoyle and Corrigan refused or refrained from disclosing the 31 January 1998 agreement to the first applicant and the other trainees.”
100 Once again, a pleading formulated in this way cannot be permitted to stand. The individuals in question cannot, in their own right, contravene s 52 of the Act. Their liability, as individuals, must arise from s 75B(1) of the Act. That is not, however, the way in which the case is pleaded.
101 Moreover, the particulars of this pleading are difficult to follow. It is said that:
“The first applicant was entitled to ensure that he would:-
(i) Still be employed for three (3) years.
…”
102 It is likely that the word “ensure” was included by mistake, and that what was intended was the word “assume”. If that is not the case, it would be embarrassing to require any respondent to plead to allegations which are couched in such imprecise, and inappropriate, language.
103 The pleading of reliance, at p 35, is also obscure. It reads, in what is by now the eighth “par 2” of the statement of claim:
“The first applicant relied upon the said conduct and did not:
(a) Terminate his services with the first, second, third and fourth respondents.
(b) Remain in employment.
(c) Did not make attempts to seek alternative employment.
(d) Accepted assurances from Kilfoyle and Wells that his job was secure.”
104 A pleading of reliance in that form, with its blend of single and double negatives, is clearly unacceptable. It is both vexatious and embarrassing.
The first applicant’s claim against the NFF and related entities
105 The first applicant then, at p 35, switches from his claims against the first to fourth respondents, and by extension his claims against the Lang respondents, to the liability of NFF, PCS Resources Pty Ltd, PCS Training Services Pty Ltd and PCS Operations Pty Ltd.
106 It has already been noted that the National Farmers Federation is not a legal entity though named, erroneously, as the twenty-ninth respondent. The pleadings which assert that the thirty-first to thirty-third respondents were “directors, officers and/or employees of the National Farmers Federations [sic]” are misconceived.
107 The other entities named in the heading to this part of the statement of claim are the fifth, sixth and twenty-eighth respondents. It has also been noted that the fifth respondent has changed its name from PCS Training Services Pty Ltd to PCS Resources Pty Ltd. They are one and the same entity.
108 Although the twenty-eighth respondent, PCS Operations Pty Ltd, is identified in the heading to the first applicant’s claim against the various entities associated with the NFF, none of the pleadings which follow thereafter mentions PCS Operations Pty Ltd.
109 The substance of the claim made by the first applicant against the NFF entities appears to be that on 25 February 1998 PCS Training Services Pty Ltd and PCS Resources Pty Ltd jointly and/or severally offered him employment. That pleading cannot stand in that form. As from 7 April 1998, PCS Resources Pty Ltd was simply the new name of PCS Training Services Pty Ltd.
110 In any event, the terms of that offer of employment are then set out. It is thereafter contended that there were irregularities associated with the failure of PCS Training Services Pty Ltd (frequently erroneously described in the amended statement of claim as PCS Training Pty Ltd) to ensure that an Australian Workplace Agreement was shown to the first applicant on 2 March 1998, at the time of execution of his contract with PCS Training Services Pty Ltd. A separate bonus agreement of $20,000 was also executed. Unbeknown to the first applicant, that separate agreement was, by reason of the Australian Workplace Agreement, “void” (though described as “voidable” in the last paragraph on p 36).
111 It is then asserted at p 27 that “in the circumstances” the “said representations and actions” on behalf of PCS Training Pty Ltd [sic] and PCS Resources Pty Ltd amounted to conduct within the meaning of s 4(2) of the Act which was misleading or in the alternative liable to mislead the first applicant in contravention of s 53B of the Act.
112 Section 53B does not, unlike s 52, proscribe misleading conduct. It proscribes conduct which is “liable to mislead”. Moreover, the “actions” to which reference is made in the pleading are not, in any way, clearly designated.
113 As for the “representations” relied upon, there are a series of particulars set out at pp 37-8 which do not, at any stage, set out facts which if proved would demonstrate that those representations were “liable to mislead” the first applicant. For example:
“(a) PCS Training [sic] and resources [sic] were fully aware of the plans the ninth respondent and the Patrick Stevedores group to terminate en masse the entire workforce of the Patrick employer companies.”
114 The first applicant then pleads, in the alternative, at p 38 of the amended statement of claim, that PCS Training [sic] and Resources [sic] remained silent contrary to s 4(2) of the Act by refraining or refusing to make representations to the first applicant in breach of s 52 of the Act. The representations which those companies refrained from making, or refused to make, are then set out as particulars. They include:
“(i) On the 7th April 1998 or at a time close thereto there would be massive terminations of the union workforce that was employed by the Patrick companies.
(ii) That he would be part of a one thousand (1000) men replacing the union workforce.
(iii) That legal action would ensue.
(iv) That there would be an industrial dispute.
(v) That there was likely to be blockades by the MUA.
(vi) That PCS Training [sic] & Resources [sic] had no intention whatsoever of retaining the services of the first applicant either partially or at all in the event that the terminated Patrick’s workers who were members of the Maritime Union of Australia were reinstated to their former positions.
(vii) If there was reinstatement of the Maritime Union of Australia workers that it was a certainty that the first applicant would lose his position with PCS Training [sic] & Resources [sic].”
115 To describe this pleading, even if taken in conjunction with the particulars set out above, as containing only “a statement in a summary form of the material facts on which [the first applicant] relies”, would be to do violence to the language of O 11 r 2 of the Rules.
116 More fundamentally, the first applicant then pleads reliance upon the representations actually made, and those not made, at p 39 of the amended statement of claim. In so far as his claim is made under s 53B of the Act, a number of the matters set out under this heading occurred after the first applicant had accepted employment with PCS Training Services Pty Ltd. These include the execution of the second bonus agreement.
117 Representations made by PCS Training Services Pty Ltd after the first applicant had accepted employment with that company are incapable in law of giving rise to liability for a contravention of s 53B of the Act. Section 53B was introduced into the Act to provide for a specific prohibition against the publication of employment advertisements which are liable to mislead prospective employees, and not for any other purpose. It is confined to pre-employment representations.
The second applicant’s claims under the Trade Practices Act
118 The second applicant’s claims against the first to fourth respondents (erroneously described on p 39 of the amended statement of claim as including the fifth respondent, which is PCS Training Services Pty Ltd) are set out at pp 39-57 of that document. They are almost a mirror image of the claims made by the first applicant against the first to fourth respondents at pp 15-35, with some modifications to allow for the fact that the second applicant had a number of similar, but not identical, representations made to him. They suffer from virtually the same defects as do the pleadings on behalf of the first applicant. Because of the close similarity between the two sets of allegations it is unnecessary to traverse them in any detail.
119 Likewise, the second applicant’s claims against the entities associated with the NFF are set out at pp 57-61 of the amended statement of claim. They mirror the claims made by the first applicant at pp 35-39. One difference is the particular set out as (c) at p 58 concerning oral representations made to the second applicant at the Travelodge Hotel in St Kilda, Melbourne. Those representations, as pleaded, were plainly made after the second applicant had accepted employment with PCS Resources Pty Ltd. They could not, therefore, give rise to a claim under s 53B.
120 The drafting is, in many cases, extremely lax. There are numerous references to “the first applicant” in the particulars which are provided where clearly the intent must have been to refer to “the second applicant” – see, for example, pp 60-61. The entire exercise gives the impression of having been cobbled together in haste, without a great deal of thought or attention.
The allegations of breach of contract
121 The statement of claim then shifts from pleading breaches of the Act to pleading various other causes of action. At pp 61-62 allegations of breach of contract are made. These purport to be brought against PCS Training Services Pty Ltd, PCS Operations Pty Ltd (which is named twice) and PCS Resources Pty Ltd. They are brought on behalf of both applicants.
122 The pleading set out at p 62 is, in my opinion, wholly deficient in terms of setting out the material facts upon which the applicants rely in their claim for breach of contract. The general principles which govern a statement of claim based upon a breach of an agreement are set out in Bullen and Leake and Jacob’s Precedents of Pleadings 13th ed (1999) at 268-277.
123 Where such an action is brought the statement of claim should show whether the agreement relied on is in writing or made by word of mouth or is to be implied or inferred from the conduct of the parties. In all cases the date, the parties, and the general substance and effect of the agreement so far as is material must be set out.
124 In the case of a written agreement the document or documents which contain that agreement should be described sufficiently to identify it or them. In the case of an implied agreement the facts and circumstances from which the implication arises should be stated.
125 Consideration is, of course, necessary to the validity of a simple contract. It must, in general, be shown in the statement of claim. The material terms of the agreement which are relied upon must be set out.
126 After the terms of the agreement have been clearly stated, the plaintiff must show whether his claim is founded under or by virtue of the terms of the agreement, or whether it is founded upon a breach thereof.
127 What the applicants have done is to plead as follows:
“1. At all material times PCS Training Services Pty. Limited took over as employer from Fynwest and CTMS Limited or in the alternative, from the Patricks Group without informed consent being conveyed by both applicants.
2. On the 2nd of March 1998 PCS Training Services Limited agreed with the Applicants in writing to pay $5,000.00 at the time of the offer of employment by PCS Training Services Pty. Limited.
3. That the company (PCS Training Services Pty. Limited) would pay a further $20,000.00 at the expiry of three months from the 2nd of March 1998.
4. It was a term and condition of the said agreement that the payments were gross.
5. It was a term and condition of the said agreement that the payments of $20,000.00 and $5,000.00 respectively were conditional upon their nature and source remaining confidential and that any disclosure of the contents of the letter would render the company’s undertaking void.
6. That the said terms and conditions would be accepted by executing a signature on the said document.
Particulars
Letter PCS Training Services Pty. Limited to the first and second applicants dated 2nd of March 1998.
7. On the 2nd of March 1998 both applicants signed the said letter.
8. On the 2nd of June 1998 both applicants were still employed by PCS Training Services Pty. Limited. In the alternative, PCS Operations Pty. Limited or PCS Resources Pty. Limited.
9. The said corporations have failed in breach of the said agreement to pay $20,000.00 of the $25,000.00 agreed to between the parties.
10. In the premises the applicants claim the sum of $20,000.00 each from PCS Training Services Pty. Limited. In the alternative, PCS Operations Pty. Limited or PCS Resources Pty. Limited together with interest from the 2nd of June 1998 to date.”
128 It is difficult to discern from this form of pleading precisely what were the terms of the agreement which is alleged to have been breached. The applicants invite the reader to infer that they performed their part of whatever bargain was reached by saying that on 2 June 1998 they were still employed by PCS Training Pty Ltd. They do not, however, plead in terms that they carried out their contractual obligations. The significance of the reference to an absence of “informed consent” in par 1 is not obvious, or at least not obvious to me.
129 These are, no doubt, matters which are capable of being rectified in a more carefully drawn pleading. As these paragraphs stand, however, it would in my opinion be embarrassing to require the NFF entities, or at least the sixth respondent, PCS Resources Pty Ltd, to plead to them. They should for that reason be struck out.
The conspiracy claims
130 There then follow a series of claims of conspiracy, the precise number of which it is difficult to discern, made by both applicants against various combinations of respondents. The tort of conspiracy, through the added element of combination, may make unlawful an act which, if done by one person alone, would not be actionable. That tort takes two forms according to whether or not unlawful means are used: Elliott v Seymour [1999] FCA 976 at par 89 per Ryan J.
Conspiracy to injure
131 It was firmly established in Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 that if there is a combination of persons whose purpose is to cause damage to the plaintiff, that purpose may render unlawful acts which would otherwise be lawful. Their Lordships made it clear that if the predominant purpose of a combination is to injure another in his trade or business, or in his other legitimate interests, then, if damage results, the tort of conspiracy is made good. The object or purpose of the combination must be to cause damage to the plaintiff. The test for this form of conspiracy is not what the defendants contemplated as a likely or even inevitable consequence of their conduct. It is rather “what is in truth the object in the minds of the combiners when they acted as they did?” – see [1942] AC 435 at 445 per Viscount Simon LC. Malice in the sense of spite or ill will is not essential for liability. What is required is that the alleged conspirators should have acted in order that (not with the result that, even the foreseeable result) the plaintiff should suffer damage. Under this form of conspiracy, if they did not act in order that the plaintiff should suffer damage they are not liable, however inevitable the plaintiff’s damage may have been.
132 Cases of mixed motive are common enough in individuals. It is obvious that a combination of persons may have more than one illegitimate purpose. Where this is so, the question which must be asked is, what was the real or predominant purpose of the combination?
133 Another way of expressing the central requirement of this form of conspiracy to injure is to say that the law is concerned with the distinction between legitimate and illegitimate purposes. The former will legalise the infliction of inevitable harm to the plaintiff’s business. Self-interest is capable of justifying the deliberate doing of lawful acts which inflict harm. Acts done to promote the defendants’ trade or business interests are clearly justified, and negate liability for this form of the tort.
134 An overt act causing damage is an essential element of this form of liability in tort. The plaintiff is required to prove some actual pecuniary loss: Lonrho v Shell Petroleum (No 2) [1982] AC 173 at 189 per Lord Diplock. Whether that loss extends to psychological injury, or “post traumatic stress”, as pleaded, is another matter.
