FEDERAL COURT OF AUSTRALIA

McKellar v Container Terminal Management Services Ltd (No 2)

[2000] FCA 1608

PRACTICE AND PROCEDURE – pleadings – application for summary dismissal of proceeding pursuant to Federal Court Rules, O 20 r 2 – whether further amended statement of claim discloses reasonable cause of action – whether proceeding frivolous or vexatious.

PRACTICE AND PROCEDURE – application to strike out further amended statement of claim pursuant to Federal Court Rules, O 11 r 16 – whether further amended statement of claim discloses reasonable cause of action – whether fails to plead material facts – whether pleading has a tendency to cause prejudice or embarrassment – whether leave to replead should be granted.

TRADE PRACTICES – Trade Practices Act 1974 (Cth) – ss 52, 53B, 75B – whether allegations adequately pleaded – whether adequate material facts pleaded.

TORT – negligence – duty of care – economic loss – Stevens v Brodribb Sawmilling Pty Ltd (1986) 160 CLR 16 - Perre v Apand Pty Ltd (1999) 198 CLR 180 – whether adequate material facts pleaded – whether claim misconceived and untenable.

Trade Practices Act 1974 (Cth) ss 52, 53B and 75B

Federal Court Rules O 11 r 16, O 20 r 2

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 referred to

Batten v CTMS Ltd [1999] FCA 1576 considered

Batten v CTMS Ltd [2000] FCA 915 considered

McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 417-421, 461 referred to

Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 77 FCR 456 referred to

Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 at 95 referred to

Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 considered

Perre v Apand Pty Ltd (1999) 198 CLR 180 at 193-194, 202, 217, 218, 253, 254, 300-301, 325 considered

Pyrenees Shire Council v Day (1998) 192 CLR 330 at 419-420 referred to

Dey v Victorian Railways Commissioners (1949) 78 CLR 62 referred to

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

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99 referred to

Sibir v Glanville [2000] FCA 1108 referred to

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

Council for the City of the Gold Coast v Pioneer Concrete (Qld) Ltd (1998) 157 ALR 135 referred to

Croker v Philips Electronics Australia Limited [2000] FCA 991 referred to

Elliott v Seymour [1999] FCA 976 referred to

Elliott v Seymour (No 2) [2000] FCA 694 referred to

ANDREW McKELLAR and ANOR v CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED and ORS

VG 555 of 1998

WEINBERG J

10 NOVEMBER 2000

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application against the tenth and eleventh respondents be dismissed.

2.                  The applicants’ claims against the seventh to ninth, twelfth to twenty-seventh, and thirty-fourth respondents, and against the fifth, sixth, twenty-eighth, and thirtieth to thirty-third respondents be struck out.

3.                  The applicants be given leave to file and serve a second further amended statement of claim against the seventh to ninth, twelfth to twenty-seventh, and thirty-fourth  respondents, and against the fifth, sixth, twenty-eighth, and thirtieth to thirty-third respondents, limited to claims brought under the Trade Practices Act 1974 (Cth), by 31 January 2001.

4.                  The respondents, having succeeded on each of the motions before the Court, file and serve by 24 November 2000 a brief outline of submissions in relation to any orders for costs which should be made arising out of these orders.

5.                  The applicants file and serve by 8 December 2000 a brief outline of submissions in response.

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

REASONS FOR JUDGMENT

1                     This proceeding arises out of the events which occurred on the Australian waterfront during 1998.  It concerns the recruitment and training, in late 1997 and early 1998, of a non-union workforce for the Australian waterfront industry.  An earlier proceeding arising out of the same events was dealt with by the High Court – see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1.  Other proceedings are currently before Kiefel J in this Court – see Batten v CTMS Ltd [1999] FCA 1576, and Batten v CTMS Ltd [2000] FCA 915.

2                     On 13 August 1999 I ordered that the applicants’ amended statement of claim, which had been filed on 24 December 1998, be struck out – see McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409.  I ordered further that the applicants be given leave to file and serve a further amended statement of claim.  This they did, on 9 November 1999.  That further amended statement of claim is now the subject of three separate motions, each of which is brought by a particular “set” of respondents.  Each motion seeks to have the proceeding against that particular set of respondents stayed or dismissed.  Alternatively, each motion seeks to have the further amended statement of claim struck out, either in whole or in part.

3                     For the sake of convenience I shall refer to the three sets of respondents who have moved for this relief in the following terms:

·                     the “Lang respondents” (the seventh to ninth, and twelfth to twenty-seventh, and thirty-fourth respondents);

·                     the “PCS respondents” (the fifth, sixth, twenty-eighth, and thirtieth to thirty-third respondents); and

·                     the “Commonwealth respondents” (the tenth and eleventh respondents).

4                     It should be noted that the applicants have adopted similar, but not identical, descriptions of the various sets of respondents in the further amended statement of claim.  For example, the Victorian Farmers Federation, which is said to be the twenty-ninth respondent, is referred as “a PCS respondent” rather than one of “the PCS respondents”, while the thirty-first, thirty-second and thirty-third respondents are described as “officers, employees, servants or agents of the fifth, sixth, twenty-eighth and twenty-ninth respondents”.  The Victorian Farmers Federation has not been joined as a party to the application.  However, the National Farmers Federation, which is not a legal person, and cannot be sued as such, is named as a respondent in the application.  This is a difficulty to which I adverted in my earlier judgment.  It has not yet been rectified.

5                     The background to the present proceeding is set out in the judgment of North J in Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 77 FCR 456.  In my earlier judgment in this matter I referred to his Honour’s summary, at 458-9, of the events which gave rise to this proceeding.  My reasons for judgment in relation to the three motions presently before the Court should be read in conjunction with that summary, and with my earlier judgment. 

The further amended statement of claim

6                     The further amended statement of claim which is the subject of the motions before the Court differs in several important respects from the amended statement of claim which I previously ordered be struck out.  For one thing, it pleads fewer causes of action.  Whereas the amended statement of claim alleged various contraventions of the Trade Practices Act 1974 (Cth) (“the Act”), breach of contract, at least two forms of conspiracy, misfeasance in public office, and a claim in negligence, the further amended statement of claim alleges only several contraventions of the Act, and a somewhat oddly formulated claim in negligence.  The allegations of breach of contract, conspiracy, and misfeasance in public office are no longer pursued. 

7                     In general, the new pleading represents an improvement on the pleading which it replaced.  It is less prolix, and somewhat easier to follow than the earlier pleading.  That does not necessarily mean, however, that it meets the requirements of O 11 of the Federal Court Rules (“the Rules”).  In order to determine whether those requirements are satisfied, it is first necessary to summarise, albeit briefly, the nature of applicants’ case, as presently formulated.

8                     Put simply, the principal claim advanced by the applicants is that they were induced by misleading or deceptive conduct on the part of the first and second respondents, Container Terminal Management Services Limited (“CTMS”) and Fynwest Pty Ltd (“Fynwest”), to enter into contracts of employment with those respondents.  The misleading or deceptive conduct is said to consist of a series of misrepresentations allegedly made by or on behalf of CTMS and Fynwest in or about November and December 1997.  These misrepresentations are set out in the further amended statement of claim, though not always in a manner which is readily comprehensible.  They relate to the purpose for which the applicants were recruited, the nature of the training which they were expected to undergo, and the salary, conditions and tenure which they would receive. 

9                     The applicants claim that they were misled by the failure of CTMS and Fynwest to apprise them of the fact that they were being recruited in order to take over the jobs of members of the Maritime Union of Australia (“the MUA”) whose employment was to be terminated, en masse, by the Lang respondents.  The applicants rely upon the silence of CTMS and Fynwest, in circumstances where they were under a duty to reveal relevant facts, as constituting the misleading or deceptive conduct – see Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 at 95. 

10                  The applicants contend that, had they known why they were being recruited, they would not have given up their previous jobs in order to take up new contracts of employment.  The applicants contend further that when they were subsequently sacked, after the members of the MUA had been reinstated, they suffered loss and damage for which they should be compensated.

11                  Had the applicants confined their claims to those brought against CTMS and Fynwest under ss 52 and 53B of the Act and those brought against Messrs Wells and Kilfoyle (the third and fourth respondents) under s 75B, there would be nothing out of the ordinary about this proceeding.  However, they have sought, no doubt for good reason, to include a series of claims against the other respondents to this proceeding.  The claims against the other respondents have led to the motions presently before the Court.  None of the first, second, third or fourth respondents has challenged the claims brought against them.

