FEDERAL COURT OF AUSTRALIA

Batten v Container Terminal Management Services Limited [2001] FCA 374

Statutes

Trade Practices Act 1974 (Cth) s 75B

Cases

Marks & Others v GIO Australia Holdings Limited & Ors (1998) 196 CLR 494

ROBERT GEORGE BATTEN v CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED, FYNWEST PTY LTD, MICHAEL WELLS, PETER KILFOYLE, PATRICK STEVEDORES NO 1 PTY LTD, PATRICK STEVEDORES NO 2 PTY LTD, PATRICK STEVEDORES NO 3 PTY LTD, NATIONAL STEVEDORING TASMANIA PTY LTD, PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD, LANG CORPORATION LIMITED, STRANG PATRICK HOLDINGS PTY LTD, NATIONAL STEVEDORING HOLDINGS PTY LTD, PLZEN PTY LTD, INTRAVEST PTY LTD, CUMBERLANE HOLDINGS PTY LTD, EQUITIUS PTY LTD, JAMISON EQUITY LIMITED, SERENADE PTY LTD, SCARABUS PTY LTD, PATRICK STEVEDORES HOLDINGS PTY LTD, PATRICK STEVEDORES OPERATIONS PTY LTD, CHRISTOPHER D’ARCY CORRIGAN, WILLIAM CLAYTON, ROBERT DUNN

QG 177 of 1998 

KIEFEL J

4 APRIL 2001

BRISBANE

REASONS FOR JUDGMENT

1                     The applicant seeks leave to file a further amended statement of claim.  I do not propose to list the history of the applicant’s attempts to plead a case.  Some have resulted in applications to strike out;  others have been withdrawn on the basis of reconsideration.  It is sufficient for present purposes to note that the pleading is now separate from that involving later representations (the “Grahame” proceedings) and is in a substantially simpler form than it has been. 

2                     The statement of claim concerns representations made to members of the “Dubai group” with respect to employment as stevedores (for a background to this action and the related action  Q132 of 2000 see my reasons of 12 November 1999 in QG 177 of 1998.).

3                     The representations occurred in the context of an intention alleged, on the part of Mr Corrigan, the Chief Executive Officer of what have been variously called the Lang or Patrick companies (for correspondence with the proposed pleading I shall now call them the “Patrick companies” although they have been called the Lang companies in the past).  It is alleged that Mr Corrigan’s intention was to replace the union workforce of the companies with non-union labour.  This action refers to the conduct on behalf of those respondents and also CTMS Ltd and those connected with it.  CTMS is alleged to have undertaken the recruitment program. 

4                     It is alleged that Mr Corrigan informed Messrs Wells and Kilfoyle of CTMS of his intention, and that subsequently an agreement was made with Messrs Wells and Kilfoyle and later CTMS (from 24 October 1997 when it was incorporated) that they would act on behalf of the Patrick companies to select, recruit and train workers.   The action alleges misrepresentations to group members in that process.  At the same meeting Mr Corrigan is said to have instructed Messrs Wells and Kilfoyle to inform recruits that the employment opportunity:

“(a)     was to become part of a stevedoring company which would offer stevedoring services in competition with other companies then offering stevedoring services on the Australian waterfront; 

(b)       would provide an excellent career for those who accepted the offer; 

(c)        was a job for life; 

(d)       was a permanent position.”

(Paragraph 15).  It may be observed, although it is not expressly pleaded, that no mention was made of their intended use as a replacement workforce for union members.  This is of some importance.  It is then alleged that they did so (par 17) either orally or in writing.  The writing relied upon is particularised.  It is also alleged that Messrs Clayton and Dunn, directors of various of the Patrick companies, knew of Mr Corrigan’s intentions and that they consented to his “taking such action”.  I shall return to this allegation.

5                     At this point it is convenient to turn to the submissions for the Patrick companies.  Other aspects of the pleading will be referred to in the course of consideration of those submissions.

6                     Two preliminary matters raised by the Patrick companies may be dealt with shortly. It is plain that it if leave to amend is given, it will be necessary for the applicant to amend his application to accord with the pleadings.  This is acknowledged by the applicant.  Secondly, there appears to be no present need to strike the sixth to ninth respondents from the action.  This is not pressed by the Patrick companies who merely draw attention to the prospect that this might later be required.  Proceedings against them are currently stayed whilst they are in administration.  The situation can be reviewed closer to trial.

7                     The first substantial complaint is that the “Dubai group” is now known to comprise some sixty or so members.  There is said to be a difference between the circumstances of the members which would reflect in their loss, for example, some were unemployed at the time they took up the positions offered and others were still members of the armed services.  This is particularly relevant if reliance loss is to be sought, a matter to which I shall later refer.  It may not then be appropriate for the proceedings to continue as those of one group.  For present purposes the Patrick companies submit that the proposed pleading should contain all particulars of loss and damage, which is to say of all group members.  The applicant points out that in reality the respondents have been advised of the circumstances of the group members since this was pleaded in schedules to an earlier version of the statement of claim.  This is how it is able to make the point it now does.  I shall refer to this matter and a proposal to plead reliance loss later in these reasons.