“Unlawful means” conspiracy
135 After a period of uncertainty, the House of Lords in Lonrho Plc v Fayed [1992] 1 AC 448 reaffirmed that this form of the tort, unlike the Crofter variety, does not require a predominant purpose to injury the plaintiff. However, the tort still requires an intention to injure: it is not enough that the defendants combined to do an unlawful act which has the effect of causing damage to the plaintiff. In Rogers’ Winfield and Jolowicz On Tort, 15th ed (1998) it is suggested that the precise nature of the mental element required for this form of the tort remains somewhat elusive (p 645):
“…not least because (1) the cases tend to be decided on assumed facts or on applications to strike out where the plaintiff has merely to show that it is arguable that there is a cause of action and (2) the courts speak of “intention”, a legally complex and protean concept, as if it were something with a fixed and self evident meaning.”
136 The author continues at 646:
“The true test of intention in this context is probably that stated by Lord Denning MR in the Court of Appeal and quoted with apparent approval in Lonrho v Fayed.
“I would suggest that a conspiracy to do an unlawful act – where there is no intention to injure the plaintiff and it is not aimed or directed at him – is not actionable … But if there is an intent to injure him then it is actionable. The intent to injure may not be the predominant motive. It may be mixed with other motives … It is sufficient if the conspiracy is aimed or directed at the plaintiff, and it can reasonably be foreseen that it may injure him, and does in fact injure him.”” (footnotes omitted)
137 The requirement that the conspiracy be “aimed at” the plaintiff, though perhaps difficult to apply in some cases, is sufficient to keep liability within reasonable grounds. It prevents claims by those who suffer incidental, though foreseeable, loss as a result of the commission of what is sometimes described as an “undirected” crime.
138 Since the mental element in “unlawful means” conspiracy is easier to establish than that in the “unlawful purpose” or Crofter type of conspiracy, that form or type of conspiracy may be viewed as preferable from the applicants’ point of view. It is important to determine what amounts to “unlawful means”. There is no doubt that acts which are themselves actionable as torts (for example, deceit) constitute unlawful means.
139 Some modern commentators, including Fleming, and Winfield and Jolowicz, describe conspiracy by unlawful means as being of limited practical importance in the modern law. In Elliott v Seymour (supra) at par 94 Ryan J appeared to share at least some of the doubts of these commentators as to the modern utility of this tort. It seems that these doubts stem from the range of alternative torts which can be invoked to cover the intentional infliction of economic loss and the fact that some of these torts may be easier to prove than this form of conspiracy.
140 Both the unlawful means and the unlawful purpose forms of conspiracy require at least one overt act causing actual pecuniary loss to be proved. Once such loss has been proved, damages are said to be at large, but not to the extent, for example, of allowing damages for loss of reputation.
141 It is problematic as to whether the claims made on behalf of the applicants for “psychological injury” and “post traumatic stress” can be maintained in relation to the tort of conspiracy. A plaintiff in a civil action for conspiracy must prove actual pecuniary loss. If he does so, the damages are at large, though they do not, it would seem, extend to damage to reputation and injury to feelings. Such damage is compensable only in an action for defamation: Lonrho Plc v Fayed (No 5) [1993] 1 WLR 1489 at 1496, 1502-4 and 1509 (Court of Appeal).
142 It is at least arguable that physical injury which is parasitic upon pecuniary loss, including “psychological injury” and “post traumatic stress” is compensable if conspiracy is proved, and pecuniary loss results: Huntley v Thornton [1957] 1 WLR 321 at 350 per Harman J. See also NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (1993) at 46-7. I would not be prepared to dismiss the applicants’ claim for this head of damages as disclosing no reasonable cause of action.
143 Assuming for present purposes that counsel for the applicants is correct in submitting that the “unlawful means” conspiracy described by the House of Lords in Lonrho v Fayed (supra) is available as a cause of action, and that it does not require an allegation that the sole or predominant purpose of the alleged conspirators was to injure the applicants, (a proposition which finds considerable support: see Williams v Hursey (1959) 103 CLR 30; Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; Latham v Singleton [1981] 2 NSWLR 843; and United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766), there is still a serious problem with the manner in which the various conspiracies alleged have been pleaded in the amended statement of claim. These conspiracies seem to shift from one form to the other. They sometimes plead the conspiracy to injure in the Crofter sense. There the real or predominant purpose of the combination must be pleaded as being to injure the applicants. On occasion, the alleged conspiracies seem to switch to the “unlawful means” form, where a pleading of an intent to injure (in the expanded sense discussed above) is sufficient. The difficulty is that one is never quite certain, at any given stage, which of these forms of conspiracy is being alleged.
144 In Elliott v Seymour (supra) Ryan J referred at par 89 to his earlier decision in the same proceedings in which his Honour had noted the “dichotomy established by a long line of authority between a conspiracy to perform an unlawful act or use unlawful means on the one hand and a conspiracy to injure by the use of lawful means on the other”. His Honour went on to assume that the conspiracy alleged by Elliott was of the “unlawful means” kind. He continued:
“If that is so, it remains necessary to plead the agreement or combination and to establish that the occasion had arisen for resorting to or threatening to resort to unlawful means. Otherwise, there would be, as Dixon J pointed out in McKernan v Fraser (1931) 46 CLR 343 at 361:
“… at most … a combination for a purpose to be effected by a lawful means or, if necessary, by unlawful means. The occasion did not arise for resorting to or threatening to resort to unlawful means, and no circumstance occurred in which such means could have been employed against the respondents.”
145 His Honour then referred at par 90 to Lonrho Ltd v Shell Petroleum (No 2) (supra) at 188 in which Lord Diplock said:
“Regarded as a civil tort, however, conspiracy is a highly anomalous cause of action. The gist of the cause of action is damage to the plaintiff; so long as it remains unexecuted the agreement, which alone constitutes the crime of conspiracy, causes no damage; it is only acts done in execution of the agreement that are capable of doing that. So the tort, unlike the crime, consists not of agreement but of concerted action taken pursuant to agreement.”
146 Ryan J went on to state at par 91:
“I would only allow an allegation of conspiracy between the NCA and the DPP to be persisted in if the statement of claim were to specify with more particularity that it does at present when the agreement or combination was formed, what unlawful means were agreed to be employed and the facts or circumstances which made them unlawful.”
147 His Honour continued at par 97:
“As with the allegations of conspiracy between the NCA and the DPP, I am prepared to allow Elliott to continue to allege a conspiracy between the NCA and one or more of NZSC, NZSFO and SMETL only if the statement of claim specifies with sufficient particularity the time and making of each agreement between the alleged conspirators, the unlawful means agreed to be employed and the facts or circumstances which made them unlawful. The unlawful means relied on should be indicated in the body of the pleading alleging the conspiracy or in particulars specifically appended to that part of the pleading and should not be incorporated by reference to several other, otherwise unrelated, parts of the statement of claim. The pleading should also indicate what unlawful acts were performed pursuant to the alleged agreement and how those acts caused damage to Elliott.”
148 In Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 RD Nicholson J referred with approval to the principles stated by von Doussa J in Beach Petroleum NL v Johnson (1991) 105 ALR 456 in which von Doussa J declined to strike out a number of paragraphs in a statement of claim, including one which pleaded that the respondents had acted dishonestly or fraudulently with intent to injure. Justice von Doussa considered that it was open to the applicants to contend that the conduct alleged, which could be viewed as an allegation of conspiracy, gave rise to a cause of action for unlawful interference with economic interests.
149 In dealing with the pleadings for unlawful conspiracy RD Nicholson J stated at par 416:
“By par 14 of statement of claim the applicants allege that from about September 1997, the GPA, Mr Charlton and Mr Criddle wrongfully conspired to injure the applicants by unlawful means. This is particularised as:
“The first, third and fourth respondents agreed to restructure the terms and conditions under which stevedoring employees generally would work at the Port, whereby the positions of the second applications would be altered to their prejudice and the second applicants would be injured in their employment and the first applicant would be injured by reducing its membership and its role."
Paragraph 15 pleads the overt acts said to have been done in pursuance of the conspiracy from 16 October 1997. A large number of the overt acts pleaded are documents set out previously in the chronology and marked with an asterisk.
Paragraph 16 pleads that the conspiracy “was entered into for the purpose of injuring the applicants”. It was particularised in the following terms:
“The purpose of the conspiracy was to achieve a position where stevedoring services were provided at the Port of Geraldton by persons in employment arrangements which involved a direct employer-employee relationship, which did not involve the MUA as a party so that the MUA had no, or no significant, role in protecting or enhancing the interests of its members. Its purpose was also to remove or hinder the ability of the Employees to negotiate collectively and to reduce their conditions of employment and diminish their employment security.”
The statement of claim further alleges that certain of the overt acts identified in par 17(a) were unlawful because they were done for reasons prohibited by s 298K of the WR Act; and that those alleged in par 17(c) were unlawful because they involved or constituted a contravention of s 71 of the Workplace Agreements Act (WA) and/or a contravention of s 170WG of the WR Act. The prohibited reasons pleaded were those in s 298L(a) and (h) of the WR Act.
Paragraph 18 pleads that the applicants have suffered, and will suffer, injury, loss and damage by reason of the conspiracy. The MUA claims to have lost subscription income and suffered diminishment in its standing. The second applicants claim to have lost the opportunity to undertake stevedoring work as employees of the GPA and been forced to accept alternative employment on less favourable terms.”
150 In dealing with the legal requirements of the tort of conspiracy his Honour stated at par 421:
“To establish the tortious conspiracy pleaded by the applicants, it is for the applicants to prove the following matters.
(a) each of the alleged three co-conspirators were [sic] a party to an agreement or combination with either of the other two co-conspirators.
(b) the purpose of that agreement or combination was to injure the applicants by unlawful means.
(c) the agreement or combination was carried into effect by the commission of agreed unlawful acts.
(d) those unlawful acts caused damage to the applicants.”
151 His Honour noted that for the applicants it was contended that it was well established that it is unnecessary for specific intent to be proved where a conspiracy involved unlawful acts or unlawful means. He continued at par 428:
“The case was one of unlawful means conspiracy, the unlawful means consisting of a breach of section 44 of the Stevedoring Industry Act 1956 (Cth). The section prohibited a person from preventing, hindering or persuading another person by violence from working as a waterside worker.”
152 His Honour stated at par 431:
“The High Court had earlier considered the tort of conspiracy in McKernan v Fraser (1931) 46 CLR 343. Gavan Duffy CJ and Starke J accepted the authority of Sorrell v Smith [1925] AC 700 at 724 that “in an action against a set or persons in combination, a conspiracy to injure, followed by actual injury, will have a good cause for action, and motive or intent when the act itself is not illegal is of the essence of the conspiracy”. See also the discussion by Dixon J at 359-362 and by Evatt J at 404-411. See also O’Brien v Dawson (1942) 66 CLR 18 at 26-27, and 41-42. In Cox v Journeaux (No 2) (1935) 52 CLR 712 at 717 Dixon J said:
“To succeed in an action for conspiracy to injure where there is no illegality actual or threatened in the end in view or the means adopted by the defendants, a plaintiff must establish that, in combining, the defendants were animated by a desire to harm him.”
This statement admits that where the conspiracy is for an unlawful purpose that may be manifest “in the end in view or the means of adopted by the defendants”.
153 His Honour continued at par 435:
“The House of Lords in Lonrho PLC v Fayed [1992] 1 AC 448 held that in an action for conspiracy to injure by unlawful means it was unnecessary for the plaintiff to prove the intention on the part of the defendant to injure the plaintiff was the “predominant purpose” of his alleged unlawful action. It was sufficient to show the defendant had an intention to injure the plaintiff by the alleged unlawful act. That distinguished unlawful conspiracy from lawful conspiracy where it was necessary for the plaintiff to prove not merely that there was an intention to injure the plaintiff but also that injury to the plaintiff, rather than advancement of the defendant’s own interests, was the predominant purpose of the conspiracy.”
154 Finally his Honour observed at par 442:
“It follows I do not accept the submissions for the applicants that as a matter of law flowing from what was said by Fullagar J in Williams v Hursey [(1959) 103 CLR 30] at 78 it is sufficient for them to establish that the acts of the conspirators necessarily involved injury to the applicant and that the applicant was a person reasonably within the contemplation of the conspirators as a person likely to suffer damage.”
Application of relevant principles to the present proceeding
155 Returning to the amended statement of claim in the present proceedings, and applying to it the principles set out above, the “first claim” is described as conspiracy to injure the applicants. That claim is made against the first to fourth respondents, and the ninth and eleventh respondents (Messrs Corrigan and Reith). It is set out at pp 63-67 of the amended statement of claim.
156 This claim begins by identifying a series of meetings. At some, but not all, of these meetings, various persons, including some of the alleged conspirators, were said to have been present.
157 A pivotal meeting is said to have taken place in Canberra on 10 April 1997. None of the alleged conspirators is said to have been present. Yet it is pleaded at par 7 on p 63 of the amended statement of claim:
“7. It was agreed at the meeting that Patricks would consider two broad options to stop any further intervention in its business by the Maritime Union of Australia, namely corporate restructuring and the wholesale termination of the Patricks workforce. They further agreed to additional discussions in respect of award simplification, further steps required to keep the port operating, specific skills required to sustain stevedoring operations and the particular aspects of a strategy involving wholesale termination of the Patricks workforce.”