The claims made under the Act against the Lang respondents

12                  The applicants’ claims against the Lang respondents begin by alleging that a series of meetings took place in August, September and October 1997 between Messrs Wells and Kilfoyle and the ninth respondent, Mr Corrigan.  They say that following these meetings, on 15 October 1997, CTMS and Fynwest entered into an agreement with the Lang respondents (“the October agreement”) under which CTMS and Fynwest were expected to recruit and train ex-military and police personnel to replace the entire MUA workforce at Patrick Stevedores.  The arrangement was that the recruits would be trained in Dubai, and that the Lang respondents would meet the costs of their training. 

13                  The terms of the October agreement are summarised in the further amended statement of claim as follows:

“33.    That the first and second respondents were to represent to the trainees that they were employed by a Hong Kong company and that the project was backed by a South East Asian consortium for stevedore work throughout the Pacific Basin.

 34.      That the first and second respondents were to represent to the trainees that they would be working at various places in the Pacific Basin for salaries of $46,000 - $60,000 with strong job security and not to ever disclose the oral training and written training agreements to the trainees.”

14                  The applicants contend that from the October agreement it may be inferred that both CTMS and Fynwest were aware of the true purpose for which they were to be recruited and trained.  By reason of that knowledge CTMS and Fynwest engaged in misleading and deceptive conduct when they withheld this information from the applicants during the course of discussions in November and December 1997.  It is the silence on the part of CTMS and Fynwest, while under a duty to speak, which is said to form the basis of their alleged contraventions of ss 52 and 53B of the Act. 

15                  The applicants rely upon the October agreement as the basis of their claim against the Lang respondents.  They say that those respondents are liable, under s 75B of the Act, for the contraventions on the part of CTMS and Fynwest.  They claim that those respondents aided and abetted, counselled or procured, or were knowingly concerned in or party to, the contraventions by CTMS and Fynwest.  They contend that the Lang respondents were at all times aware of the fact that CTMS and Fynwest intended to withhold from the applicants information which it was their duty to disclose. 

16                  The applicants also formulate their case against the Lang respondents on an alternative basis.  They say that, when CTMS and Fynwest negotiated with them the terms of their employment, those companies acted as agents for the Lang respondents.  They claim, therefore, that the Lang respondents are themselves deemed to have made the representations which constitute the contravening conduct.  They rely primarily upon what is said to have been a deed of indemnity executed on 1 December 1997 between the thirty-fourth respondent and the second respondent as the basis for this agency – see pars 57-74 of the further amended statement of claim.  They invoke ss 84(1) and 84(2)(a) of the Act, which deal with the liability of a corporation for the acts of its servants or agents, in support of this variant of their claim.

The claims made under the Act against the PCS respondents

17                  The applicants’ claims against the PCS respondents are, in many respects, more straightforward than their claims against the Lang respondents.  They say that sometime late in January or early February 1998, CTMS and Fynwest entered into an agreement with the Lang respondents to the effect that the ex-military and police personnel recruited for training in Dubai would be employed at No 5 Webb Dock, in Melbourne.  The employer would be PCS Training Services Pty Ltd, the sixth respondent, one of the PCS respondents. 

18                  The applicants claim that the PCS respondents entered into a separate agreement with the Lang respondents that the trainees would be told nothing of the plans by the Lang respondents to sack the entire MUA workforce.  They say that they were only told that when their new employment commenced, it would be on terms that they would be offered a particular salary, three year contracts, and other benefits.  They allege that they were thereby induced, in contravention of ss 52 and 53B of the Act, to take up that employment with PCS Training Services Pty Ltd.  They say that the other PCS respondents are liable, by reason of the operation of s 75B of the Act, for any contravention of s 53B committed by PCS Training Services Pty Ltd. 

The claim in negligence against the Commonwealth, the Minister and the Lang respondents

19                  The applicants’ claim against the Commonwealth respondents is now restricted to a claim in negligence.  It is, however, pleaded in a somewhat unusual manner.  It is described in the heading which immediately precedes that part of the further amended statement of claim which contains the pleading in negligence as:

“Claim in negligence against the Lang respondents, the Commonwealth of Australia and the Minister for Industrial Relations as joint tort feasors pursuant to the principle in Stevens v Brodribb Sawmilling Company Pty Ltd (1985-1986) 160 CLR 16”.

20                  Paragraphs 219-261, which follow that heading, purport to plead causes of action in negligence against the Lang respondents, the Commonwealth and the Minister.  They do so first by setting out a series of meetings which are alleged to have taken place throughout 1997.  These meetings are said to have been attended by representatives of the Minister and one or more of the Lang respondents.  The applicants claim that this series of meetings resulted in the October agreement.  They say that the aim was to ensure that after the MUA workforce had been terminated, a non-union workforce would be available to take over work on the docks.  They say that it was agreed that whatever support and financial assistance was necessary to enable the creation of this non-union workforce would be provided by the Commonwealth.

21                  In pars 219-260 there are detailed references to many of the meetings described above, and to some of the discussions which are said to have taken place at those meetings.  Some of these paragraphs also endeavour to set out, albeit in a somewhat disjointed and less than coherent manner, the terms of the agreement ultimately arrived at.  For example, par 228 asserts:

“That the Commonwealth and the Minister would have to instigate a plan of political provocative action would have to come from the government and from outside the stevedoring industry.”

22                  In par 261 it is asserted that the Lang respondents, the Commonwealth and the Minister “had a right of control”, or alternatively “control”, over the training of the applicants in Dubai, over their subsequent employment at No 5 Webb Dock in Melbourne, and over their subsequent employment at Port Botany in Sydney.  No facts, apart from the meetings set out above, are pleaded in support of these allegations.

23                  In pars 262-5 it is alleged that it was reasonably foreseeable that once members of the MUA discovered that their employment had been terminated, and that they had been replaced by a non-union workforce, the applicants would be exposed to industrial action and to violence.  Indeed, the applicants go further.  They allege that it was reasonably foreseeable that once their employment had been terminated the members of the MUA would immediately institute proceedings for reinstatement under the Workplace Relations Act 1996 (Cth).  Moreover, it was reasonably foreseeable that reinstatement would be ordered, and that the applicants would find themselves out of a job.  This was, in fact, what occurred. 

24                  In paragraphs 266-271 the applicants formulate a series of variants of a duty of care which they claim was owed to them by the Commonwealth, the Minister and the Lang respondents.  This duty of care is described in different ways:

·                   “… to disclose to them that they were military trainees being trained in Dubai to return to Australian ports to replace terminated Maritime Union of Australia employees who were to be sacked on mass (sic) on 30 March 1998.” (par 266)

·                   “… to take reasonable steps to avoid exposing them to confrontationalist and violent exchanges between sacked MUA workers picketing outside No 5 Webb Dock and at Port Botany in New South Wales and the applicants.” (par 267)

·                   “… to take reasonable steps to ensure that when the labour supply agreements were terminated that the Lang Respondents were acting lawfully and not in contravention of section 298K(1)(a) of the Workplace Relations Act 1996 when terminating the labour supply agreements.” (par 268)

·                   “… to warn them of the true purpose of their employment and to disclose to them that they were to replace sacked MUA workers and not work in the Asia Pacific Basin for a foreign consortium.” (par 269)

·                   “… to prescribe a safe system of work …”  (par 270)

·                   “… to warn them of the termination of the labour supply agreements and that they were to be replacement of union labour at all times irrespective of which corporate entity was employing them.”  (par 271)

25                  In par 284 the applicants plead that there existed between the Commonwealth and the Minister and themselves “a proximity at law” which gave rise to each of the duties set out above. 

26                  In par 285 the applicants again formulate the duty of care said to have been owed to them by the Commonwealth and the Minister (though not, in this instance, by the Lang respondents):

“… to warn them of the likelihood that the termination of labour supply agreements was an act which contravened section 298K and L of the Workplace Relations Act 1996 (Commonwealth).”