8                     It is then submitted that the reference to “other Patrick groups” in par 7 is embarrassing.  I will not set out the paragraph.  It does not seem to me to be a matter of much moment.  It is not a matter likely to confuse the Patrick companies themselves. 

9                     As to the “Dubai representations” it is pointed out, on behalf of Messrs Wells and Kilfoyle, that it is not clear whether they are sought to be made personally liable.  The applicant submits that it is clear that it is alleged they made the representations after the discussions with Mr Corrigan and that they must be taken to have understood that they were misrepresenting the situation, inferentially because they were concealing the true nature of the employment.

10                  What is said to be the basis for any liability in Messrs Wells and Kilfoyle is obscure, until a more careful reading of the pleading is undertaken.  That is also said to have caused the Patrick companies’ confusion in understanding how it was said the representations were misleading and deceptive.  Although it is derived by inference, I think the nature of the wrongful conduct is clear enough.  How a failure to mention it impacted upon the applicant and the group members is a matter for evidence.

11                  It remains the case that there is no plea of agency, on the part of Messrs Wells and Kilfoyle, nor an allegation that they were knowingly concerned.  As pleaded, the particulars of the latter allegation would be that they made the representations, and that would be sufficient.  The applicant otherwise acknowledges the intended allegations are missing and this should be attended to.

12                  A matter of continuing concern has been the issue of the loss and damages sought.  Clearly the claim presently made is not reliance-based.  Counsel for the applicant submits that there is nevertheless a cause of action pleaded.  As presently framed, it is submitted that an expectation loss might yet be recovered (as to which see Marks & Others v GIO Australia Holdings Limited and Ors (1998) 196 CLR 494 per Gaudron J).  It is accepted however that an alternative reliance loss should, and will be, claimed.  It does not seem to me that any respondent can say that this takes them by surprise.

13                  This brings me to the question whether each group member should supply the necessary detail of his loss and damage claimed, which would include reference to his circumstances and also the details of reliance in his particular case.  It would seem to me essential that particulars of reliance also be furnished in the context of these proceedings.  Whilst the facts which make up reliance may not always colour the claim for loss and damage, it can be an important distinguishing feature in group claims and I consider the respondents are entitled to details of it at a point prior to hearing.  As presently pleaded (as I discuss in the reasons in Q132 of 2000), what was conveyed to individuals is not concluded by the particulars and it is unlikely that each of them comprehended what was put to them in the terms of the representations as pleaded.  In the context of these proceedings, I take them to be the conclusions or inferences contended for.  It is not, I consider, necessary that this information be provided now and prior to any defence to the applicant’s claim.  It may be provided by way of further pleading, with the particulars of loss and damage or by way of statement.  The individual group members’ claims could be supplied later, and by way of signed statements.

14                  It was also submitted that any allegation that the Patricks’ directors, Messrs Clayton and Dunn, were parties to or knowingly concerned in any contravention is not properly pleaded.  As it stands only knowledge is pleaded in paragraph 16.  That paragraph also contains an allegation that those directors “consented to Mr Corrigan taking such action”, but this is further particularised only by reference to the preceding allegations of knowledge.  The applicant says that it is in a position to provide further particulars and it should do so.

15                  Lastly, it is submitted that the reference in paragraph 24 to a joint venture between the respondents is confusing and embarrassing.  The Patrick companies do not know what is sought to be made of this general allegation.  It is not apparent to me that it will likely advance matters very far.  It is said to be a conclusion upon which liability might also depend pursuant to s 75B Trade Practices Act 1974 (Cth), in which case the matter is largely one of law.  It is pleaded so as to rely upon facts already pleaded and is therefore circumscribed.  It appears to be a matter largely of argument which can be left for the hearing.

16                  Leave to further amend the statement of claim in the terms notified on 16 February 2001 will be granted, subject to:

(i)         the applicant making clear whether Messrs Wells and Kilfoyle are alleged to have acted on behalf of the first respondent;  and whether it is alleged that they were knowingly concerned in the contraventions;

(ii)        particulars of the basis upon which Messrs Clayton and Dunn are alleged to have been knowingly concerned in the contraventions, being provided;

(iii)       the applicant pleading full particulars of any reliance loss claimed.  The facts relating to his reliance are to be provided either in the pleading or by way of statement.

(iv)       the applicant being required to file an amended application which accords with the claims now pursued.

17                  Whilst I appreciate it has taken a long time for the applicant to put his pleading in order, the respondents have been protected by costs.  The proceedings cannot be said to be futile.

18                  My provisional view as to costs is that the applicant should pay the Patrick companies’ costs on the application for leave to amend.  I do not think there is a basis for an order that they be taxed on any special basis.  I will not make an order at this point.  If the parties wish to make further submissions they may do so at the next directions hearing.

19                  I will hear from the parties as to the time for filing of the amended pleading and any statement by the applicant;  as to directions for the delivery of defences; further interlocutory steps and the provision of the statements by group members as to reliance and loss and damage.  My present view is that the pleading and any statement by the applicant should be provided within fourteen days.

Associate:

Dated:              4 April 2001