158 Another quite separate agreement is pleaded in pars 8 and 9 on pp 63-4 of that document:
“8. On or about the 20th of April 1997 an agreement was reached between The Hon. John Howard MP Prime Minister, John Sharp, Minister for Transport, Peter Reith, Minister for Industrial Relations, Greg Bondar, departmental officer and Peter Wilson, departmental officer to implement an interventionist approach to waterfront strategy which would require active involvement by the Commonwealth in the stevedoring industry, working closely with major stevedores to bring about major reform. Further, the Commonwealth would, pursuant to its maritime reform agenda, assist in resisting a national maritime union of Australia stoppage whereby the stevedores, being Patricks and P & O, would sack its existing workforce and restart operations with a new non union workforce.
9. It was further agreed at the meeting which took place in Canberra that the Government should adopt the interventionist approach, establish a small team to continue detailed planning necessary to counter the threat of industrial action in the waterfront and maritime industries, to prepare for the implementation of the interventionist strategy and to have the Prime Minister meet with the Chief Executive Officers of the two major stevedores, namely Mr.Hein and Mr.Corrigan.”
159 It is not clear whether “the meeting which took place in Canberra” to which reference is made in par 9 was the meeting of 10 April 1997, or some other meeting, perhaps the one held on 20 April 1997.
160 A further agreement is said to have been reached “on or about May 1997”. This is summarised at par 12 on p 64 as follows:
“On or about May 1997 a meeting took place between the Prime Minister of Australia, The Right Hon. John Howard and the Chief Executive Officers of P & O and Patricks being Mr.Hein and Mr. Corrigan. It was agreed at that meeting that the Government would support the activist approach put forward by Patricks involving the mass termination of jobs then held with the Patricks’ workforce who were members of the Maritime Union of Australia. It was further agreed that the Government would assist to facilitate the changes including assistance by way of political and regulatory means to get Patrick Stevedores back to a level of business activity that was satisfactory to Mr.Corrigan in the event of industrial action together with further assistance by the way of legal assistance, physical security, access to pilots and tugboats as well as visas.”
161 There are then pleaded further meetings held on 3 July 1997 and 30 July 1997. A further agreement is pleaded in par 15 at p 65:
“15. Between June and July 1997 Chris Corrigan met with Minister Reith and departmental officers of the Department of Industrial Relations. It was agreed that:
(a) Corrigan ought to recruit ex military personnel to work on the docks in New South Wales, Victoria, Western Australia and Queensland.
(b) That the ex military personnel would be trained as dock workers.
(c) That the training would take place in an overseas port.
(d) That a cover or false story would be used by Fynwest, CTMS Limited, Michael Wells and Peter Kilfoyle, namely that the funding for the project was from a South East Asian consortium and that the trainees would be working in the Pacific basin and nothing further was to be disclosed to the trainees.”
162 Further meetings and discussions which took place on 7 August 1997, 13 August 1997, 5 September 1997, 15 October 1997, 23 October 1997, in late November 1997 and on 3 December 1997 are then set out. Some of these meetings and discussions do not involve any of the alleged conspirators.
163 The pleading then continues at pp 66-7:
“22. By virtue of the matters pleaded above CTMS limited, Fynwest Pty. Limited, Lang Corporation Limited, Patrick Stevedores Holdings Pty. Limited, Chris Corrigan, Michael Wells, Peter Kilfoyle, Minister Reith, Derren Gillespie and Stephen Webster agreed not to disclose to the trainees, including the two applicants that:-
(a) Patricks was undertaking, with the assistance of the Federal Government, an activist or interventionist approach to the MUA workers with a view to a mass termination of their employment.
(b) That the true purpose of the mission to Dubai was not to train the applicants as dock workers for ports in the Pacific basin with the backing of a foreign consortium.
(c) Not to disclose to the Dubai trainees that the true purpose of their mission was to be trained to replace sacked MUA workers formerly employed by Patrick Stevedores in ports throughout Australia and to work as strike breakers and to work as non union labour for Patricks.
23. The agreement referred to above was to commit the unlawful acts of breaches of Sections 52 and 53B of the Trade Practices Act by CTMS Limited, Fynwest Pty. Limited, Lang Corporation Limited and Patrick Stevedores Pty. Limited by those corporations by the Patricks Group and CTMS, Fynwest, Websterm [sic] Wells, Kilfoyle, Reith and Corrigan.
Particulars
(a) Making misleading and deceptive representations or, in the alternative remaining silent amounting to misleading and deceptive representations, or in the alternative, representations likely to mislead and deceive in trade and commerce with the trainees as pleaded aforesaid;
(b) The unlawful act by Corrigan, Minister Reith, Derren Gillespie, Stephen Webster, Michael Wells and Peter Kilfoyle of aiding, abetting, counselling, procuring, being knowingly concerned in and conspiring to contravene Sections 52 and 53B of the Trade Practices Act by the corporations referred to above by falsely representing to the applicants that they were training to work in the Pacific Basin for a foreign consortium.
24. At all material times the agreement to commit the said unlawful acts were [sic] aimed and directed at the trainees who went to Dubai including the first and second applications [sic] and as a result of the said agreement it was reasonably foreseeable that injury would be sustained by the applicants, which occurred.
Reliance
(i) Pursuant to Section 82 of the Trade Practices Act the applicants plead that in reliance upon the misleading representations pleaded above and the silence by the conspirators the first applicant:-
(a) Sold his business for a loss and resigned his employment;
(b) Undertook the mission to Dubai;
(c) Remained in employment with Fynwest and CTMS Limited and thereafter PCS Resources [sic] and Training [sic] to his detriment;
(d) Took no steps to resign his employment, re-enter the open labour market or attempt to purchase his business (Cougar Computers) after the sale.
(ii) The second applicant in reliance upon the said conduct:-
(a) Resigned his employment;
(b) Did not take any further steps to re-enter the open labour market or seek alternative employment once again as a plumber and gasfitter upon return to Australia.
(c) Sold real estate and personal property suffering losses.”
164 It is interesting to note that there is disconformity between the alleged conspirators set out in the heading to this part of the amended statement of claim at pp 62-3, and those named as conspirators in the body of the pleading itself.
165 The pleading does not identify with any, let alone sufficient, precision the terms of the alleged agreement, when, where or how it was reached, or who were the parties to it. It is not clear whether the agreement not to disclose to the trainees, including the two applicants, the matters set out in par 22 is the agreement referred to in par 23, or whether it is some combination of the agreements separately identified in the preceding paragraphs.
166 It is not clear whether the agreement, or agreements pleaded, are to do a lawful act (where the predominant purpose which must be pleaded is to injure the plaintiff, who is in fact injured), or whether the agreement, or agreements pleaded, are to do an unlawful act, (where what must be pleaded is an intent to injure the plaintiff, though that may not be the predominant purpose). It is only in this latter situation that the pleading can stand if it alleges that the conspiracy is aimed and directed at the plaintiff, that it is reasonably foreseeable that it may injure him, and that it does in fact injure him.
167 The particulars to par 23 on p 66 are singularly uninformative. Indeed par (b) of those particulars is confusing since it treats as a particular of the conspiracy identified in par 23 the unlawful act [sic] by the designated individuals of “aiding, abetting, counselling, procuring, being knowingly concerned and conspiring to contravene Sections 52 and 53B” of the Act. Just how a conspiracy to contravene a particular section of an Act can be a particular of an alleged conspiracy to contravene the same section of the Act is not explained.
168 Paragraph 24 on p 67 is also defective. It is said that the agreement “were [sic] aimed and directed at the trainees who went to Dubai”, and that “as a result of the said agreement it was reasonably foreseeable that injury would be sustained by the applicants, which occurred”.
169 That is not an appropriate manner in which to plead any cause of action in conspiracy. Absent an agreement to use unlawful means, the fact that it was reasonably foreseeable that injury would be sustained as a result of the agreement does not mean that the parties to that agreement intended, or desired, that it occur. Reasonable foreseeability may, in some circumstances, permit an inference of intent, but intent is still the gist of this form of conspiracy and should be pleaded – see Lonhro Plc v Fayed (supra) at 467 per Lord Bridge.
170 The applicants then plead the matters set out in particulars (i) and (ii) of par 24 as “reliance” upon the misleading representations and silence by the conspirators – “pursuant to s 82” of the Act. This suggests that the conspiracy sought to be pleaded is one pursuant to s 75B(1)(d), a conspiracy to effect a contravention of Pt V of the Act.
171 The applicants then plead, in pars 25 and 26 on p 67, as follows:
“25. In the premises, the applicants plead that they suffered severe injury, loss and damage as a result of the agreement by the conspirators to perform the said unlawful acts which were aimed at them and the other trainees whereby it was reasonably foreseeable that they would suffer injury, loss and damage which is particularised below.
26. In the alternative, the parties agreed to injure the applicants, in the alternative, enter into an agreement directed at the applicants with the foreseeable consequence that the applicants would suffer injury and did suffer injury in the form of financial loss and psychological injury.”
172 Paragraph 25 presumably identifies as the agreement to which reference is made the agreement to commit breaches of ss 52 and 53B of the Act. It does not, however, identify the overt acts which were carried out pursuant to that agreement which gave rise to the applicants’ loss and damage. Indeed it does not plead that there were any such overt acts.
173 The loss and damage which is “particularised below” is nowhere clearly spelt out, but may be that which is later identified as having resulted from what is described as the “fifth claim” of conspiracy. That, however, is an entirely separate claim from the claim pleaded in par 25. There are no particulars of “psychological injury” provided in the amended statement of claim until one reaches pp 89-90, where “post-traumatic stress” is alleged, but in no way particularised.
174 Paragraph 26 presumably is intended to plead, as an alternative conspiracy to that referred to in par 25, a conspiracy which had as its predominant purpose causing injury, at least financial, and possibly psychological as well, to the applicants. The “foreseeable consequence” limb of that claim, being based upon what seems to be an agreement to do a “lawful act” (no “unlawful act” being pleaded in par 26) is simply untenable. See Lonhro Plc v Fayed (supra) at 467 per Lord Bridge.
175 The applicant’s “second claim” in conspiracy at p 68 is directed against the first to fourth respondents and against the ninth respondent, Corrigan. It alleges that on 31 January 1998 a meeting took place between Messrs Wells, Kilfoyle and Corrigan. It is said that an oral agreement was reached at that meeting, the terms of which are then set out. Some of those terms are plainly unable to be viewed as part of any agreement eg on p 69:
“(xi) That Kilfoyle would be able to procure the resignations easily because of loyalty by the trainees, including the two applicants, to him.”
176 Putting that to one side, it is pleaded in par 2 on p 69:
“In the circumstances the parties to the meeting, either themselves or for and on behalf of the corporations whom they represented, agreed and conspired to injure the trainees, including the two applicants, by committing an unlawful act.”
177 The particulars of the “unlawful act” which are provided indicate that this was (i) to induce a breach of contract between Fynwest Pty Ltd and the applicants, (ii) to contravene ss 52 and 53B of the Act by falsely representing to the trainees, including the applicants, that within two months of notice being given to them they would have a job for a year with the NFF once they were accepted for training, and (iii) to continue, contrary to s 52 of the Act, to remain silent in respect of Patricks’ plan to terminate its union workforce.
178 It is obvious that a multi object conspiracy of this kind cannot be described simply as a conspiracy to commit an unlawful act. Indeed, it may be that it represents three separate conspiracies, each of which must be separately pleaded. That would certainly be the position in any criminal prosecution: Gerakiteys v The Queen (1984) 153 CLR 317 at 320 per Gibbs CJ; Peters v R (1998) 192 CLR 493 at 520 per McHugh J.
179 The particulars which are provided at pp 69-70 are scarcely illuminating. This agreement was said to have been “aimed and directed at” the applicants and the other remaining trainees. That is the language of Lonrho Plc v Fayed (supra), but pleaded in a conclusory way, without supporting facts. It was said to be an agreement to perform an act contrary to law in consequence of which the applicants suffered loss and damage. Alternatively, it was an agreement to injure the applicants, or to enter into an agreement directed at them which had the “foreseeable consequence” that they would suffer injury, which they did, “in the form of financial loss and psychological injury”. No particulars are provided of this latter claim.
180 Once again, for the reasons set out earlier, a pleading in those terms is plainly defective.
181 Having identified the “first” and “second” conspiracies, the applicants then plead at p 70 a “fifth claim” of conspiracy. Strangely, and somewhat confusingly, no “third” and “fourth” claims appear in the amended statement of claim. This time the parties named in the heading to this part of the pleading are the NFF, Messrs Ferguson, Houlihan, and McGouchie (the thirty-first to thirty-third respondents), Mr Corrigan, the Patricks Group and the twenty-seventh respondent Mr William Clayton. However, no allegation is made against Clayton in the body of the pleading. He is not identified as being associated with any other respondent. He is not said to have attended any meeting, or to have entered into any identified agreement with anyone. It is clear, therefore, that no cause of action whatever is pleaded against him.
182 The “fifth claim” of conspiracy starts by repeating the agreement of 31 January 1998 which was the subject of the second claim of conspiracy. It then pleads that at various meetings in February 1998 it was agreed orally between “the parties” (who are not clearly identified) that the agreement of 31 January 1998 be adopted, and that “the subsidiary companies of the National Farmers Federation, namely PCS Training Services Pty Limited, PCS Operations Pty Limited, and PCS Resources Pty Limited should collectively take over the employment of the applicants”. It is plain, however, that these companies are not subsidiaries of the NFF.
183 It is then alleged in par 5 on p 71 that the agreement was “to injure” the applicants. Particulars of the loss sustained are then set out, but only in relation to the “fifth claim”. The particulars do not purport to be particulars of the first and second claims of conspiracy.