27                  In par 286, the applicants plead:

“At all material times it was reasonably foreseeable that if the Minister and the Commonwealth funded, assisted and co-ordinated the Lang Respondents to employ non-union labour on the waterfront and terminate labour supply agreements such that the entire Lang Respondent workforce would lose their jobs that there would be instantaneous legal and industrial action with the foreseeable consequence that the applicants would ultimately have their employment terminated if the Maritime Union of Australia was successful in having their jobs reinstated.”

28                  Having pleaded in par 285 (and possibly par 286) matters said to give rise to a duty of care owed to the applicants by the Commonwealth and the Minister the applicants then, for no apparent reason, allege in par 287 a breach of that duty, not by the Commonwealth respondents, but by the Lang respondents:

“By reason of the material facts pleaded above the applicants plead that the Lang Respondents breached their duties of care to the applicants for which they have suffered serious injury, loss and damage.”

29                  There are, however, no “material facts pleaded above” which, if proved, could establish any breach of duty of care on the part of the Lang respondents.  This is symptomatic of the generally loose and ill conceived manner in which this pleading is drafted.

30                  There follow in pars 288 to 297 what are described as “Particulars of Negligence – the Lang Respondents”.  These particulars of negligence are expressed in terms of various failures on the part of the Lang respondents to warn the applicants of the impending sacking of the entire MUA workforce.  Notwithstanding the heading preceding these paragraphs, par 297 pleads, not that there was negligence on the part of the Lang respondents, or what constituted that negligence, but that having regard to various activities on the part of Mr Corrigan:

“… there existed a proximity between the Lang Respondents and the first and second applicants such that a duty of care arose as pleaded above which was breached.” 

31                  In other words, while par 297 appears under the heading “Particulars of Negligence – the Lang Respondents”, it seeks to raise, yet again, the existence of a duty of care, and not an allegation of breach of that duty.  Why it does so is not at all clear.

32                  I am in no doubt that the entire pleading in negligence is unsatisfactory, particularly in relation to the Commonwealth respondents.  No allegation of breach of duty whatever is made against either the Commonwealth or the Minister.  There are no particulars of negligence of any kind provided in relation to those respondents.  I can only assume that this was an oversight, since particulars of negligence are provided in relation to the Lang respondents.

33                  The pleading in negligence is wholly disjointed.  It fails to comply with a number of the requirements of O 11 of the Rules.  It does not state all material facts necessary to constitute a complete cause of action.  It pleads many facts which are not material, or at least not shown to be material.  It regularly confuses the functions to be served by pleadings with the functions to be served by particulars.

34                  The sufficiency of a pleading is judged first by reference to the necessary condition that it discloses a reasonable cause of action and second by reference to the requirement for sufficient particularity that the respondents know in advance the case they have to meet.  Although the modern tendency is against taking an unduly technical and pedantic approach to pleadings, it is fundamental that a pleading must clearly indicate what allegations are being made – see McKellar v Container Terminal Management Services Ltd (supra) at 417-421.

35                  It is one thing to say that a party is not required to formulate a claim as an elegant model of legal purity.  It is another to say that a pleading which is prolix, confused and disjointed, and which both omits to plead material facts, and pleads other facts which cannot be said to be material, can be allowed to stand.  Pleading imperfections can, in many cases, be cured by granting leave to replead.  Some defects are, however, more fundamental than this and cannot be overcome.  It is the respondents’ contention that the applicants’ claim in negligence is wholly misconceived and should be dismissed or struck out without the applicants being granted liberty to replead.  I shall deal now with that more fundamental contention.

36                  As noted above, the pleading describes the claim for negligence as falling within the principle in Stevens v Brodribb Sawmilling Company Pty Ltd (1985-1986) 160 CLR 16.  It is difficult to understand why that method of pleading has been adopted.

37                  In Stevens v Brodribb a sawmiller engaged a group of sniggers (or timber movers) to move felled trees to a loading zone.  The sawmiller also engaged a group of truckers to carry the trees from there to the mill.  Sniggers and truckers used their own vehicles, set their own hours of work, and were paid according to the volume of timber delivered to the mill.  They were not guaranteed work, and were free to seek other work if circumstances prevented them from working for the sawmiller.  No income tax instalments were deducted from their payments.  No control was exercised over the manner in which they performed their specific tasks.

38                  While a log was being manoeuvred onto a truck, a trucker was injured by the negligence of a snigger.  The High Court held that neither the trucker nor the snigger was an employee of the sawmiller.  It followed that the sawmiller was neither vicariously liable for the negligence of the snigger, nor personally liable to the trucker for breach of the specific duty of care owed by an employer to an employee. 

39                  A majority of the Court comprising Mason, Wilson, Brennan and Dawson JJ determined that the notion that a principal is liable for the negligence of an independent contractor on the basis that the activities he was engaged to perform were extra-hazardous did not form part of the common law of this country.  The Court as a whole accepted that even though the trucker was not an employee, the sawmiller owed a general common law duty to provide him with a safe system of work.  However, the Court held that, in the particular circumstances, the sawmiller was not in breach of that common law duty.

40                  The Commonwealth and the Minister, and the Lang respondents, submitted that the decision in Stevens v Brodribb is of no relevance to the claim of negligence brought by the applicants in this proceeding.  As will become apparent I agree entirely with that submission. 

41                  In Stevens v Brodribb the sawmiller had engaged independent contractors to do work which might just as readily have been done by employees.  There was plainly a risk to those independent contractors arising from the nature of the work which they had agreed to perform.  There was a need for the sawmiller to give directions as to where and when the work was to be done, and to co-ordinate the various tasks to be performed.  In those circumstances, it is scarcely surprising that the sawmiller was held to have had an obligation to provide a safe system of work notwithstanding that the injured party was not an employee.

42                  Those facts are far removed from the allegations pleaded in the proceeding before this Court. The applicants were recruited and trained by CTMS and Fynwest. They were employed initially by those companies.  They were later employed by PCS Training Services Pty Ltd.  There is nothing in the further amended statement of claim to suggest that any of the Commonwealth, the Minister or the Lang respondents, who are sued in negligence, were at any stage in a position even remotely analogous to that of the sawmiller in Stevens v Brodribb. 

43                  It is true that the applicants have pleaded, as an alternative to their primary claim, that CTMS and Fynwest recruited the applicants not on their own behalf, but as agents of the Lang respondents.  However, there are virtually no facts pleaded which could justify that conclusion.  At their highest the facts which are pleaded might show an agreement between CTMS and Fynwest and the Lang respondents that CTMS and Fynwest would recruit and train the applicants.  There are no facts pleaded which suggest that it was intended that the Lang respondents would be the applicants’ employer, or that they would closely supervise or control their actual working conditions.  It would follow that the Lang respondents cannot have been under any common law duty to provide the applicants with a safe system of work. 

44                  No facts are pleaded to support the suggestion that any of the Commonwealth, the Minister or the Lang respondents were in a position to co-ordinate the manner in which the applicants were to perform their work at the docks.  Nor are there any facts pleaded which suggest that any of those respondents were expected to undertake that role.  It was CTMS and Fynwest initially, and PCS Training Services Pty Ltd subsequently, who were the applicants’ employers.  It was those companies, and they alone, who were under a common law duty to provide a safe system of work.

45                  Even if one puts to one side the narrow (and misconceived) basis upon which the causes of action in negligence have been pleaded, the applicants can gain no comfort from relying upon the facts which they have alleged as forming the basis for a more general common law claim in negligence. 

46                  I turn first to the Commonwealth respondents.  It is alleged by the applicants that the Minister was aware that persons in their position were intended to be used as strike-breakers.  It is said that the Minister must, therefore, have been aware of what was likely to happen to the applicants when the members of the MUA discovered what was going on.  It is further contended that the Minister must have foreseen that the applicants would lose their jobs, and suffer serious economic loss.  It is at least implicit in the pleading that the Minister would have been aware that the applicants would have no knowledge of the fact that they were being recruited to replace the MUA stevedores, and that in the absence of any such knowledge they would be likely to take up the employment offered. 

47                  In Batten v CTMS Ltd [1999] FCA 1576 Kiefel J dealt with a representative action in which claims for negligence were brought against the Commonwealth and the Minister by group members who were, for all practical purposes, in similar positions to the applicants in the proceeding before me.  The Commonwealth and the Minister filed a motion under O 20 r 2 seeking to have those claims dismissed.  Kiefel J determined that they were entitled to that relief.

