FEDERAL COURT OF AUSTRALIA

Laing v Construction, Forestry, Mining and Energy Union (No 2) [2006] FCA 750

WILLIAM LAING (An inspector appointed pursuant to s 84(2)(a) of the Workplace Relations Act 1996) and NIGEL HADGKISS  -v-  CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and JOHN CUMMINS  and  S J HIGGINS PTY LTD  and  SHANE CHRISTOPHER SHEEDY

VID 895 of 2003

RYAN J

16 JUNE 2006

MELBOURNE

THE COURT ORDERS THAT:

1.         The proceeding be dismissed in relation to any relief claimed against the fourth respondent Shane Christopher Sheedy (“Sheedy”) personally.

2.         The applicants have leave to file and serve, by 7 July 2006, a further amended application conforming generally with the draft further amended application filed on 8 July 2005 but further amended to take account of:

(a)        the dismissal of the proceeding as against Sheedy ordered by paragraph 1 of this Order;  and

(b)        the reasons for judgment published this day.

3.         The applicants have leave to file and serve, by 7 July 2006, a further amended statement of claim conforming generally with the draft further amended statement of claim filed on 8 July 2005 (“the fresh statement of claim”) provided that:

(a)        paragraphs 47 and 48 be struck out of the fresh statement of claim;

(b)        the fresh statement of claim be further amended;

(i)         to reflect the dismissal of the proceeding as against Sheedy effected by paragraph 1 of this Order;  and

(ii)        to conform generally with the reasons for judgment published this day.

4.         The amendments authorised by this Order be made by filing a fresh document in accordance with O 13 r 9 of the Rules of this Court.

5.         The respondents file and serve by 28 July 2006 their defences to the further amended statement of claim authorised by paragraph 3 of this Order.

6.         The directions hearing herein be adjourned to 11 August 2006.

7.         Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.

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

REASONS FOR JUDGMENT

(in consequence of joinder of claim for relief in respect of contravention of s 298K and an application for leave further to amend the application and statement of claim)

1                     On 10 June 2005, I published reasons for judgment (Laing v Construction, Forestry, Mining and Energy Union [2005] FCA 765) (“the earlier reasons”) canvassing various deficiencies which were claimed by Mr S Wood of Counsel for the third and fourth respondents to exist in a yet further amended statement of claim which the applicant sought leave to file in these proceedings.  The present reasons should be read in conjunction with the earlier reasons.

2                     The earlier reasons were published in explanation of an order, amongst others, that;

‘The applicant have leave to file and serve by 8 July 2005 a further amended application and a further amended statement of claim conforming generally with the reasons for judgment published this day.’

3                     Pursuant to that leave, the applicant, on 8 July 2005 filed a further amended application (“the fresh application”) and a further amended statement of claim (“the fresh statement of claim”) and on 11 August 2005 was given leave further to amend the fresh statement of claim to include a claim for contravention of s 298K of the Workplace Relations Act 1996 (Cth) (“the Act”).  That leave was granted subject to any further or later order which might be made striking out parts of the fresh application or the fresh statement of claim and subject to the Court’s noting;

‘The acceptance by the applicants that the amendment of the further amended application and the further amended statement of claim to include a claim for contravention of s 298K of the Act shall be treated as the institution of a separate proceeding for the purpose of the application of s 347 of the Act.’

4                     Counsel for the third and fourth respondents has maintained, or renewed, his attack on parts of the fresh statement of claim contending that the amendments made in purported conformity with my earlier reasons have not cured the embarrassing features which had earlier been identified on behalf of the third and fourth respondents.

5                     It is convenient to examine separately, and in order, each part of the fresh statement of claim which Counsel for the third and fourth respondents has contended should be struck out.

Basis of liability of the third respondent under s 170NC.

6                     It is alleged in par 40 of the fresh statement of claim;

‘On or about 4 or 5 September 2003 S.J. Higgins threatened W.M. Loud that the contract would be cancelled if W.M. Loud did not make a certified agreement with the CFMEU, alternatively that if W.M. Loud did make a certified agreement with the CFMEU the contract would not be cancelled.’

7                     A separate threat is then alleged in par 45 of the fresh statement of claim in these terms;

‘Further, on or about 26 August 2003 S.J. Higgins threatened to refuse to consider W.M. Loud in the allocation of future subcontracts for work which W.M. Loud was capable of performing, alternatively threatened to refrain from allocating to W.M. Loud future sub contracts for such work (“the threat of refraining to take action”).

8                     It is then alleged in par 46 of the fresh statement of claim that;

‘The threat of refraining to take action was made with intent to coerce W.M. Loud to agree to make the first proscribed agreement, alternatively to agree to make the second proscribed agreement, alternatively to agree to make the proscribed variation.’