184 The particulars of loss then shift inexplicably, at par (vii) on p 72, to what appears to be a new form of conspiracy – “to commit an unlawful act directed at the applicants with the foreseeable consequences being harm to them”. Still more confusion is generated by virtue of the fact that an alternative to this new form of conspiracy is pleaded at par 6 on p 72 – an agreement to injure the applicants, or, alternatively, an agreement directed at the applicants, once again couched in terms of the “foreseeable consequence” that the applicants would suffer injury.
185 It would be charitable to describe this entire pleading of the tort of conspiracy as merely being confusing. It is never at any stage made clear precisely what were the terms of the agreement said to have given rise to an action in conspiracy. Nor is it made clear what precisely is the intent or purpose of the conspirators relied upon to give rise to liability. The agreement pleaded does not set out with any clarity, let alone precision, the overt acts which are alleged to have been done by each of the alleged conspirators in furtherance of the conspiracy. The state of mind of the parties to the alleged conspiracy is never properly identified, let alone identified with adequate precision. In some cases what is pleaded seems to fall well outside of what is required to be proved to give rise to liability for this tort, and there is no apparent explanation as to why this course has been followed.
186 To confuse matters still further, yet another conspiracy (this time not numbered) is then pleaded at par 11 on p 72. The parties to that conspiracy are said to be Messrs Corrigan, Reith and the tenth respondent, “The Commonwealth of Australia”.
187 This conspiracy is said to arise out of the conspiracy described as the “first claim” for conspiracy. It is unclear when this particular unnumbered agreement was reached, save that it must have been prior to 31 January 1998. The agreement is said to be that:
“(a) The meeting of the 31st of January 1998 between Wells, Kilfoyle and Corrigan would proceed insofar as their agreement was concerned.
(b) That Corrigan had the support of the Department of Industrial Relations, the Minister and the Commonwealth.”
188 Just how these matters can constitute an agreement, let alone a conspiracy, is unclear. The terms of this supposed agreement are not identified with precision, or at all.
189 The pleading continues:
“5. In the premises the parties had agreed for a predominant purpose to injure the applicants by aiding, abetting and supporting the 31st of January 1998 agreement and the unlawful acts which were committed pursuant to it. The applicants replead those particulars of unlawful acts as pleaded above in respect of the 31st of January 1998 agreement as against Corrigan, Minister Reith and the Commonwealth of Australia.”
190 It is curious to note that the concept of “predominant purpose” is first introduced in relation to this last, unnumbered conspiracy. This is the language of the traditional Crofter form of conspiracy to injure, not the language of the Lonrho Plc v Fayed “unlawful means” conspiracy. Yet the “first claim” of conspiracy, out of which this final conspiracy is said to emerge, was pleaded, it would seem, as an “unlawful means” conspiracy.
191 It is by no means clear which of those forms of conspiracy the applicants seek to plead at this point in their amended statement of claim, just as it is unclear throughout the entire pleading which form of conspiracy is being addressed. The applicants do not appear to have turned their minds to just what are the essential elements of each such cause of action. That failure is just one of a number of reasons why the conspiracies pleaded are embarrassing.
192 The applicants plead no facts which if proved would show that the predominant purpose of the alleged conspirators was to injure the applicants. See generally Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 150 per Drummond J. Assuming that one can conspire to aid and abet another, it is far from clear that one can do so by agreeing to “support” another agreement, whatever that might mean.
193 It is then said that as a result of this conspiracy the applicants have suffered severe injury, loss and damage, “as particularised below”. However, no such injury, loss or damage is thereafter particularised, save at pp 89-90 of the amended statement of claim. One of the heads of loss or damage so particularised is “physical and psychological injury in the form of post traumatic stress disorder”, a form of loss or damage said to have arisen from “those matters pleaded above” (ie the preceding 88 pages of claims). Once again, it is uncertain whether this form of loss or damage is compensable under the rubric of the tort of conspiracy. Whether or not it is so compensable, a pleading in this form is plainly embarrassing.
194 Apart from the obvious, and gross, pleading deficiencies contained in those allegations of conspiracy, there are also other, more substantial, difficulties associated with some of these claims.
Conspiracy to commit a substantive wrong
195 It is not open to a party to plead as an alternative to a substantive cause of action already pleaded the tort of conspiracy to commit that substantive wrong: Galland v Mineral Underwriters Ltd [1977] WAR 116 at 119-20 per Burt CJ (with whom Wallace J agreed):
“But the question, as it seems to me, which arises upon this appeal is whether a conspiracy to commit a tort when carried into effect is actionable both as an independent tort, ie the tort of conspiracy, as well as being actionable simply as a tort committed by a number of people acting together to that common end. In the instant case, if it be the fact that the appellant and the other defendants or some of them entered into an agreement to convert the respondent’s money, and if it be the fact that the respondent’s money was converted in the performance of that agreement and in the manner pleaded, has the appellant committed two actionable torts – conversion and conspiracy – or only one, and if one, which one?
I know of no authority which directly supports my opinion, but it seems to me that the answer to that question should be that on those assumptions the appellant has committed one tort and that is the tort of conversion.”
196 See also Sorrell v Smith [1925] AC 700 at 716 per Lord Dunedin, where his Lordship observed:
“Passing, therefore, to the case of concerted action, the first and obvious observation is that if a combination of persons do what if done by one would be a tort, an averment of conspiracy so far as founding a civil action is mere surplusage.”
Conspiracy to contravene a provision of the Trade Practices Act
197 To the extent that the applicants seek to plead a tort of conspiracy to contravene the provisions of the Act at common law, outside the form of conspiracy expressly provided for in s 75B(1)(d) of the Act, and it seems that they do, such a pleading is not available. The Act covers the field in relation to contraventions thereof, including statutory conspiracy to contravene those provisions: Trade Practices Commission v Allied Mills Industries Pty Ltd (1980) 32 ALR 570 at 579 per Sheppard J; Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (supra) at 151-2 per Drummond J. See also R v Chow (1987) 11 NSWLR 561 at 570.
The liability of the Commonwealth for the tort of conspiracy
198 The Commonwealth of Australia, while generally liable in tort, (see Judiciary Act 1903 (Cth) ss 56 and 64 (“the Judiciary Act”)) is not, in my view, civilly liable as an alleged participant in the tort of conspiracy. My conclusion in this regard finds some support in Limerick Steamship Co Ltd v The Commonwealth of Australia (1924) 24 SR(NSW) 214 at 250 per Ferguson J. Strictly speaking, his Honour did not finally resolve this issue. He expressed the view, however, that the Commonwealth would not be vicariously liable for the acts of an agent who had allegedly committed that tort since entering into a conspiracy was plainly outside the scope of that agent’s employment.
199 In James v The Commonwealth (1939) 62 CLR 339 it was held that the Crown in right of the Commonwealth was liable for the torts of its servants acting under its de facto authority, and the fact that such authority was given pursuant to legislation which was later declared by the Privy Council to be constitutionally invalid did not affect these principles. Dixon J (as his Honour then was) observed at 359-60:
“The liability of the Commonwealth for tort may, I think, be treated for purposes in hand as arising under Part IX of the Judiciary Act 1903-1937 … The immunity of the Crown from liability for tort, to which sec 56 seems to be directed, was in part founded, or explained, upon the principle that a servant of the Crown committing an actionable wrong became individually liable but could impose upon the Crown no vicarious responsibility. The maxim rex non potest peccare [the King can do no wrong] excluded the maxim respondeat superior [let the principal answer] … But it is important to see that, once there is found a de-facto authority from the Crown in right of the Commonwealth within the scope of which an alleged tort is committed, the doctrine of ultra vires is not used to produce the same immunity as formerly arose from the incompetence of an officer at common law to bind the Crown by his tortious acts.”
200 There is no doubt that a Minister of the Crown may be liable as an individual for the tort of conspiracy, just as he may be prosecuted for the offence of conspiracy: Connor v Sankey [1976] 2 NSWLR 570 at 600. It does not follow that the Commonwealth itself, whether so designated, or whether described as the Crown in right of the Commonwealth, is similarly liable for that particular tort, whether vicariously or in a direct sense.
201 There might be circumstances, likely to be rare, where an employer would be vicariously liable for a conspiracy involving his servants provided the other requirements of that form of liability are met. There may also be a criminal conspiracy between a company and its directors whose knowledge and purpose may be imputed to the company: R v ICR Haulage Limited [1944] 1 KB 551 at 559.
202 However, in the case of governmental parties, as Dixon J observed in James (supra),there is now a considerable body of statute law which has a bearing upon their civil liability. Crown proceedings legislation, including ss 56 and 64 of the Judiciary Act 1903 (Cth) has, generally speaking, removed the protections against liability for tort which were accorded at common law to the Crown. These protections included immunity from both direct and vicarious liability in tort.
203 Section 64 of the Judiciary Act provides as follows:
“In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.”
204 The general principle underlying s 64 of the Judiciary Act is to place the Crown in right of the Commonwealth (synonymous for these purposes with the Commonwealth of Australia: Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 362 per Dixon J; but see Sue v Hill (1999) 163 ALR 648 at 671-4 per Gleeson CJ, Gummow and Hayne JJ) “as nearly as possible” in the same position in terms of potential liability for tort as would be applicable in proceedings between subject and subject.
205 The expression “as nearly as possible” was considered by Sundberg J in Baillieu v Australian Electoral Commission (1996) 63 FCR 210 where his Honour observed (at 225-6):
“Since Maguire v Simpson (1977) 139 CLR 362 it has been established that in every suit to which the Commonwealth is a party s 64 requires the rights of the parties to be ascertained, as nearly as possible, by the same rules of law, substantive and procedural, statutory or otherwise, as would apply if the Commonwealth were a subject instead of being the Crown. The Commonwealth acquires no special privilege except where it is not possible to give it the same rights and subject it to the same liabilities as an ordinary subject: see Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 264-5.
In Asiatic Steam Navigation Co Ltd v Commonwealth (1956) 96 CLR 397 at 427, Kitto J rendered the expression ‘as nearly as possible’ as ‘as completely as possible’, and went on to say (at 428) that s 64 in effect requires the Court ‘to put out of account any special position of the Crown, and so far as possible to decide all questions of right in the same way as they would have been decided if the Commonwealth … had been a subject’. In Evans Deakin at 264-265, Gibbs CJ, Mason, Wilson, Deane and Dawson JJ agreed that ‘as completely as possible’ was the natural meaning of ‘as nearly as possible’, and after quoting the passage I have just set out, said it was ‘unnecessary to consider whether in some cases at least it would be right to consider the special position of the Crown’, as the Commonwealth in that case ‘was not performing a function peculiar to government’. In Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 68, the Court said it was not necessary to consider whether, and if so to what extent, s 64 would be ineffective to apply the provisions of State laws in circumstances where their application would interfere with the discharge of ‘an essentially governmental function such as the collection of taxes’. See also Maguire v Simpson at 393-395.”
Vicarious Liability of the Commonwealth for conspiracy
206 With respect to vicarious liability, the Commonwealth as an employer is open to claims of vicarious liability in relation to acts committed by a servant in the course of his employment. In Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 249 Dixon J stated:
“… the Crown is liable for the tort of an officer committed within the scope of his duty, except in situations where the duty which he is attempting to fulfil is one cast upon him by law to be executed as an independent responsibility, so that the Crown is not acting through him.”
207 The Commonwealth will be vicariously liable where the Crown employee was acting within the de facto authority of the Crown: James v Commonwealth (supra). In some cases it might also be considered that the Crown employee was impliedly authorised to commit the particular tortious act: Racz v Home Office [1994] 2 AC 45 at 50-4 per Lord Jauncey of Tullichettle.
208 The Commonwealth will not be vicariously liable if the law charges an employee with a discretion and responsibility in the execution of an independent legal duty. The principle is that a public servant who is exercising an “independent discretion” that is conferred upon him personally is not acting in the course of his employment with the Crown: Enever v The King (1906) 3 CLR 969; Field v Nott (1939) 62 CLR 660. There has been cogent criticism levelled at this “independent discretion” rule – see, for example, P Finn, “Claims Against Government Legislation” in Essays on Law and Government Vol 2 (1996) at 36-7. See also the decision of the Full Court of this Court in Konrad v Victoria Police [1999] FCA 988 in which Finkelstein J (with whom Ryan and North JJ were in substantial agreement) referred to ‘much informed criticism’ of the common law notion of ‘employee’ (at par 101). In Konrad the Court held that although at common law a police officer is not an employee, the nature of Pt VIA Div 3 of the Industrial Relations Act 1988 (Cth) (which deals with dismissal) was such that it should ‘be given an interpretation that [would] advance its broad purposes’ and that Victorian police officers fell within its purview. As the law presently stands, however, the ‘independent discretion’ rule represents a restriction upon the vicarious liability of the Commonwealth at common law for the torts of its servants.
209 A Minister of the Crown is not generally viewed in Australia as a servant of the Crown, but is regarded as holding office under the Crown. The concept of a public office is feudal in origin. Persons were appointed to such office under the prerogative, and were subject to little, if any, direction. The system was altered radically in the nineteenth century, and was replaced by a system of public administration in which almost all office holders became classified as employees of the Crown. Some public offices remain, however, and they include Ministers of the Crown. The same may be said of members of the judiciary.