48                  After setting out the manner in which the cause of action in negligence was pleaded, her Honour observed at pars 35-37:

“35.     It is by reason of these facts that the Minister and the Commonwealth are said to have owed a duty of care to the group members “to take all reasonable steps” to inform them of the part they were to play in the “strategy”; of the truth about the representation; and what was necessary to allow them to make an informed decision.

36.       In the way in which it is pleaded, the obligation of the Minister and the Commonwealth to inform the group members is said to arise from knowledge on their part about what would happen to group members if they took up the offer or offers of employment.  The duty is, in effect, to warn them of such aspects of the transaction of which they did not know and which might deter them from entering into the engagement.  The pleading appears to me to attempt to establish the position of vulnerability on the part of the applicant, such as would found a duty to act to prevent economic harm:  see Perre v Apand Pty Ltd (1999) 198 CLR 180.

37.       The obligation to warn, or inform, is not pleaded as a duty arising because of what has otherwise been said, to correct or qualify the representations of the recruiters.  Indeed, a feature of this claim is that the duty is said to arise with respect to conduct on the part of others which was likely to produce loss or damage;  that is to say the Dubai representations, if not corrected, would have that result.  No case of duty arising by known reliance on the part of the group members on the Minister’s advice, nor some assumption of responsibility on his part such that they could reasonably be said to rely upon it, is pleaded (see Pyrenees Shire Council v Day (1998) CLR 192, 330).  In so far as there may be a shift away from categorising situations or the use of control mechanisms, such as proximity to found a duty of care, to an inquiry as to whether there is a sufficient and special relationship between the parties to require action on the part of one to avoid economic harm to the other (Perre v Apand Pty Ltd), such a case is not pleaded here.  What is pleaded is knowledge on the part of the Minister and the Commonwealth of the group members’ exposure to economic loss.  It remains the case that mere knowledge of the risk of such harm is not sufficient to give rise to a duty of care.  Moreover, the risks appreciated by a person, and to which a duty to act might relate, are those created by that person, not someone else.  The conduct said to give rise to the risk of economic loss to the Dubai Group members is not clearly pleaded.  A reference back to the implementation of the strategy, to the intention to fire and re-hire labour and the making of the representations is made.  Whatever duty may have arisen because of what was said about the employment to be undertaken and the position the group members were then placed in, which the Patrick companies, Fynwest or CTMS, may have been able to affect, the same causal connexion could not be said to arise with respect to the Minister’s antecedent conduct in encouraging the prior termination of others’ employment.”

49                  While it is true that the applicants in the proceeding before me have formulated their causes of action in negligence somewhat differently to the manner in which those claims were formulated in Batten, there are some similarities between the two pleadings.  Kiefel J’s observation in Batten that mere knowledge of the risk of harm is not sufficient to give rise to a duty of care on the part of the Commonwealth or the Minister, is particularly apposite to the pleading under consideration before me. 

50                  In Perre v Apand Pty Ltd (1999) 198 CLR 180, to which her Honour referred, the High Court restated the circumstances in which a duty of care will be found to exist in relation to a claim for pure economic loss.  The majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) concluded that the matters upon which the existence of a duty of care would depend would vary from case to case.  They might include foresight of the likelihood of harm, knowledge or means of knowledge of an ascertainable class of vulnerable persons who are unable to protect themselves from harm, the fact that implying a duty would not impair the legitimate pursuit by the defendant of its own commercial interest, and the fact that the damage flowed from the occurrence of activities within the defendant’s control. 

51                  Gleeson CJ observed, at 192, that bearing in mind the expansive application which has been given to the concept of reasonable foreseeability in relation to physical injury to person or property, a duty to avoid any reasonably foreseeable financial harm needs to be constrained by “some intelligible limits to keep the law of negligence within the bounds of common sense and practicality”.

52                  His Honour said at 193-4:

“The solution does not lie in what is sometimes described as the three-stage “test” said to have been formulated by Lord Bridge of Harwich in Caparo Industries Plc v Dickman [1990] 2 AC 605.  Lord Bridge never said it did.  He said it did not.  In the much quoted passage in his Lordship’s speech where he referred to the necessary ingredients of foreseeability, proximity, and a situation in which the court considers it fair, just and reasonable that the law should impose a duty, he immediately went on to say that “the concepts of proximity and fairness … are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope”.”

53                  Gummow J dealt with the matter in this way at 253:

“The question in the present case is whether the salient features of the matter give rise to a duty of care owed by Apand.  In determining whether the relationship is so close that the duty of care arises, attention is to be paid to the particular connections between the parties.  Hence what McHugh J has called the “inherent indeterminacy” of the law of negligence in relation to the recovery of damages for purely economic loss (Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 593).  There is no simple formula which can mask the necessity for examination of the particular facts.”

54                  His Honour continued at 254:

“I prefer the approach taken by Stephen J in Caltex Oil.  His Honour isolated a number of “salient features” which combined to constitute a sufficiently close relationship to give rise to a duty of care owed to Caltex for breach of which it might recover its purely economic loss (Caltex Oil Pty Ltd v The Dredge “Willemsted” (1976) 136 CLR 529).”

55                  Hayne J was critical of the three-stage test formulated in Caparo, and thought that as long as no unusual principle emerged, this area of the law should develop incrementally, by recognising factors giving rise to liability for pure economic loss.  His Honour observed at 300-301:

“… the search for a criterion or criteria which will identify a relationship between plaintiff and defendant as one that is sufficiently “proximate” to hold the defendant liable for pure economic loss sustained by the plaintiff because of the defendant’s negligence is attended by great difficulty.  And although the “relationship of proximity” may be a useful description of the result of the decision whether, in particular circumstances, the defendant owed a duty to the plaintiff not to cause pure economic loss, it is only in that sense that the relationship of proximity “remains the general conceptual determinant and the unifying theme of the categories of case in which the common law of negligence recognises the existence of a duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another.” (Stevens v Brodribb Sawmilling Pty Ltd (1986) 160 CLR 16 at 53, per Deane J).”

56                  Callinan J commented at 325:

“It should be made clear however that the determination of a claim for pure economic loss is not a merely discretionary matter: it requires the application of the principles stated in Caltex and the subsequent cases in this Court to the various factual situations as they arise in the courts.

And it must be accepted that this is an area of the law in which the courts should move incrementally and very cautiously indeed.  It is not yet possible to identify a bright line of demarcation between those cases of pure economic loss in which damages are recoverable and those in which they are not.  The law is still developing in the somewhat piecemeal fashion that Stephen J predicted in Caltex ….”

57                  The four judges who might loosely be termed “the majority” in Perre v Apand appear to have identified a wide range of factors as relevant in determining whether or not a duty of care should be found to exist in the circumstances of that case.  Their Honours refused to incorporate these factors within any rigid conceptual framework.  The advantages of flexibility associated with such an approach must, of course, be balanced against the high level of indeterminacy, and the scope for wide ranging discretion, which results from its adoption.

58                  Each of the three remaining members of the Court adopted a somewhat different approach to this question.  Gaudron J observed that foreseeability of injury is insufficient to found liability in cases involving pure economic loss.  Her Honour considered that as the law develops, various categories will come to be recognised as giving rise to liability.  One such category, liability for negligent misstatement, had already emerged.  However, that category had no application to the facts of Perre v Apand.  Another category, described by her Honour in broad terms as involving the protection of legal rights, was also emerging.  Her Honour formulated the principles as follows at 202:

“… where a person knows or ought to know that his or her acts or omissions may cause the loss or impairment of legal rights possessed, enjoyed or exercised by another, whether as an individual or as a member of a class, and that that latter person is in no position to protect his or her own interests, there is a relationship such that the law should impose a duty of care on the former to take reasonable steps to avoid a reasonable risk of economic loss resulting from the loss or impairment of those rights.”

59                  McHugh J was critical of both the three-stage test formulated in Caparo and of the protection of legal rights approach favoured by Gaudron J.  At the same time, his Honour had difficulty with the somewhat open-ended view favoured by the majority.  He reasoned, as he had in Pyrenees Shire Council v Day (1998) 192 CLR 330, that there had been a “demise of proximity as a unifying theme”.  His Honour’s solution to the need for a conceptual framework that would promote predicability and continuity and, at the same time, facilitate change in the law when needed, was met in the following way at 217:

“In my view, given the needs of practitioners and trial judges, the most helpful approach to the duty problem is first to ascertain whether the case comes within an established category.  If the answer is in the negative, the next question is, was the harm which the plaintiff suffered a reasonably foreseeable result of the defendant’s acts or omissions?  A negative answer will result in a finding of no duty.  But a positive answer invites further inquiry and an examination of analogous cases where the courts have held that a duty does or does not exist.  The law should be developed incrementally by reference to the reasons why the material facts in analogous cases did or did not found a duty and by reference to the few principles of general application that can be found in the duty cases.”  (footnotes omitted)

60                  His Honour continued at 218:

“In determining whether the defendant owed a duty of care to the plaintiff, the ultimate issue is always whether the defendant in pursuing a course of conduct that caused injury to the plaintiff, or failing to pursue a course of conduct which would have prevented injury to the plaintiff, should have had the interest or interests of the plaintiff in contemplation before he or she pursued or failed to pursue that course of conduct.  That issue applies whether the damage suffered is injury to person or tangible property or pure economic loss.  If the defendant should have had those interests in mind, the law will impose a duty of care.  If not, the law will not impose a duty.”  (footnotes omitted)

61                  Kirby J too adhered to the views which he had previously expressed in Pyrenees Shire Council v Day (supra) at 419-420.  His Honour made it plain that he favoured the adoption in this country of the three-stage test in Caparo.  The first stage under that test is the requirement that there be foreseeability of harm.  The second stage is that there be sufficient proximity between the parties.  If the plaintiff can overcome these two hurdles, then the Court will consider if the imposition of a duty of care would be “fair, just and reasonable”.

62                  At least one commentator has expressed the view, in the wake of Perre v Apand, that the law in this area is now in a state of disarray.  Certainly it is difficult to glean from the four separate and disparate tests propounded by the members of the High Court any definitive unifying principles. 

63                  There are, however, some indications of common ground in the judgments as to what might be regarded as “salient features” which will typically give rise to a duty of care in a case involving economic loss.  The concept of “proximity” appears to have been rejected as a single unifying theme by all except Kirby J.  Two factors seem to have been regarded by all members of the Court in Perre v Apand as fundamental – the vulnerability of the plaintiffs (being in favour of a duty), and the potential for indeterminacy (being against it).  Obviously other factors such as the existence, or otherwise, of a governing or persuasive precedent, the extent to which harm was foreseeable, and the view taken as to the legitimacy of the defendant’s conduct may play an important role in determining whether or not a duty of care exists.  In the end it will be the interplay between these various factors which determines, on a case by case basis, whether such a duty is to be imposed.

64                  The applicants’ attempt, in the present case, to plead facts which give rise to a duty of care on the part of both the Commonwealth and the Minister seems to me to have been based upon a misconception.  No precedent, whether governing or persuasive, was cited to me in which a duty of care has been found to exist in circumstances which are even remotely analogous to those set out in this pleading.  There is, of course, no contractual relationship between the Commonwealth and the Minister on the one hand, and the applicants on the other.  There is also no contractual relationship between the Commonwealth and the Minister and CTMS and Fynwest who were the applicants’ initial employers.  Nor is there any such relationship between the Commonwealth and the Minister and any of the PCS respondents.  At best, there is a contractual relationship between the Commonwealth and the Minister and the Lang respondents, and a series of separate contractual arrangements between the Lang respondents and those other entities.

65                  The applicants’ claim that the Minister ought reasonably to have foreseen the economic loss which they sustained is based upon little more than the allegation that the Minister knew, or ought to have known, of the risk that the members of the MUA would take action, if their employment was terminated, which might lead to the loss of the applicants’ jobs.  As Kiefel J observed in Batten, such knowledge is not, of itself, likely to be sufficient to give rise to a duty of care. 

66                  Certainly the principle in Stevens v Brodribb upon which such a duty of care is said to be based has no application to the applicants’ case.  Whatever losses they may have sustained by reason of having had their employment terminated cannot be attributed to any failure on the part of the Commonwealth, the Minister or indeed the Lang respondents to provide a safe system of work.

67                  The principles which govern the operation of O 20 r 2 of the Rules are explained in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.  A summary order which prevents a party from pursuing a claim according to the ordinary course of procedure should be made only in a very clear case.  The power should be exercised with great caution, and only when it is clear that there is no real question to be tried.  The case must be clearly untenable, and not merely a claim that will very probably fail.

68                  Notwithstanding the need to exercise caution when considering summary dismissal of the applicants’ claim in negligence against the Commonwealth respondents, I am satisfied that this case warrants adopting that exceptional course.  It is not arguable, in my view, that the facts which the applicants have pleaded are capable of giving rise to a duty of care on the part of the Commonwealth or the Minister.  Neither the principles laid down in Stevens v Brodribb, nor those laid down in Perre v Apand, are capable of being invoked as the basis for the existence of such a duty of care.  Given that the Commonwealth and the Minister are immune from suit under the Act, and that the only claim brought against them is in negligence, the appropriate order must be that the application against those respondents be dismissed.

69                  The applicants’ claim in negligence against the Lang respondents relies essentially upon the same facts as those which are relied upon in their claim against the Commonwealth and the Minister.  Put simply, the Lang respondents are alleged to have been the moving force behind the actions of CTMS and Fynwest in recruiting the applicants.  They are also alleged to have been responsible for the subsequent actions of PCS Training Services Pty Ltd in employing the applicants to replace members of the MUA whose employment was soon to be terminated.

70                  It is just possible that the claim in negligence against the Lang respondents, highly implausible though it may seem, is capable of passing the low threshold test required to survive an application for summary judgment.  The power to order that proceedings be summarily dismissed should not be exercised unless it is clear that there is no real question to be tried:  Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; and Sibir v Glanville [2000] FCA 1108 at par 11 per Sackville J.  It is not possible to reach that conclusion in relation to the claim in negligence against the Lang Respondents.  The Lang respondents are at least one step more proximate to the applicants than are the Commonwealth and the Minister.  There is also the “agency” variant of the claim made by the applicants to be considered.  It is not appropriate, therefore, in my view, to order that the applicants’ claim in negligence against the Lang respondents be summarily dismissed.

71                  However, the case which is actually pleaded against the Lang respondents proceeds upon a very specific basis.  It relies, in terms, upon the principle enunciated in Stevens v Brodribb concerning the duty on the part of an employer, or person in a position analogous to that of an employer, to provide a safe system of work.

72                  For reasons which I have already outlined above, Stevens v Brodribb has no application, in my view, to the relationship between the applicants and the Lang respondents.  In addition, that case concerned physical injury, and not economic loss.  It is by no means clear that the principles enunciated by the High Court in that case have any application to a claim for pure economic loss.  Although it is true that the second applicant has included in his claim against the Lang respondents a claim for damages for physical harm (post-traumatic stress), that claim should be seen, in its true light, as being almost wholly ancillary to the primary cause of action – a claim for pure economic loss.

73                  In considering what course I should adopt in relation to this pleading, in addition to the fundamental problems associated with pleading facts capable of demonstrating the existence of a duty of care on the part of the Lang respondents, there are also the many defects which are apparent in the manner in which the applicants’ claim in negligence has been formulated.  I have already referred to a number of these defects.  However, other examples abound.  The applicants have failed, and not for the first time, to plead facts which show a causal link between the breach of duty alleged, and the loss or damage suffered – Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215; Council for the City of the Gold Coast v Pioneer Concrete (Qld) Ltd (1998) 157 ALR 135; and McKellar v Container Terminal Management Services Pty Ltd (supra) at 461.  Merely to plead that there was a duty on the part of the Lang respondents to ensure that the applicants were informed of what was to occur regarding the sacking of the members of the MUA, without setting out what the applicants would have done had they been provided with that information, is plainly unsatisfactory. 

74                  In addition, the loss or damage which the applicants claim to have suffered by reason of the various breaches of duty on the part of the Lang respondents clearly includes various heads of damage which cannot be recovered in tort, and are available, if at all, only in contract.

75                  I do not propose to trawl through all of the paragraphs in the pleading which purport to establish a cause of action in negligence against the Lang respondents.  It is not necessary that I do so.  I have said enough to indicate why I consider that these paragraphs, taken as a whole, are thoroughly unsatisfactory.  In their present form they have a tendency to cause prejudice, embarrassment and delay in the proceeding within the meaning of O 11 r 16 of the Rules.  As such they should be struck out. 