210 In State Chamber of Commerce and Industry v Commonwealth (The Second Fringe Benefits Tax Case) (1987) 163 CLR 329, the High Court accepted that Members of Parliament hold office, and are not to be classed as employees of the Crown. In Canada, the United Kingdom and New Zealand this would not affect the potential vicarious liability of the Crown. In those countries legislation has been enacted regarding the vicarious liability of the Crown in tort for acts committed by Crown servants or agents, and the term “agent” is plainly wider than the term “servant”: see Crown Liability Act, RSC 1985, c C-50; Crown Proceedings Act 1947 c 44 (UK) and Crown Proceedings Act 1950 (NZ).
211 The majority of the Canadian provinces have also enacted similar legislation. See generally PW Hogg, Liability of the Crown 2nd ed (1989) at 85. Each provincial Act, with the exception of those enacted in Quebec and British Columbia, provides that the Crown is vicariously liable in respect of torts committed by servants (or officers) and agents. The words “servant” and “officer”, depending upon which of those words is used in the particular Act, are defined as including “a Minister of the Crown”. A similar provision exists in New Zealand in which pursuant to s 2 of the Crown Proceedings Act the term “servant” is defined to include a “Minister of the Crown”. It follows that the Crown’s vicarious liability for the tortious acts of its Ministers is expressly provided for by statute in those jurisdictions.
212 Because a Minister is not viewed as an employee or servant of the Crown in this country it must be doubtful that the Commonwealth can be vicariously liable for a tort committed by him. In Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 a Full Court of this Court (Neaves, Ryan and Gummow JJ) considered the question whether the Commonwealth is liable for torts committed by a Minister of State in the conduct of his portfolio. The Court stated at 483-4:
“[W]hilst Ministers of State are undoubtedly “officers of the Commonwealth” and amenable to injunction, prohibition and mandamus under s 75(v) of the Constitution, it by no means follows that they are correctly classified as servants for whose torts the Commonwealth is liable in the same way as an employer is vicariously liable for the torts of an employee.
Ministers of State must be members of the Federal Executive Council; they are appointed to administer departments of State and shall not hold office for a longer period than three months unless elected to the Senate or the House of Representatives. Sections 62 and 64 of the Constitution so provide. The system of responsible government is thereby adopted by the Constitution: New South Wales v Commonwealth (1975) 135 CLR 337 at 364–365. In administering his portfolio, a Minister of State is not merely a member of the Federal Executive Council upon whose advice the Governor-General relies; he is the person through whom in matters within that portfolio the executive government of the Commonwealth acts: Radio Corporation Pty Ltd v Commonwealth (1938) 59 CLR 170 at 192.
Accordingly, it is not self-evident that in respect of acts and omissions of a Minister in the conduct of his portfolio the tortious liability is that of the Minister as a servant for which the Commonwealth is vicariously liable.”
213 The Court observed that these matters had been inadequately explored in submissions and, given the legal complexities of the argument, preferred to leave the question for another day. The only subsequent decision which relevantly refers to Unilan is Re Ling; Ex parte Ling v Commonwealth (1995) 58 FCR 129. One of the issues to be decided in that case concerned whether a bankrupt could have set up his claims for negligence and defamation against the Commonwealth as cross claims in earlier proceedings. Hill J stated at 132:
“From the Bar table it was said that it was not until the decision of the Full Court of this Court in Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 that the possibility of suing the Commonwealth in tort became clear. Before that case, it was said, so to do would have been at the ‘cutting edge’ of the law. It is not clear to me that Unilan was in this respect a watershed of legal development. On one view of the matter what was said by the Full Court in Unilan (at 483–484) might not be thought encouraging to the debtor. However, it is unnecessary to explore that question.”
214 Despite the view which seems to prevail in Australia that Ministers are not regarded as servants of the Crown, there is a significant body of English authority which suggests that this matter may not be entirely free from doubt.
215 In Town Investments Ltd v Department of the Environment [1978] AC 359 it was accepted that Ministers could be regarded as being servants of the Crown. For example, Lord Diplock said at 383:
“The relationship of master and servant does not exist between a minister in charge of a government department and any other government servant employed in that department in whatever grade of the civil service he may be. They are both fellow servants of the Crown.”
216 Lord Morris of Borth-y-Gest said (at 393), discussing the difference between Ministers and the Crown:
“A minister of the ‘Crown’ is and is constantly referred to as a servant of the Crown. But it cannot be suggested that the minister is or becomes ‘the Crown’. Even if the grandiloquent description of being an ‘emanation’ of the Crown is applied to him he remains separate from the Crown and is not and does not become the Crown. When acting on behalf of or for the purposes of ‘the Crown’ some of the well recognised immunities of ‘the Crown’ may cover what he does. But he does not become absolved from liability for a personal tortious act even though ‘the Queen can do no wrong’.
217 Lord Simon of Glaisdale stated (at 398):
“The minister at the head of a department of central government is, of course, part of that department. The very term ‘minister’ is, indeed, again symbolic, denoting an origin as the King’s servant, and continued status as servant or agent of the Crown.
218 Lord Simon of Glaisdale also referred to the decision in Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584, and cited a number of passages from the majority and minority judgments in that case (at 399):
“Lord Reid, at p.612, quoted from the speech of Lord Westbury LC in Mersey Docks and Harbour Board Trustees v Cameron (1865) 11 HL Cas 443, 501–2, commenting himself, at p.613:
‘…by “the direct and immediate servants of the Crown, whose occupation is the occupation of the Crown itself” he appears to me simply to have meant those whose position under the Crown is such that their occupation is the Crown’s occupation’, and, at p 616: ‘Ministers are pre-eminently Her Majesty’s servants.’
Lord Keith of Avonholm said, at p.635:
‘In all this there is little that throws light on what constitutes a person a servant of the Crown. Obvious cases like a minister of state … need hardly be considered.’”
219 Ministers are also referred to as servants of the Crown in some secondary sources. For example, Renfree in The Executive Power of the Commonwealth of Australia (1984) has a chapter entitled “Ministers of State and Other Servants of the Crown in Right of the Commonwealth”. In this chapter, Renfree states that Ministers are servants of the Crown, as well as being members of that class of Crown servants who also hold public office: see 185, 231.
220 Nevertheless, even if Ministers can be classified as servants of the Crown, it is highly likely that they exercise “independent discretion”. As discussed previously, in such circumstances the Crown would not be held vicariously liable for the tortious conduct of a Minister. Alternatively, if Ministers were regarded as not exercising an independent discretion in relation to the commission of certain torts, it is unlikely that the commission of the tort of conspiracy to do an unlawful act, or a lawful act by unlawful means, could be considered to be within the scope of their employment.
221 This contention is supported by the fact that, in relation to the tort of conspiracy, an employer will only be found vicariously liable for acts of conspiracy committed by an employee if there is actual or ostensible authority for the acts constituting the conspiracy (which is generally unlikely): see Credit Lyonnais Bank Nederland NV (now Generale Bank Nederland NV) v Export Credit Guarantee Department [1998] 1 Lloyds Rep 19 at 36–7 (per Stuart-Smith LJ), 41–2 (per Hobhouse LJ).
Direct liability of the Commonwealth for conspiracy
222 Another argument in favour of Crown liability for the tortious acts of Ministers is based on the view that Ministers are “emanations” of the Crown. Such liability would be direct rather than vicarious. This view was alluded to by Lord Morris of Borth-y-gest in the passage from Town Investments cited above. I also refer to the judgment of McTiernan J in New South Wales v Bardolph (1934) 52 CLR 455 in this regard, who stated (at 518–9):
“In his judgment in Mackenzie-Kennedy v Air Council [fn: (1927) 2 KB 517 at pp. 522, 523], the same learned Lord Justice approved the observations of Day and Wills JJ in Gilbert v Corporation of Trinity House [fn: (1886) 17 QBD 795], as to the authority of Ministers of State. These observations correctly define the relationship between responsible Ministers in New South Wales to the Crown in right of that State. ‘All the great officers of State are, if I may say so, emanations from the Crown. They are delegations by the Crown of its own authority to particular individuals’ (per Day J [fn: (1886) 17 QBD at p.801]). ‘I am clear that at common law there is no instance of any person or body having two distinct capacities – in one of which there is no liability to be sued because the person or body is the direct representative of the Crown, and in the other there is a liability to be sued because the capacity is that of a private corporation or person’ (per Wills J [fn: (1886) 17 QBD at p.803]). The Premier acted in his official and representative capacity and no action on the contract would lie against him in that capacity … Such an action could not be maintained because the Crown would be the real entity pursued …”
223 There is no doubt that a company which can, of course, act only through the “mind and will” of its senior management can be rendered criminally liable as a conspirator. Such liability is direct, and not in any sense vicarious: R v ICR Haulage Ltd (supra). While the Commonwealth of Australia has been described as being akin to a “corporation sole”, it is also a term descriptive of the Crown in right of the Commonwealth. The special position of the Crown in relation to its immunity from criminal liability must be considered.
224 While ss 56-58 of the Judiciary Act seemingly allow for all types of civil proceedings in contract or tort to be initiated against the Crown (Breavington v Godleman (1988) 169 CLR 41 at 68-9 per Mason CJ), there must be implicit in those provisions some limiting principles arising from the very nature of governmental activity. These include, in particular, the fundamental principle that absent legislation which expressly or by necessary implication permits such a course, the Crown in right of the Commonwealth cannot be found by the Courts to have committed what is, in effect, a serious common law offence. See Blackstone I Comm c VII, 246; IV, c.11 32 where the King’s unquestioned immunity from prosecution for crime was treated as being based upon the somewhat arcane legal fiction that the Sovereign was incapable of possessing the requisite mens rea.
225 A more modern and less dubious justification for the doctrine is that the Sovereign is immune from punishment, rather than being incapable of committing a crime. There is an absence in the constitutional theory of Australia of any tribunal possessed of jurisdiction to try the Sovereign for an indictable offence. Indictments are, after all, preferred in the name of, and on behalf of, the Queen.
226 In Kenny’s Outlines of Criminal Law (edited by JWC Turner) 18th ed (1964) the learned author observes at p 70:
“At the trial of Charles I, even the Parliament’s counsel admitted the correctness of a judicial dictum, of Henry VII’s time, that “If the King should, in passion, kill a man, this would be no felony for which to take away the King’s life”.” (footnote omitted)
227 The like immunity which is conceded by the comity of nations to foreign sovereigns must also be remembered: R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827 at 844 per Lord Browne-Wilkinson.
228 The difficulty with holding the Crown in right of the Commonwealth civilly liable in tort for conspiracy is that in so far as such liability is said to be direct, it attributes to the Commonwealth the very elements which go to make up the commission of that crime. Indeed, the tort requires elements additional to the crime – overt acts leading to actual loss or damage. However, all of the elements necessary to constitute the crime of conspiracy are contained within the tort, and no finding that the tort has been committed can be made without an implicit finding, albeit at a lower standard of proof than that required for a prosecution, that the crime has also been committed.
229 I accept, of course, that there are significant differences between the crime of conspiracy and the tort of the same name.
230 In Midland Bank Trust Co Ltd v Green (No 3) [1982] 1 Ch 529 at 541 Fox LJ stated:
“I come then to the comparison of the crime and the tort at common law. No doubt they have to some extent a common origin. But the definition suggests a closeness which in fact does not exist. The essence of the crime is agreement – execution of that agreement is not necessary. The position is quite different in the law of tort. There must not merely be an agreement (which must be with the intention of damaging the plaintiff as the decision of the House of Lords in the Lonrho case [1982] AC 173 now establishes), but damage to the plaintiff must in addition be sustained.
The ambit of the two forms of conspiracy is, therefore, very different. In the criminal law the gist of the offence is the agreement. In tort, on the other hand, although the agreement is necessary, intention to injure and actual injury are also both necessary. It seems to me, therefore, that the two forms of conspiracy are so different that there is no logical reason for asserting that the immunity given in the case of crime ought as a matter of principle to be extended to the tort. Nor, I should add, is the historical development of the two forms of conspiracy so close that constituents of one should be regarded as being likely to be applicable to the other. The civil wrong in its present form is really of fairly modern origin. It was largely established in three cases about the end of the last century, the Mogul case 23 QBD 598; Allen v Flood [1898] AC 1 and Quinn v Leathem [1901] AC 495, followed by the Crofter case [1942] AC 435. So late an origin does not suggest the likely absorption in to the tort of the, by then, archaic notion of complete unity in law between husband and wife.”
231 It should be noted, however, that the issue in the Midland Bank case was whether there were considerations of public policy which should lead the court to decide that for the purposes of the law of tort husband and wife could not conspire together, a public policy principle which had existed in the criminal law for a very long time. That is an issue far removed from whether the Crown in right of the Commonwealth should be amenable to liability, in a direct sense, for the tort of conspiracy.
232 I note that Professor Hogg, in his seminal work, considers the possibility of the Crown being held directly criminally liable for offences which require mens rea. The learned author draws an analogy from those cases where corporations have been prosecuted on the basis of the mens rea of their “directing mind and will”. He cites no criminal case as support for this proposition, but rather only a civil case, The Truculent [1952] P 1 in which the “actual fault and privity” of the Third Sea Lord (as “directing mind” of the Admiralty) rendered the Crown civilly liable. For the reasons set out above I do not accept the correctness of this reasoning in so far as it is said to render the Crown potentially criminally liable in relation to the offence of conspiracy.