76                  The appropriate order is that in so far as the further amended statement of claim pleads facts in support of a claim in negligence against the Lang respondents (pars 219-297), those paragraphs should be struck out.  I shall deal with the question whether the applicants should be given leave to replead this claim later in these reasons for judgment.

Findings regarding the claims made against the Lang respondents under ss 52, 53B and 75B of the Act

77                  I turn now to consider the applicants’ claims against the Lang respondents under ss 52, 53B and 75B of the Act.  These claims are set out in pars 75-132, 298-304, 309-310 and 312-318 of the further amended statement of claim.

78                  To understand the objections taken by the Lang respondents in relation to these claims, it is first necessary to consider, in some detail, how the claims are formulated. 

79                  It will be recalled that the Lang respondents are said to have been involved in various contraventions of ss 52 and 53B of the Act allegedly committed by CTMS and Fynwest.

80                  It is appropriate to set out as illustrative of the style in which these claims are pleaded those paragraphs which deal with the alleged liability of the ninth respondent, Mr Corrigan.  Those paragraphs are pars 99 to 122.  They read as follows:

“Section 75B ‑ Christopher Corrigan

99.       Between August of 1997 and April of 1998 the ninth respondent was a person involved in the contraventions pleaded above as against the Lang Respondents as principals of the first and second respondents of Part V of the Trade Practices Act.     Pursuant to section 75B(1)(a) and (c) he aided, abetted, counselled, procured and         either directly or indirectly was knowingly concerned in or a party to the said contraventions based upon the material facts pleaded below.

100.     In August of 1997 the ninth respondent met with representatives of the first and second respondents namely the third and fourth respondents.

101.     The ninth respondent signed cheques and documentation for the transfer of money to the first and second respondents to implement the written and oral training agreements between August of 1997 and March of 1998.

102.     The ninth respondent personally attended and agreed upon the terms of the oral and written training agreements at the meetings pleaded above.

103.     The ninth respondent signed the written training agreement on 23 October 1997.

104.     The ninth respondent continuously provided verbal instructions between August of 1997 and March of 1998 to the first, second, third and fourth respondents regarding training.

105.     The ninth respondent conveyed orally his approval to the second respondent in November of 1997 of the confirmation of contract details for Dubai trainees.

106.     The ninth respondent received invoices from the first and second respondents which he directed here to be paid for the training.

107.     The ninth respondent was a signatory to a bank account operated by the first and second respondents for the purposes of the training to take place in Dubai at the Commonwealth Bank of Australia, Ballarat, Victoria account number 06350210361816 in the name of International Port Services Account Training Group Pty Limited (A.C.N. 080 371 517) and a cheque account in the name of the second respondent account number 06384710021282.

108.     The ninth respondent conducted a series of conversations with Roger F. Cornwell of the Dubai Ports Authority between 18 November 1997 and 26 November 1997 whereby the ninth respondent conveyed details to Cornwell of the number of passengers flying to Dubai for training, details of passports and visas, details of flight schedules, that the balance of trainees would arrive on 11 December 1997, and receiving a facsimile transmission from Cornwell on 26 November 1997.

109.     The ninth respondent approved orally at meetings held with the first and second respondents in November of 1997 the core manpower requirements of the trainees and approving orally a document headed “Summary Core Skill Manpower Requirements” produced by the fourth respondent on behalf of the first and second respondents.

110.     The ninth respondent conveyed oral approval of the contents of a document headed “Requirements of Location X” to the first and second respondents provided details of equipment to be used and certain areas where recruits would be obtained orally to the fourth respondent.

111.     The ninth respondent executed the written training agreement in the capacity of “Christopher D. Corrigan, Executive Chairman, Patrick the Australian Stevedore” and represented that Patrick the Australian Stevedore would bind all Lang respondents.

112.     The ninth respondent conveyed oral approval to the second respondent to execute a document headed “Training Contract Between the Second Respondent and the Dubai Ports Authority on 30 November 1997” and supplied it to the trainees.

113.     The ninth respondent conveyed oral approval and instruction to employees of the thirty fourth respondent to execute a Deed of Indemnity between the thirty fourth respondent and the second respondent.

114.     The ninth respondent conveyed oral instructions and approval of the execution by the thirty fourth respondent of a Deed of Agreement for Sale of Goods being two container straddle carriers in the sum of $2,600,000.00 to the first and second respondents.

115.     The ninth respondent attended meetings in respect of the training agreements with the first and second respondents on 1 August, 6 August, 13 August, early September, 15 October and 23 October only with the first and second respondents' representatives and the third and fourth respondents and structured the terms of the said agreements.

116.     The ninth respondent executed documentation to transfer the sum of $1,777,746.95 into the account of the second respondent kept at the Commonwealth Bank of Australia at its Global Payment Services Facility on 10 February 1998.

117.     The ninth respondent conveyed oral approval and executed documentation to lend the second respondent the sum of $1,200,000.00 (US) for payment to the Dubai Ports Authority for the purposes of training inter alia the first and second applicants.

118.     On 17 February 1998 the ninth respondent wrote to the second respondent terminating all loan arrangements requesting detailed statements from the second respondent as to payments that the second respondent still required to make and thereafter for the second respondents to repay the Lang respondents the balance of the loan which had not properly been applied by the second respondent towards to the training exercise.

119.     Further, the ninth respondent wrote on the 17 February 1998 to the second respondent requesting that the termination agreement and all other agreements remain secret and confidential.

120.     Further, writing to the first and second respondents that the Lang respondents would release and discharge the second respondent from any further obligations to purchase the stevedoring equipment and to repay the outstanding balance of the loan.

121.     The ninth respondent attended two meetings on 31 January and 16 February 1998 with the first and second respondents.

122.     Conveying oral approval to the first and second respondents on or about November of 1997 as to the wording of the advertisement headed “Trade Specialist Required”.”

81                  It must be said that it is difficult to know what to make of some of these allegations.  Even a cursory analysis will demonstrate the point.  Paragraph 99 alleges, in a somewhat conclusory manner, that Mr Corrigan, the ninth respondent, was relevantly involved in, or a party to, the contraventions of Pt V of the Act supposedly committed by the Lang respondents “as principals” of CTMS and Fynwest.  The very first material fact pleaded in support of that allegation is, according to par 100, that a meeting occurred in August of 1997 between Mr Corrigan and Messrs Wells and Kilfoyle.  That is all that is said about that meeting.  Nothing whatever is pleaded as to what may have been discussed, or agreed, between the parties. 

82                  It is possible, though by no means certain, that the meeting in August 1997 is the same meeting to which reference is made in par 18 of the pleading.  That paragraph refers to a meeting which occurred between these same individuals “on or about 13 August 1997”.  Even so, nothing is said in par 18 as to what occurred during the course of that meeting. 

83                  It is impossible for the Lang respondents to plead, in any meaningful way, to allegations of this type.  Indeed, it is difficult to see how, in their present form, par 18 or par 99, which merely refer to a meeting having taken place, can be said to state any fact which is relevant to any issue raised in this case.

84                  Throughout pars 101-122 it is alleged that the Mr Corrigan attended various other meetings, signed various documents, and gave instructions and approval for different things to be done.  These acts are said, in par 101, to have been done to implement “the written and oral training agreements between August of 1997 and March of 1998”.  It may be that these “written and oral training agreements” include those referred to in par 70 of the pleading.  Under the agreements referred to in that paragraph, which are described as “the oral and written training agreements on 15 and 23 October 1997”, CTMS and Fynwest are said to have agreed to act on behalf of the Lang respondents to recruit ex-military and police personnel.  These persons would be trained as substitute labour to be employed by the Lang respondents after a “mass termination of employees on 30 May (sic) 1998”.  What is not clear is whether the agreements referred to in par 101 are, or include, the same agreements as are referred to in par 70.

85                  In pars 106 and 107 it is alleged that Mr Corrigan received invoices from CTMS and Fynwest which he directed be paid, and that he was a signatory to a bank account operated by those companies for the purposes of the training to take place in Dubai.  One is tempted to ask “so what”? 

86                  In pars 108-122 which follow, there are a series of allegations concerning acts allegedly done by Mr Corrigan.  Those allegations are included, it may be presumed, to demonstrate that he was aware of the purpose for which individuals such as the applicants were to be recruited.  From that awareness it is presumably to be inferred that he was relevantly involved in the misleading or deceptive conduct allegedly engaged in by CTMS and Fynwest.

87                  It was submitted on behalf of the Lang respondents that, even if proved, the facts pleaded in pars 100-122 were incapable of sustaining the general allegation contained in par 99.  That allegation is that Mr Corrigan was relevantly involved in the contraventions of the Act committed by CTMS and Fynwest (or by the Lang respondents, as their “principals”).  No logical connection appears between these paragraphs and the supposed involvement of Mr Corrigan in the misrepresentations allegedly made to the applicants by CTMS and Fynwest.  No facts are pleaded which connect Mr Corrigan with those misrepresentations.  Merely attributing to him knowledge of the true position regarding the applicants prior to those misrepresentations being made is not sufficient to constitute the requisite involvement. 

88                  In my opinion this submission should be accepted.  No facts are pleaded which suggest that Mr Corrigan was aware that the particular misrepresentations relied upon by the applicants in their case against CTMS and Fynwest were to be made by either of those respondents to the applicants.  No facts are pleaded which suggest that Mr Corrigan was in any way involved in the making of those misrepresentations.

89                  In Batten v CTMS Ltd [1999] FCA 1576 Kiefel J noted that s 75B of the Act defines the persons who are to be taken as involved in a contravention of Pt V so that loss and damage may also be recovered against those persons.  Her Honour observed:

“27.     Although the shadow of a conspiracy is cast by references to “strategies”, “objectives” and agreements to implement them, it is nowhere suggested that the Minister took part in plans for the making of the Dubai representations.  It is alleged that he encouraged the Patrick companies to dismiss union labour and hire non-union labour, in an endeavour to decrease or destroy union power on the waterfront, but damages are not alleged to flow from any such agreement.  The applicants’ case is centred upon misrepresentations as to the quality and nature of the employment and its terms (and also to later breaches of contract).  In particular it is alleged that, contrary to the representations, no job security was intended by those speaking on behalf of CTMS or Fynwest.  It is not alleged that the Minister played any part in the making of the representations, apart from providing an objective which required the hire of labour.

28.       The allegations that the Minister aided, abetted, counselled or procured the making of the Dubai representations may then be dealt with shortly.  Such participation is like that of an accessory before the fact in criminal proceedings:  see Yorke v Lucas 158 CLR 667; 1983 49 ALR 672, 676-7 (Full Court).  Putting aside difficulties with the level of knowledge that the Minister was alleged to have, a topic to which I shall return, there is nothing to show that the Minister participated in such a way in the contraventions upon which the applicants’ claim for relief relates.

29.       That leaves the question whether the Minister could be said to have been “knowingly concerned” in the contraventions as alleged.  It must be recalled that this refers, again, to involvement in a contravention.  The applicants’ case goes so far as to allege some knowledge and an interest in an overall plan, but not all aspects of how it was secured.  Mere knowledge of the prospect that a contravention will, or has, occurred will not suffice.  It must be shown that the respondent in question had knowledge of the facts which establish the contravention and that they acted in some positive way in connection with it:  Bell v Australasian Recyclers (WA) Pty Ltd (1986) ATPR 40-644; 47, 222; Sent & Petres & Collier v Jet Corporation of Australia Pty Ltd  (1984) 2 FCR 201; R v Tannous (1987) 10 NSWLR 303, 307-8.” (emphasis added)

90                  Her Honour’s observations may be applied with equal force to the claims brought by the applicants against Mr Corrigan.  They also apply to the claims brought under s 75B of the Act against the twenty-seventh respondent, Mr Clayton – see pars 123-132 of the further amended statement of claim.  They reveal a complete misunderstanding of the requirements which must be met before a claim under s 75B can be made out.

91                  In so far as any claims are brought against the Lang respondents other than Messrs Corrigan and Clayton in reliance upon s 75B of the Act, it is necessary for the applicants to plead material facts which show an involvement on the part of those respondents in the contraventions allegedly committed by CTMS and Fynwest.  It is of course possible that some or all of the Lang respondents gave instructions to CTMS or Fynwest to make the representations which are said to constitute misleading or deceptive conduct.  No facts are pleaded in support of that conclusion. 

92                  In its present state, the pleading against the Lang respondents, in so far as it involves s 75B of the Act as a basis for liability, does not meet the requirements of O 11 of the Rules.  It is liable therefore to be struck out.  Whether or not the applicants should be given leave to replead their claims in this regard is a matter to which I shall return.

93                  I indicated earlier that an alternative basis upon which the applicants plead their claims under the Act against the Lang respondents is that CTMS and Fynwest were relevantly their agents when the misrepresentations were made.  It is said by the applicants that the misrepresentations were therefore made by the Lang respondents, as principals, via their agents. 

94                  The difficulty with this alternative method of pleading the case against the Lang respondents is that there are no facts alleged which are properly capable of giving rise to the conclusion that an agency of this type ever existed.  Certainly nothing in the deed of indemnity executed on 1 December 1997 suggests an agency of the type for which the applicants contend.  With the possible exception of a cursory reference in pars 33 and 34 to the October agreement, there is nothing to link the Lang respondents specifically with what the applicants were to be told by CTMS and Fynwest. 

95                  The paragraphs which set out the October agreement may be sufficient to demonstrate that the Lang respondents were aware, in advance, of what the applicants were to be told.  They do not, however, of themselves, plead facts which tend to show that these respondents “acted in some positive way” in connection with the representations which CTMS and Fynwest agreed to make.  Nor do they demonstrate that the Lang respondents were party to misleading or deceptive conduct, or that CTMS or Fynwest acted as their agents in withholding critical information from the applicants when they were engaged as employees by those companies.

Findings regarding the claims made against the PCS respondents under ss 52, 53B and 75B of the Act

96                  I turn finally to the applicants’ claims against the PCS respondents.  In so far as these claims are based upon s 52 of the Act, in conjunction with s 75B, they are set out between pars 178 and 218 of the further amended statement of claim. 

97                  In substance, what the applicants say is that in or about March and April 1997 a series of meetings took place between Mr Corrigan and certain of the PCS respondents.  Subsequently, it is alleged, an agreement was reached between these parties to the effect that the Victorian Farmers Federation (which, as indicated earlier, has not yet been joined as a respondent in the application, but is named in the further amended statement of claim as the twenty-ninth respondent), would assist the Lang respondents to fund a non-union labour force after members of the MUA, who worked at No 5 Webb Dock, were sacked.  It is further alleged that it was agreed that the twenty-eighth respondent, PCS Operations Pty Ltd, would make a payment or contribution towards the sublease of No 5 Webb Dock, and that it would fund a security force to prevent members of the MUA from entering the premises after their services had been terminated.

98                  In par 195, the gist of the claim against the PCS respondents is set out:

“195.     That the Lang Respondents, PCS Corporations (sic) and the Victorian Farmers Federation would deliberately remain silent and refrain from telling the trainees that the Lang Respondents were to undertake a corporate restructure and terminate their workforce on or before 30 March 1998.”

99                  In par 199 reference is made to “the material facts pleaded above”, and it is alleged:

“…that the Victorian Farmers Federations, PCS respondents and the thirtieth to thirty third respondents engaged in conduct which aided and abetted the contravening conduct as pleaded above committed by the Lang Respondents.”

100               Just what the “contravening conduct as pleaded above” might be is never spelt out.  Presumably it includes the conduct to which reference is made in par 195.

101               What is also alleged is that in or about the end of February 1998 the Lang respondents terminated the oral and written training agreements which they had with CTMS and Fynwest, and entered into an agreement to transfer the employment of the applicants to the PCS respondents.  It is contended that this was done “so as to have no association with the Lang respondents”.  It is then alleged that by this stage government funding for the Dubai training mission was in jeopardy.  A “Four Corners” program on the ABC was about to expose the Lang respondents as being the organisers of the trip to Dubai and the subsequent training mission.  It is said that the purpose behind the PCS respondents taking over the employment of the trainees was so that the Lang respondents would not be implicated in the Dubai venture. 

102               In par 208 it is alleged:

“208.     That the trainees were not to be informed of the Lang Respondents plans to terminate its workforce on 30 March 1998.”