233 As for the vicarious liability of the Commonwealth for conspiracy for the acts of a Minister, it is difficult to see how an agreement to carry out an unlawful enterprise which amounts to a criminal offence can possibly be viewed as other than being entirely outside the scope of any principles of agency upon which it could be said that the Commonwealth could be liable, even if the Minister could be viewed as a Crown employee. Such a view accords with the special position occupied by a Minister of the Crown, and with the range of independent discretions which are vested in Ministers in the performance of their duties.
234 Not surprisingly, perhaps, counsel for the applicants did not refer to any authority in which the Commonwealth of Australia had been held liable, whether directly or vicariously, for this particular tort, whether in relation to the conduct of a Minister, or of a recognised Crown employee.
235 The issue was, however, touched upon briefly during the course of the application for special leave to appeal before the High Court in the Patrick Stevedores case (supra). The transcript of the argument before the Court reveals the following exchange:
“BRENNAN CJ: The question of the Commonwealth’s liability for a conspiracy is a very difficult problem.
MR GYLES: But, your Honour, also the evidence - - -
BRENNAN CJ: We are not talking about liability of individual persons, such as, for example, the Minister but the Commonwealth itself is a different kettle of fish.
….
MR GYLES: … the question of the Commonwealth’s liability for the tort of conspiracy was raised by his Honour the Chief Justice. My learned friends, of course, have sued the Commonwealth and that is the position before this Court. There has been no application made to strike them out. Might I say also, your Honours, that in view of the decision of this Court in Northern Territory v Mengel (1995) 185 CLR 307 at 345 to 348, it would be a very difficult argument to put. Once there can be Commonwealth liability for intentional torts, it is difficult to see why there should be any distinction drawn in the case of conspiracy. In any event we, with the applicant of the case, will certainly join forces to keep the Commonwealth there.”
236 The implementation of government policy by a Minister of the Crown cannot readily be equated with Commonwealth activity which has, as an analogue, the private activity of an individual party eg operating a factory. The principles of vicarious liability upon which the Commonwealth’s potential liability for conspiracy must depend do not lend themselves to the imposition of any such liability for this tort in relation to the conduct of a Minister, or, I believe, a Crown employee – Attorney-General for New South Wales v Perpetual Trustee Co Ltd (supra) at 249 per Dixon J.
237 The position in the United States is rather different from that which applies in this country. In Laurence H Tribe’s American Constitutional Law 2nd ed (1988) at par 4-14 the following passage appears:
“In general, there is no executive immunity – common law or otherwise – from criminal prosecution. It has nonetheless been argued that the Constitution’s provision of impeachment as a means of removing “civil Officers” bars any indictment or prosecution of impeachable officials until after their removal. With respect to the Vice President, this argument has been quite properly rejected in practice, although it has not been authoritatively adjudicated: prior to his 1973 resignation, Vice President Spiro Agnew was indicted by a federal grand jury on charges of bribery and income tax evasion. With respect to the President, some commentators have assumed that the Chief Executive’s unique role mandates immunity from criminal process prior to removal. However, in United States v Nixon [418 US 683 (1974)], in ruling on the question whether President Nixon could appeal an order denying a motion to quash a subpoena without first being cited for contempt, the Supreme Court did not hold the President immune to such criminal citation but rather noted only that [at 692] “issuing a citation to a President simply in order to invoke review” would be “unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government”. Arguably, the Nixon decision supports, by implication, the proposition that there might be instances in which a sitting President could be cited for contempt or otherwise criminally charged, but not even that reading of Nixon would imply presidential amenability to criminal proceedings generally.” (footnotes omitted)
238 Professor Tribe then continues:
“The law is clearer with respect to civil liability for executive transgressions. The Supreme Court has long recognised a federal common law immunity protecting executive officials, in the absence of congressionally-created exceptions, from civil liability to private plaintiffs arising out of acts performed “in the discharge of duties imposed upon [such officials] by law”. [ fn. Spalding v Vilas 161 US 483, 498 (1896) …]
239 It appears that there are limits upon federal executive immunity from damages liability based upon what is described as “a good faith” requirement. The official must not have acted maliciously, or with knowledge that his or her conduct was illegal, and it would seem there is also an “objective” requirement that the official had reasonable grounds for believing that the action violated no statutory or constitutional prohibition.
240 In Nixon v Fitzgerald 457 US 731 (1982) a divided Court upheld the former President’s claim of absolute protection from damages liability. The majority treated absolute presidential immunity as “a functionally mandated incident of the President’s unique office”. The dissentients charged that the decision placed the President above the law, and was “a reversion to the notion that the King can do no wrong”. Professor Tribe notes that the majority in Nixon v Fitzgerald did not, in fact, rule that the Constitution flatly forbids assessment of damages against the President. The Court held only that such liability could not be imposed upon the President without explicit congressional direction.
241 The vicarious liability of the Federal Government for the tortious acts of its servants is established by the Federal Tort Claims Act of 1946 (“FTCA”). As in Australia, the Federal Government of the United States is open to claims of vicarious liability on the basis of the doctrine of “respondeat superior”, for the acts of its employees performed within the scope of their employment. However, the operation of the FTCA is largely limited to claims of liability for negligence. In addition, the FTCA’s waiver of immunity is further limited in that it does not include liability arising from the discretionary acts of government officials.
242 As a result, any damage resulting from discretionary executive action would not be subject to compensation by the US Government.
The misfeasance in public office claim
243 The claim which is brought against the eleventh respondent, Mr Reith, for misfeasance in public office is set out in the amended statement of claim at pp 73-76. The elements of the tort were examined by the High Court in Northern Territory v Mengel (1995) 185 CLR 307. The Court said that the tort occurs where a public officer does an act which to his knowledge amounts to an abuse of office and thereby causes damage to another person. There must also be an intentional element in addition to the knowledge of the officer that the act which results in damage is an excess of power. In relation to this intentional element, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ in Northern Territory v Mengel (supra) said the following at 347:
“For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm … or which are done with reckless indifference to the harm that is likely to ensue…”
244 The tort of misfeasance in public office was therefore viewed by the majority in Mengel as a counterpart to the torts imposing liability on private individuals for the intentional infliction of emotional harm.
245 Having regard to the manner in which the tort is formulated in the amended statement of claim, it is necessary to set out the relevant paragraphs in their entirety. They are as follows (see p 73):
“12. Misfeasance in Public Office – the Honourable Peter Keaston Reith MP Minister for Industrial Relations (The Minister)
1. At all material times the Minister was a member of the Federal Executive Council pursuant to Section 62 of the Constitution.
2. At all material times the Minister was entitled to exercise his executive power within the meaning of Section 61 of the Constitution extending to the execution and maintenance of the Constitution and the laws of the Commonwealth.
3. The Minister, either by himself or through his departmental officers acting within the scope of his authority, met with Christopher Corrigan on the dates referred to above in the applicants first claim of conspiracy.
4. As a result of those meetings it was agreed between Corrigan and the Minister in approximately May 1997 to undertake an activist or interventionist approach to waterside reform which involved a corporate restructuring of Patrick Stevedores and a termination of its entire workforce then employed by Patrick Stevedores Pty. Limited numbered 123 and National Stevedores of Tasmania Pty. Limited.
5. It was further agreed that as a result of Patricks restructuring there would be a national MUA stoppage and that the existing workforce of Patricks would be sacked and replaced by a new non union workforce.
6. The Minister was aware from conversations he had with Chris Corrigan between the 6th of August 1997 and the 3rd of December 1997 together with conversations and meetings which took place between Stephen Webster, a departmental officer of the Minister and Michael Wells on the 7th of August 1997 and 5th of September 1997 that a force of ex military personnel would be funded by the Patricks group to train in Dubai as a non union labour force originally comprising of seventy six men with a view to an ultimate number of one thousand to replace as non union labour the Patricks workers who were to be sacked and to use the trainees as a security force to guard the docks and resist any attempts by protesting MUA workers to re-enter the Patricks docks.
7. In the circumstances the Minister had conspired with Corrigan to contravene Section 298K of the Workplace Relations Act 1996 (Commonwealth) which was an act committed outside his ministerial powers conferred upon him by the Constitution which did not extend to a contravention of a Commonwealth law. In the alternative, aiding, abetting, assisting or being knowingly concerned in the contravention of a Commonwealth law.
Particulars
(i) The agreements between the Minister and Corrigan were oral.
(ii) The Minister agreed to provide political, regulatory and funding support to assist Corrigan in the corporate restructure.
(iii) The corporate restructure by the purchase of Patrick Stevedores operations of the four Patrick employer companies and the effect of altering substantially the positions of existing Maritime Union employees contrary to Section 298K(i)(c) such that the workers would lose their employment, thus their income.
(iv) The Minister in assisting Patricks and Mr.Corrigan contravened Section 298L of the Workplace Relations Act 1996 by engaging in conduct for a prohibited reason contrary to Section 298L(i)(a) and the conduct prohibited by Section 298K(i)(c) altering the position of the Patricks employees on the basis that they were at all material times officers, delegates and members of an industrial association being the Maritime Union of Australia.
8. As a result of the Minister’s actions which did not extend to the contravention of a Commonwealth law, the Minister acted beyond power and did so in a way which was intended to cause harm to those workers then employed by Patrick Stevedores who were members of the Maritime Union of Australia. Further, the acts of the Minister were done with reckless indifference to the applicants and the other trainees and involved the foreseeable risk of harm to them.
Particulars
(i) It was foreseeable that if a corporate restructure of Patricks went ahead there would be massive industrial disputes involving blockades of Number 5 Webb Dock and other docks where Patricks performed stevedoring activities, exposing the non union labour force comprised by the trainees to the foreseeable risk of harm as a result of confrontations which would occur when the non union labour force was undertaking stevedoring work.
(ii) That there would a high risk of violence at the docks.
(iii) That Patricks would be engaging the services of the trainees to work at the docks despite the blockades and protests that were likely to ensue.
(iv) That there was a high probability that the Maritime Union of Australia would commence legal proceedings to restrain Patricks from committing breaches of Section 298K which would necessarily involve the suspension of work by the non union workforce and jeopardise their jobs with Patricks or in the alternative Fynwest Pty.Limited and CTMS Limited.
(v) That it was highly likely and probable that final orders by way of an injunction would be sought and ordered to permanently restrain Patricks from committing a breach of Section 298K(i)(c) such that the maritime workers would be reinstated.
(vi) That there was a high probability of the Patricks workers being reinstated and the Minister knew that the seventy six trainees, including the two applicants, had either left jobs or given up business opportunities, or in the alternative, sought discharge from the armed services to join the non union labour work and thus suffered loss [sic] wages, salaries, income and financial loss.
9. In the premises the Minister is guilty of the tort of misfeasance in public office as he knew or ought to have known that:-
(i) He was acting beyond his constitutional powers.
(ii) He was contravening Commonwealth laws.
(iii) In the alternative, conspiring to commit an unlawful act as particularised above in contravention of a Commonwealth law.
(iv) That the Minister’s actions were beyond power and involved the foreseeable risk of harm being financial losses suffered by the trainees and the two applicants for which he is liable.
10. Alternatively, the Minister was a party to a conspiracy, being an agreement between he and Mr.Corrigan for and on behalf of the Patricks group to breach Section 298K(i)(c) with the intent of causing injury to the terminated workers of Patricks Stevedores No. 1 Pty.Limited, Patrick Stevedores No. 2 Pty.Limited, Patrick Stevedores No. 3 Pty.Limited, National Stevedores of Tasmania Pty.Limited directly which was outside his ministerial power and had the foreseeable consequence of causing damage to the applicants.
11. On or about March 1998 instructing an accountancy firm, namely Price Waterhouse to cost redundancy packages for dismissed Patrick Stevedores employees.
12. Publicly stating on or about the 1st of April 1998 that the Commonwealth could not prevent Patrick Stevedores from sacking its entire workforce when the Minister knew or ought to have known that such an action by Patrick Stevedores was illegal.
13. On the 7th of April 1998 the Minister held a press conference where he disclosed that there had hardly been a day that had gone by when the Minister had not discussed the range of options available to the Patrick employers when the Minister knew that Patricks actions in sackings [sic] its workforce were illegal.
14. In the premises the applicants plead in the alternative that the Minister is liable to them for the tort of misfeasance in public office in respect of the loss and damage suffered as particularised below. In the alternative, the Commonwealth of Australia.”
246 It is regrettable that a pleading of misfeasance in public office should be couched in such terms. The paragraphs set out above are confusing, and shed little light upon the applicants’ claim against the Minister.
247 After setting out what was said to have been agreed between Messrs Reith and Corrigan at various meetings, and ascribing to the Minister an awareness of certain events which were said to have been likely to take place, it is pleaded that Messrs Reith and Corrigan conspired to contravene s 298K of the Workplace Relations Act 1996 (Cth) or, in the alternative, that someone, presumably the Minister, acted in complicity in the contravention of an unspecified Commonwealth law. It is also pleaded that the Minister, in assisting Patricks and Mr Corrigan, contravened s 298L of the Workplace Relations Act 1996 in ways that are there set out and that the Minister thereby acted beyond power and did so in a way which was intended to cause harm to those employees of Patricks Stevedores who were members of the Maritime Union of Australia.
248 The Minister’s acts were said to have been done with “reckless indifference” to the applicants and other trainees, and involved the “foreseeable risk” of harm to them. After setting out what was said to have been foreseeable, it is pleaded that the Minister is “guilty” of the tort of misfeasance in public office as he knew, or ought to have known, that he was acting beyond his constitutional powers, that he was contravening Commonwealth laws, that he was conspiring to commit an unlawful act and that his actions were beyond power and involved the foreseeable risk of harm to the applicants and the other trainees “for which he is liable”.
249 It is then contended, in the alternative, that the Minister was a party to a conspiracy with Mr Corrigan to breach s 298K(i)(c) with the intent of causing injury to the terminated workers of the various Patrick Stevedores companies. Pars 11, 12 and 13 describe things said or done by the Minister in March and April of 1998 and par 14 pleads that “in the premises”, and “in the alternative” the Minister is liable to the applicants for the tort of misfeasance in public office in respect of the loss and damage suffered “as particularised below”. The reference to the loss and damage so particularised may be a reference to what appears at pp 89-90 of the amended statement of claim, though this is not made clear.
250 The pleading concludes with the obscure reference to an “alternative”, namely that the Commonwealth of Australia may be thought to be a party to the claim of misfeasance in public office brought against the Minister, though just how that claim is put against the Commonwealth of Australia is not explained. Presumably it is a claim based upon vicarious liability, though unless there is at least de facto authority in the Minister to do that which he had done, there will ordinarily only be personal liability on his part: James v The Commonwealth (supra) at 359-60 per Dixon J; Racz v Home Office (supra). Dowsett J in this Court seemed to assume, though he was not required to decide, that the Crown would be vicariously liable for the tort of misfeasance in public office if committed by a Minister: see SITA Qld Pty Ltd v Queensland (1999) 164 ALR 18 at 35
251 It was accepted by the parties in Mengel that the Northern Territory would be vicariously liable if the Crown employees in that case were found to have committed the tort of misfeasance in public office. Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ at 328–9 commented on this as follows:
“The Mengels commenced proceedings in the Supreme Court of the Northern Territory claiming damages against the Northern Territory (the Territory) and, also, against the Inspectors. For the purposes of this appeal, the claim can be described as one based on unauthorised acts of the Inspectors. This notwithstanding, the Territory accepts that, if there is any liability on the part of the Inspectors, it is vicariously liable to the Mengels. Presumably, the Territory takes the view that there was de facto authority for the acts in question.” (footnotes omitted)
252 The majority also stated (at 347):
“So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability.” (footnotes omitted)
253 Whether the Crown in right of the Commonwealth can be sued vicariously for the tort of misfeasance in public office where committed by a Minister might depend on whether a Minister can be classified as an employee of the Crown (as discussed previously) and the extent to which he can be said to exercise an “independent discretion”. Moreover, as misfeasance in public office is an intentional tort, it is unlikely that a Minister would have de facto authority to perform any acts constituting this tort, even if he could be considered to be an employee of the Crown.
254 These are issues which cannot, however, be resolved in a summary manner. However unlikely the prospect of substantiating this claim might be, having regard to the difficulties which it raises, there are arguably ways in which a claim against the Commonwealth for this tort might be able to be pursued, if properly pleaded, and presented.
255 Irrespective of the merits of any claim which the applicants might be able to maintain against the Minister arising out of some of the facts set out in this pleading, it is so poorly expressed, and so confusing, that it would be embarrassing to require any defence to be made in relation to it.
256 Beyond that point, however, it is also clear that some of the allegations made are incapable of giving rise to liability for the tort which is sought to be pleaded. Whatever view may be taken of the requisite state of mind on the part of the person said to have committed this tort, it is not sufficient to plead that the Minister ought to have known that he was exceeding his powers or contravening designated Commonwealth laws: Northern Territory of Australia v Mengel (supra) at 345 and 347-8. Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ, in a joint judgment, held that the elements of the tort of misfeasance in public office are the infliction of damage and either an intention, as the actuating motive, to inflict damage or the performance of an act which the public officer knows is beyond power and which involves a foreseeable risk of harm. See generally Elliott v Seymour (supra) at pars 100-102 per Ryan J.
257 At the very least, it must be pleaded that the Minister has recklessly disregarded the means of ascertaining the extent of his or her power – see Mengel at 347, and not that he has merely acted with “reckless indifference” to the applicants, as pleaded. Mere negligence in failing to appreciate that the Minister is exceeding his powers is not sufficient for this tort. The confusing interplay between the tort which is sought to be pleaded and elements of other torts which have been incorporated into these pleadings, renders it appropriate to strike out in their entirety all of the allegations of misfeasance in public office. These allegations may, however, be repleaded. It is not clear, beyond argument, as it seems to me to be in relation to the Commonwealth’s liability for conspiracy, that neither the Minister, nor the Commonwealth, may be liable to the applicants for misfeasance in public office. The case against the Commonwealth seems, however, to be fraught with particular difficulty.
The claims in negligence
258 The applicants seek to plead several claims in negligence against various respondents. The first such claim is brought against what is described as Patrick Stevedores Group and Chris Corrigan. It is set out at pp 76-80 of the amended statement of claim.
259 The facts which are pleaded to make good this cause of action are in substance as follows:
· The agreement on 15 October 1997 between Corrigan, Wells and Kilfoyle to the effect that they would supply the Patricks groups with non-union labour who would be trained in Dubai to replace union labour.
· The reduction of that agreement to writing.
· The fact that Corrigan was acting on behalf of the Patricks group of companies, and Wells and Kilfoyle were acting on behalf of the first and second respondents.
260 From these three facts the following paragraph is pleaded:
“5. In the circumstances the Patricks group of companies either jointly or severally, or in the alternative, Corrigan for himself owed a non delegatable [sic] duty of care to the applicants and other trainees.”
261 It goes without saying that none of the facts pleaded in the paragraphs immediately preceding this conclusory assertion come remotely close to establishing the material facts from which a duty of care owed by any of the Patricks entities to the applicants could be demonstrated. The absence of the necessary material facts is not cured by what purport to be “particulars” of this “non delegatable [sic] duty of care” which are set out beneath the paragraph in which that duty of care is asserted. However flexible a view may now be taken of pleadings in modern commercial litigation it remains true, in my opinion, that particulars cannot cure fundamental defects in pleading. Even if they could, the particulars which are provided do not contain material facts from which the existence of the duty of care which is asserted could be demonstrated to exist.
262 After setting out these “particulars” the applicants seek to plead again the basis for their claim that the Patricks group of companies and Mr Corrigan owed them a “non delegatable [sic] duty of care”. That pleading is as follows (at p 78):
“6. In the circumstances the Patricks group of companies either jointly and/or severally or in the alternative Chris Corrigan owed a non delegatable [sic] duty of care either as head contractor or employer by virtue of those matters pleaded aforesaid breached that duty and were negligent either jointly or severally or in the alternative, Christopher Corrigan by himself.”
263 No facts are pleaded to support the characterisation of the Patricks groups of companies, or in the alternative Chris Corrigan, as “head contractor”. No facts are pleaded to support the assertion that any of the respondents against whom this claim of negligence is made were “employers” of the applicants. Manifestly, on the other facts as pleaded, they were not.
264 There then follows a series of what are termed “particulars of negligence”. Many of these particulars are predicated upon the erroneous assumption that facts have been pleaded which demonstrate the existence of an employer/employee relationship between the Lang respondents, and the applicants. Some of these particulars of negligence really are quite extraordinary. For example, particular (ix) at p 79 of the amended statement of claim reads as follows:
“(ix) Negligently permitting Wells and Kilfoyle, either for themselves or for and on behalf of Fynwest Pty.Limited and CTMS Limited to represent that the applicants would have a three year position with options to renew every three years and further a job for life when the Patricks group of companies either jointly or severally and Corrigan knew or ought to have known that such a representation was untrue or in the alternative, was not based on any reasonable grounds.”
265 Precisely how a non employer is said to have a duty to prevent an entirely different entity, which is the relevant employer, from making false representations to its employees is not anywhere spelt out.
266 Having set out these particulars of negligence, the applicants conclude by pleading that the Patricks group of companies either jointly or severally or, in the alternative, Chris Corrigan were negligent such that the applicants “have suffered severe injury loss and damage” as particularised below. No facts are pleaded which are capable of giving rise to a conclusion that any negligence on the part of the designated respondents was causally related to the loss or damage which presumably is that referred to at pp 89-90 of the amended statement of claim. The applicants contend that there is no obligation upon them to plead any such facts. The authorities do not support that contention: Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (supra) per French J; Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (supra).
267 The applicants then plead what purports to be a claim in negligence against the Commonwealth. Par 1 of that claim is set out at p 80 of the amended statement of claim:
“1. At all material times departmental officers of the Commonwealth, the Minister and the Commonwealth of Australia owed a duty of care to the applicants to ensure that negligent acts weren’t committed by servants or agents of the Commonwealth in the performance of their duties.”
268 This is nothing more than a conclusory pleading without any material facts being set out to establish the existence of the duty of care for which the applicants contend. No facts which establish any relationship of proximity or any foreseeability, reasonable or otherwise, are pleaded.
269 After setting out certain matters that the Commonwealth “knew or ought to have known” the pleading continues:
4. As a result of the matters pleaded aforesaid the applicants were exposed to a risk of foreseeable injury loss and damage which they sustained as a result of the negligence of the Commonwealth.”
270 After setting out particulars of negligence which include, inter alia, failing to seek any or any legal advice from the Australian Government Solicitor or the Solicitor-General, the applicants plead that as a result of the negligence of the Commonwealth, its servants and/or its agents together with its departmental officers and the Minister for Industrial Relations, the applicants have suffered severe injury loss and damage as particularised below. Once again, no facts are pleaded to establish any causal connection between the negligence particularised and the loss or damage which is presumably that set out at pp 89-90 of the amended statement of claim.
271 In Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 167 Merkel J dealt with an application that a statement of claim be struck out. His Honour stated at par 11:
“However, there is a fundamental difficulty with the pleading in negligence in its present form which may, in part, have contributed to Esso’s view that the pleading is premised on an alleged right to supply. The difficulty initially relates to para 9 of the statement of claim which contains a bald allegation that Esso owed a duty of care to each of the applicants and each of the group members “in the design and operation of the Longford plant”. As has been pointed out on a number of occasions, the existence of a duty of care is closely related to the damage in respect of which it is said the alleged wrongdoer had a duty to take some step to avoid. A duty of care arises in negligence at common law only where there exists a relationship of proximity between the parties with respect to both the relevant class of act or omission and the relevant kind of damage.
In Sutherland Shire Council v Heyman (1984) 157 CLR 424 at 487 Brennan J said:
“…a postulated duty of care must be stated in reference to the kind of damage that the plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member…The question is always whether the defendant was under a duty to avoid or prevent that damage…”
See also Bryan v Maloney (1995) 182 CLR 609 at 617-619.”
272 Merkel J continued at par 14:
“Paragraph 9 of the statement of claim fails to take into account the significance of the above observations and offends the basic requirement of pleading the duty of care in a manner which connects it with the loss against which the plaintiff is to be protected. I do not accept the submission of the applicants that the nexus sufficiently appears in para 22. In the circumstances of the present case I am satisfied that para 9 ought to be struck out.”
273 His Honour continued at par 16:
“Esso’s submissions concerning para 13 are closely related to the deficiency, to which I have referred, in para 9. Paragraph 13 states that the interruption to supply was caused by the respondent’s negligence and breach of the duties referred to in para 9. In my view it is embarrassing to have both claims expressed in that general and overlapping form. Further, as para 9 has been struck out, to the extent that para 13 relies on para 9, it must also be struck out. In those circumstances it is unnecessary to determine whether the particulars are material allegations of fact or are appropriate for particulars. However, in my view more careful consideration should be given to that matter in a repleaded statement of claim as there is some substance in the allegation that, in a case such as the present, it may not be appropriate for all of the substantive allegations concerning breach of duty to be pleaded as mere particulars.”
274 The claims of negligence against all the respondents who have sought relief in the present proceedings against the applicants in respect of the amended statement of claim are so poorly drawn and inappropriately expressed that they should be struck out upon the basis that they do not disclose any cause of action against the designated respondents, and that it would be embarrassing to plead to them.
The claims made under the Act against Mr Corrigan personally
275 These claims are identified as being brought pursuant to s 75B, ss 82 and 87 of the Act. They are set out at pp 81-84 of the amended statement of claim.
276 In essence the applicants plead that Mr Corrigan met with Mr Wells between 6 August 1997 and 31 January 1998, and identify a series of eleven meetings between them. Having identified those meetings, they plead (at p 82):
“4. At all material times Christopher Corrigan aided, abetted, counselled, procured or was directly or indirectly knowingly concerned in the contraventions as pleaded against CTMS and Fynwest. In the alternative, his actions amounted to a conspiracy with the others being Kilfoyle, Wells, Fynwest and CTMS Limited to effect the said contraventions.”
277 This is an unsatisfactory pleading. It is not made clear which of the many contraventions previously alleged against the first and second respondents are those to which Mr Corrigan is said to have been party. Do they include all of the claims previously made? Do they include the claims based upon silence on the part of the first and second respondents? As to the alternative claim of conspiracy, to which of the many different conspiracies previously pleaded is Mr Corrigan said to have been party? Is the conspiracy to which reference is made a common law conspiracy to contravene the provisions of the Act, or is it a conspiracy under s 75B(1)(d) of the Act?