103               In pars 216-218 it is alleged:

“216.     Until the 30 March 1998 PCS Training Pty Limited (sic), PCS Operations Pty Limited and PCS Resources Pty Limited deliberately remained silent as to the conduct of the Lang Respondents in remaining silent and deliberately withholding from the first and second applicants the fact that they were hired in the first instance to replace the union employees who were terminated on mass (sic) on 30 March 1998.

217.              From 31 March 1998 to 15 June 1998 the said PCS corporations deliberately remained silent as to the fact that government funding was going to cease and that the trainees were to be sacked due to a settlement that had been agreed upon between the Maritime Union of Australia and the Lang Respondents.

218.              The applicants plead that the conduct as set out in the paragraphs above was conduct which aided and abetted the contraventions by the Lang Respondents of section 52 of the Trade Practices Act as pleaded above contrary to section 75B(1)(a) of the Trade Practices Act 1974 (Commonwealth).”

104               In substance, it is alleged in these paragraphs that certain unnamed persons, acting on behalf of the PCS respondents, made representations to the applicants concerning how the PCS labour force would be utilised, and also regarding the conditions under which that labour force would be employed.  By their silence concerning what the PCS respondents knew was to happen to the members of the MUA, and the consequences which were likely to flow from their sacking, these representations are said to have been misleading. 

105               The case pleaded against the PCS respondents under s 52 of the Act is one of derivative liability, in reliance upon s 75B.  The applicants contend in this part of their pleading that the Lang respondents, as principals, contravened s 52, and that the PCS respondents were relevantly involved in that contravention.

106               In pars 200-218 of the further amended statement of claim, still more conduct on the part of some of the PCS respondents is identified which is said to constitute aiding and abetting.  It is difficult, however, to discern precisely what the differences are between the acts of aiding and abetting relied upon in pars 178-199, and the acts of aiding and abetting relied upon in pars 200-218.

107               In so far as it is alleged in the pleading that the PCS respondents are liable under s 75B for the acts of the Lang respondents, a nice question arises as to whether a person can aid and abet the aiding and abetting or other involvement by another.  That question need not be considered further at this stage. 

108               In the particular paragraphs which purport to plead a cause of action against the PCS respondents, assuming one can identify which of those respondents is said to have done what, no specific contraventions of s 52 by the Lang respondents are identified.  There is simply a reference to contraventions by the Lang respondents of s 52 of the Act “as pleaded above”.  Whether those contraventions include, for example, those alleged specifically against Mr Corrigan is unclear.  This is entirely unsatisfactory.

109               To the extent that a claim is made under s 75B against the PCS respondents, the manner in which that claim is pleaded suffers from many of the same difficulties which led Kiefel J to strike out a similar claim in Batten.

110               It is unacceptable that a claim under the Act is pleaded in such a disorganised and confused manner.  Paragraphs 178-218 are, in my view, pleaded in a manner which has a tendency to cause prejudice or embarrassment within the meaning of O 11 r 16 of the Rules.  These paragraphs should be struck out.  I shall return shortly to the question whether there should be leave to replead.

111               I now turn to the applicants’ claim under s 53B of the Act.  This is set out in pars 133-177.  Here the claim against the PCS respondents is direct and non-derivative.  The pleading sets out in what may be described as a “staccato style” each specific representation which is said to have been made.  The manner in which this cause of action is pleaded may be illustrated by singling out just some of the paragraphs in question. 

“135.     The thirty first, thirty second and thirty third respondents were at all material times employees of the PCS respondents and entered into an oral agreement with the Lang respondents in January of 1998 in accordance with the terms as pleaded below.

136.              That the PCS respondents would appoint PCS Training Pty Limited (sic) to formally employ the trainees including the first and second applicants.

137.              That a sub-lease would be executed to give the PCS and Lang respondents a right of occupation over number 5 Webb Dock.

138.              That the trainees were not to be told of the Lang respondent’s (sic) plans to sack its workforce under labour supply agreements on the 30 March 1998.

139.              That the trainees would be sent letters of offer of employment by PCS Training Pty Limited and paid by PCS Resources Pty Limited.

140.              That PCS Training Pty Limited (sic) would provide Australian Workplace Agreements to be executed between PCS Training Pty Limited and the trainees including the first and second applicants.

141.              That the Lang Respondents would fund the signing over of the trainees.”

112               After many more allegations of this type, par 177 pleads:

“177.     In contravention of section 53B PCS Training Pty Limited (sic) deliberately omitted to disclose its knowledge that labour supply agreements were to be terminated in respect of Maritime Union of Australia employees then employed by the Lang respondents whose jobs would be effectively terminated on 30 March 1998 and were relevant matters relating to the first and second applicant’s (sic) employment.  Further, the non-disclosure was conduct liable to mislead the first and second applicants as to the availability, nature, terms or conditions of their employment with PCS Training Pty Limited (sic).”

113               Some of the paragraphs contained in this part of the pleading make little or no sense.  For example, par 134 pleads:

“134.     On or about January of 1998 the ninth respondent met with representatives of the fifth, sixth, twenty eighth and twenty ninth respondents (the PCS respondents) who are the thirty first, thirty second and thirty third respondents.”

114               Once again, one is tempted to ask, “so what?”  To plead baldly that a meeting took place without indicating in any way how that fact is said to be relevant to any of the claims made against the PCS respondents is to plead in a manner which is plainly embarrassing and vexatious.

115               While it may be possible to discern, in a general sense, the nature of the applicants’ case against the PCS respondents, the manner in which that case has been formulated makes it particularly difficult for it to be answered.  The conduct of modern litigation is difficult enough without imposing upon defendants the need to resort to conjecture in order to understand the nature of the claims being made against them.  It must be remembered that the purpose of pleadings is to define the issues and thereby 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.  Pleadings are intended to define the issues for decision so that the preparation of the case and the trial can be controlled.  While there are undoubtedly some paragraphs in this portion of the further amended statement of claim which would not fall foul of the requirements of O 11 of the Rules, there are many other paragraphs which are confusing and difficult to comprehend.

116                The power to strike out a portion of a pleading is discretionary.  It should be applied sparingly and only in a clear case.  This seems, however, to me to be a case where such a course is warranted. 

117               I consider that pars 133 to 177 should be struck out.

Should leave be granted to replead against the Lang respondents and the PCS respondents?

118               After giving this matter careful consideration, I have concluded, not without considerable reservations, that the stage has not yet been reached where the applicants should be shut out from seeking to formulate their claims against the Lang respondents.  I have also concluded that the same approach should be taken in relation to the claims made against the PCS respondents.  In arriving at these conclusions, I am mindful of the finality of an order staying or dismissing the proceeding – see Croker v Philips Electronics Australia Limited [2000] FCA 991.

119               In McKellar v Container Terminal Management Services Ltd (supra), when granting the applicants leave to replead a number of their claims, I noted the approach taken by Ryan J in Elliott v Seymour [1999] FCA 976 where his Honour granted leave to the applicants to replead their claims for a sixth time.  Subsequent to that decision, another application was brought by the respondents in that case to strike out the amended statement of claim.  His Honour concluded, “not without diffidence, that the applicant should have one more opportunity to re-plead the remaining claims …” – see Elliott v Seymour (No 2) [2000] FCA 694 at par 73.

120               Adopting a similarly benevolent approach, I have concluded that the applicants should be given what will almost certainly be their last opportunity to formulate their claims against the Lang respondents, and against the PCS respondents.  They should, however, give careful consideration to the wisdom of pursuing claims which they appear to have been unable, thus far, to articulate in any acceptable way.

121               I do not propose to permit the applicants to replead the claim in negligence which they have sought to bring against the Lang respondents.  Although, as I have indicated, I am unable to conclude that this claim should be summarily dismissed pursuant to O 20 r 2 of the Rules, it seems to me to be based upon a serious misconception as to the relevant legal principles.  It is also highly likely, in my view, that if this claim were to be pursued, it would fail.  In these circumstances. I do not think that it is appropriate that I exercise my discretion in favour of allowing the applicants a further opportunity to replead this claim.

122               I have already indicated that the claim in negligence brought against the Commonwealth respondents is wholly untenable and should be summarily dismissed.  Given that the claim in negligence is the only cause of action pleaded against those respondents it follows that the application against the Commonwealth and the Minister must be dismissed.

Associate:

Dated:              10 November 2000