278 The particulars set out at pp 83-4 are less than helpful. They identify things said and done by Mr Corrigan, including his having entered into various agreements with Messrs Wells and Kilfoyle, without clarifying precisely which contraventions of the Act is it said that Mr Corrigan has committed. The attempt to replead the pleading of reliance previously made against the first and second respondents does not assist in clarifying the case sought to be made against Mr Corrigan.
279 It was submitted by his counsel that Mr Corrigan was entitled (along with the other Lang respondents) to invoke the shield which applied to the Commonwealth pursuant to s 2A of the Act in relation to the claims made against the Lang respondents under the Act. I am unable to accept that submission. Even if it be the case that the Lang respondents, acting through the medium of Mr Corrigan, were acting in concert with Mr Reith in implementing the agreement pleaded in the amended statement of claim, I can see no reason why the immunity of the Commonwealth under the Act (and arguably that of Mr Reith) should extend to those respondents: Woodlands v Permanent Trustee Company (1996) 68 FCR 213 at 231. I would not uphold this particular submission on behalf of the Lang respondents. I will return to this point when I deal later in these reasons for judgment with the claim by the NFF respondents to shelter under the statutory immunity under the Act which applies to the Commonwealth of Australia.
The claims made under the Act against Mr Reith personally
280 These claims suffer from the same deficiencies as do the claims brought against Mr Corrigan. After identifying a series of meetings said to have been attended by the Minister or his departmental officers and representatives of the Lang respondents, it is pleaded that the Minister was aware of certain facts which are described. Having identified what the Minister is said to have known, the applicants plead that he was guilty of a contravention of s 75B of the Act by reason of his involvement in contraventions of ss 51A, 52 and 53B committed by the first and second respondents, as pleaded earlier.
281 The particulars of the Minister’s liability under s 75B (see p 86) include his having “approved” of the conduct of the first and second respondents, and of the Patricks group and Corrigan and his having agreed:
“(ii) To adopt an interventionist approach on behalf of the Government.
(iii) To establish a team to counter the threat of industrial action by the Maritime Union of Australia.
(iv) To organise meetings with the Prime Minister The Right Honourable John Howard and the Chief Executive Officers of P & O, namely Mr.Hein and Patrick Stevedore’s Mr.Corrigan.
(v) To procure the consent of the Prime Minister to approve the allocation of an initial budget of two million dollars to set up and operate a team and to further establish a working party to approve further funds to assist in the interventionist approach.
(vi) On or about March 1998 instructing an accountancy firm, namely Price Waterhouse to cost redundancy packages for dismissed Patrick Stevedores employees.”
282 The applicants then plead that “in the premises” the Minister is liable pursuant to s 75B(1)(a), (b), (c) and (d), and replead the matters of reliance for the purposes of s 82 and the injury, loss and damage “as pleaded below”.
283 To describe this as scatter gun approach, lacking in precision and failing to achieve any of the basic objectives of sound pleading would not be inaccurate.
284 In any event, the claims brought under the Act against Mr Reith in his capacity as Minister for Industrial Relations seem to me to suffer from an even more fundamental defect.
285 Section 2A of the Act provides that the Act binds the Crown in right of the Commonwealth in so far as it carries on a business, either directly or by an authority of the Commonwealth. It is not suggested on behalf of the applicants that the Crown in right of the Commonwealth was, relevantly, carrying on any such business, and s 2C of the Act seems to confirm that whatever allegations are made against the Commonwealth, they do not include its having been engaged in doing so. No trading activities of the Commonwealth are said to lie at the heart of the claims made against it, its Ministers, servants or agents. It follows, as counsel for the applicants properly conceded, that the Commonwealth of Australia is immune from any claims under the Act. None are pleaded against it.
286 The claims made under the Act against Mr Reith cannot be separated advanced from the allegations made generally against the Commonwealth and its Ministers. Mr Reith’s liability is said to be derivative, pursuant to s 75B of the Act. Whatever he did, however, is pleaded as having been done with the imprimatur of the Commonwealth. In some cases, it is pleaded to have been done with the approval of the Prime Minister, who is not named as a respondent to those proceedings, but who is identified in the pleadings as an active participant in some of the matters alleged against Mr Reith. It is not pleaded that Mr Reith went off on a frolic of his own, but rather that he was implementing Government policy. In these circumstances he is, in my opinion, immune from suit under the provisions of the Act. In Woodlands v Permanent Trustee Company (supra) at 230 Wilcox, Burchett and Olney JJ stated:
“… the immunity that attaches to the Crown itself, from the effect of a statute making unlawful a particular act, extends also to persons retained by the Crown to perform the act, whatever the precise nature of the relationship between the Crown and them. The rationale, no doubt, is that the Crown acts through servants and agents. It would make a mockery of Crown immunity if servants and agents of the Crown were bound by the statute, although performing the very act they were retained to perform and in relation to which the Crown itself was immune.”
See also Thomson Publications (Australia) Pty Ltd v Trade Practices Commission (1979) 40 FLR 257 at 275.
287 These principles, in my view, serve to render Mr Reith immune from liability under the Act.
The claims made under the Act against Messrs McGouchie, Houlihan and Ferguson personally
288 It is unnecessary to repeat what has been said about the deficiencies of the pleading in relation to Messrs Corrigan and Reith personally. The same deficiencies extend to the pleading against these respondents. Having identified various matters of which “at all material times” Messrs Houlihan, McGouchie and Ferguson “were aware” and “agreed” it is asserted in a conclusory way that those respondents contravened the provisions of s 75B of the Act and thereby aided, abetted, counselled, procured or were “directly, indirectly knowingly concerned” and conspired to contravene the provisions of Pt V of the Act as contravened by the first and second respondents, contrary to ss 51A, 52 and 53B of the Act.
289 As is evident throughout, no conduct on the part of these respondents is isolated and identified which is in any way adequate to give rise to this allegation. The allegation, as pleaded, should be struck out.
290 I am not, however, persuaded that any of the NFF respondents, including in particular Messrs Ferguson, Houlihan and McGouchie, are entitled to take advantage of the shield of immunity which extends to the tenth and eleventh respondents in relation to the claims brought against Mr Reith under the Act. The fact that the Commonwealth is immune from liability under the Act, and that the NFF respondents are said to have been acting in concert with the Commonwealth, does not, in my view, extend the operation of the statutory shield to those respondents.
291 In Wirral Estates Limited v Shaw [1932] 2 KB 247 the issue was whether Crown immunity from legislation encompassing the rights of lessors of dwelling houses applied also to the purchaser from the Crown of tenanted premises. The Court of Appeal held that it did not. In Woodlands v Permanent Trustee Company (supra), Wirral was said to evidence a disposition to confine Crown immunity to cases where the interests of the Crown would be directly affected by the application of the relevant legislation. The question whether Crown immunity attaches to a person who is not “the Crown” in respect of a transaction to which the Crown is not a party, is to be determined by considering whether the legislation would, if applied to that person, “significantly prejudice the Crown; for example, by restricting actions it would otherwise be free to undertake or diminishing the value of its property”. See also New South Wales Bar Association v Forbes Macfie Hansen Pty Ltd (1988) 18 FCR 379 at 381 per Einfeld J.
292 I do not accept that holding the NFF respondents (or the Lang respondents) liable under the provisions of Pt V of the Act would necessarily have either effect upon the Commonwealth. Alternatively, it is at least arguable that such would not be the case.
293 The fact that the NFF respondents (and the Lang respondents) had the support of the Commonwealth, if that be assumed, does not suggest that requiring them to pay compensation to the applicant for any wrong done under the Act would, in any relevant sense, “significantly” prejudice the Crown. I would reject the claim by the NFF respondents (and that of the Lang respondents) that they are unarguably entitled to shelter under the Crown immunity which protects both the tenth and eleventh respondents from any liability under the Act.
Loss and damage
294 Included in the loss and damage particularised is physical and psychological injury in the form of post traumatic stress disorder and a range of other matters which are set out seriatim at pp 89-90 of the amended statement of claim. Some of those heads of damage may not be available in respect of the claims previously pleaded. It is not necessary, however, to determine this matter finally at this stage and I would not prevent the applicants from pleading those heads of damages, provided the pleadings are both clear and precise.
The application for a stay
295 It was submitted on behalf of the Lang respondents that I should stay the proceedings brought against those respondents in so far as they depend upon claims made against the first to fourth respondents arising under the Act from representations said to have been made outside of Australia. Such claims require the consent in writing of the relevant Minister (presumably the Attorney-General) before they may be permitted to proceed – see s 5(3) of the Act. I reject that submission. The relevant consent may, in my opinion, be sought at a later stage in the proceedings. If refused, it might render this aspect of those proceedings at an end. Until that matter has been resolved, however, there is no basis for preventing the applicants from at least pleading their case, subject to the need to make the relevant application for consent in a timely manner. I can see no reason why the applicants’ failure to have sought the requisite consent prior to filing their application, or prior to this hearing, should act as a bar to their repleading their claim.
Conclusion
296 In my view the amended statement of claim is so plainly defective in both its style and manner of pleading, and so confusing and poorly drafted, that it should be struck out in its entirety. I cannot see any sensible way in which any parts of that pleading can, or should, be salvaged. I reject the submission advanced on behalf of the applicants that the defects in their pleading can be rectified by the provision of further and better particulars. I adopt, with respect, the words of Jacobs J in Turner v The Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 at 97:
“Where the form of pleading is defective the Court can certainly strike it out entirely and is not bound to reframe it for the plaintiff’s benefit.”
297 I am, at this stage, prepared to grant liberty to the applicants to replead a number of their claims against the respondents, if they are minded to do so. They have, after all, only made two attempts to plead their causes of action. I am conscious of the fact that in Elliott v Seymour (supra) Ryan J observed, in the context of the applicant’s sixth attempt to plead his causes of action against the respondents:
“It was urged by Counsel for the respondents who opposed the grant of leave to further amend the statement of claim that the history of the applicant’s attempts to formulate the various causes of action discussed above strongly suggests that none of those causes of action can be made out. That view was taken by Gleeson CJ in Trau v University of Sydney (1989) 34 IR 466 where his Honour said, at 475:
“Even under the modern system of pleading, considerations of form and substance are often closely intertwined. If one sees that a plaintiff’s lawyers are experiencing extreme difficulty in formulating with clarity and particularity their client’s cause of action then that is often a very good indication that there is no cause of action. The history of the present matter creates the strong impression that such a problem exists, compounded by an additional difficulty created by a need to manoeuvre around problems concerning periods of limitation.”
It will be apparent from the examination which I have already undertaken of the causes of action which the applicant’s advisers have sought to formulate in various parts of the statement of claim that I do not consider that it is impossible properly to plead all of those causes of action.”
298 The new statement of claim should be confined to the causes of action which I have found to be arguably available. It should be filed and served no later than 29 October 1999, which I consider to be a reasonable time within which to formulate a properly drawn statement of claim in a case such as this.
299 I would not permit any claim under the Act to be brought against the eleventh respondent, Mr Reith. It seems to me that he falls plainly within the immunity of the Commonwealth under s 2A in that regard. That is not the position so far as the Lang respondents or the NFF respondents are concerned. Their position is at least arguably different from that of the Minister and the claims made against them should not be dismissed on a summary basis by reason of their claimed immunity at this stage.
300 Nor would I permit any common law conspiracy claims to be pleaded against any respondent in so far as they encompass the very matters which are said to give rise to liability under the provisions of the Act. In my view, the statutory conspiracy in s 75B(1)(d) covers the field so far as conspiracy to contravene the Act is concerned. This proposition does not, in my view, admit of any contrary argument which is tenable.
301 I would not permit the applicants to proceed against the Commonwealth of Australia for the tort of conspiracy. I cannot see how the Commonwealth can be said to be liable directly, or vicariously, for any such tort.
302 The applicants must pay the respondents’ costs of and incidental to each of the motions brought before the Court. Notwithstanding the forceful submissions on behalf of those respondents who sought costs on an indemnity or solicitor/client basis, the general rule that costs are awarded on a party and party basis should be followed.
I certify that the preceding three hundred and two (302) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. |
Associate:
Dated:
| Counsel for the Applicants: | Mr D Baran |
| | |
| Solicitors for the Applicants: | Dorrough Smart |
| | |
| Counsel for the Seventh to Ninth Respondents, and Twelfth to Twenty-Seventh Respondents as named in the amended statement of claim: | Mr AC Archibald QC with Mr RM Peters |
| | |
| Solicitors for the Seventh to Ninth Respondents and Twelfth to Twenty-Seventh Respondents as named in the amended statement of claim: | Arnold Bloch Leibler |
| | |
| Counsel for the Fifth, Sixth and Twenty-Eighth to Thirty-Third Respondents as named in the amended statement of claim: | Mr PJ Jopling QC with Mr JL Bourke |
| | |
| Solicitors for the Fifth, Sixth and Twenty-Eighth to Thirty-Third Respondents as named in the amended statement of claim: | Minter Ellison |
| | |
| Counsel for the Tenth and Eleventh Respondents: | Mr G Pagone QC with Mr N Lucarelli |
| | |
| Solicitor for the Tenth and Eleventh Respondents: | Australian Government Solicitor |
| | |
| Counsel for the First, Second, Third and Fourth Respondents: | No appearance |
| | |
| Solicitor for the First, Second, Third and Fourth Respondents: | No appearance |
| | |
| Dates of Hearing: | 4 and 5 March 1999 |
| | |
| Date of Judgment: | 13 August 1999 |