9                     The first and second proscribed agreements were respectively identified in par 34(a) and (b) of the fresh statement of claim as;

‘An agreement under Divisions 2 or 3 of Part VIB of the Act with the CFMEU (“the first proscribed agreement”);’

and

‘An agreement under Divisions 2 or 3 of Part VIB of the Act that complied with the terms of the industrial instrument described as the Victorian Building Industry Agreement 2000-2003 (“VBIA”) (“the second proscribed agreement”).’

10                  The proscribed variation is identified in par 41 of the fresh statement of claim where it is alleged;

‘S.J. Higgins made the threat pleaded in paragraph 40 above with intent to coerce W.M. Loud to agree:

………

(c)        to vary the 2003 Agreement (“the proscribed variation”).’

11                  In par 47 of the fresh statement of claim it is pleaded;

‘The threat pleaded in paragraph 40 above was unlawful.’

Particulars appended to that paragraph refer to aspects of the contract between W.M. Loud and S.J. Higgins including the fact that work pursuant to it had not commenced and it conferred no entitlement on S.J. Higgins to cancel it by reason of W.M. Loud’s not having an EBA with the CFMEU. 

12                  Paragraph 48 of the fresh statement of claim pleads;

‘Alternatively and in any event the threat pleaded in paragraph 40 above and the threat pleaded in paragraph 45 above were illegitimate, or alternatively unconscionable.’

13                  The particulars appended to that allegation are;

‘(a)      W.M. Loud tendered for approximately 25 to 30 subcontracts with S.J. Higgins each year.

(b)       S.J. Higgins was a valued client of W.M. Loud and loss of the contract and future contracts which W.M. Loud was capable of performing would have a significant adverse effect on the business of W.M. Loud.

(c)        S.J. Higgins knew or ought to have known of the matters in subparagraph (b).

(d)       W.M. Loud was performing work for S.J. Higgins pursuant to contracts as pleaded in paragraph 24 above and continued to do so.

(e)        W.M. Loud did not have a certified agreement with the CFMEU in respect of the said sites and was not a party to any VBIA in respect of those sites.

(f)        The matters pleaded in paragraphs 11 to 20 above.

(g)       W.M. Loud was opposed to the making of an EBA with the CFMEU and the threats interfered with its entitlement to bargain freely with unions and W.M. Loud’s employees as recognised under Part VIB of the Act.

(h)       By reason of the matters pleaded in paragraph 42(e) and (f) above S.J. Higgins was acting with a view to avoiding industrial trouble for itself with the CFMEU.

(i)        W.M. Loud was fully capable of performing the work the subject of the contract.’

14                  Counsel for the third and fourth respondents has objected to par 47 of the fresh statement of claim as embarrassing.  I agree.  Section 170NC(1) of the Act prohibits the taking of, or threatening to take, action within intent to coerce another person to act in relation to an agreement under Div 2 or 3 or to approve such action.  If an applicant can prove the making of a threat with the prohibited intent to coerce, that is all that is required.  It does not add anything to say, as is done in par 47 of the fresh statement of claim that the threat was unlawful.  In the first place, that formulation pleads a matter of law not material fact.  Secondly, as I pointed out at [90] of the earlier reasons in respect of what was then par 59 of the previous further amended statement of claim, matters going only to unlawfulness are essentially circular.

15                  A pleading to charge a respondent with a contravention of s 170NC should identify, first, the action taken or the threat to take action and should allege in respect of that action that it was taken or made with intent to coerce another person to agree or not to agree to one of the matters enumerated in s 170NC(1)(c) or (d). 

16                  In the earlier reasons, I referred to the authorities, principally Seven Network (Operations) Ltd v CEPU (2001) 109 FCR 378, which indicate that “intent to coerce” within the meaning of s 170NC(1) requires an intent to exert pressure which, in a practical sense, will negate choice and, secondly, that the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.  It may be that par 47 of the fresh statement of claim was intended to allege that S.J. Higgins’ threat was to do something unlawful but that is not what it says.  Nor is that meaning borne out by the purported particulars appended to par 47. 

17                  In my view, par 40 of the fresh statement of claim, with its particulars, adequately identifies the making of the alleged threat by S.J. Higgins.  Similarly, par 41 of the same pleading sufficiently alleges the things which S.J. Higgins intended to induce (to use a neutral term in lieu of “coerce”), W.M. Loud to agree to do.  Paragraph 42 of the fresh statement of claim is really by way of supplying particulars of the matters from which it is alleged that intent is to be inferred. 

18                  However, there is no paragraph or separate statement of particulars in proximity to par 40 of the fresh statement of claim which identifies how the threat alleged to have been made by S.J. Higgins involved conduct that was unlawful, illegitimate or unconscionable.  Paragraph 45 reproduced at [7] above, where one would expect such a pleading or particulars to occur, alleges a separate threat by S.J. Higgins to refuse to consider W.M. Loud in the allocation of future subcontracts or to refrain from allocating such subcontracts to it.  Paragraph 46 of the fresh statement of claim is essentially a vehicle for repeating, as particulars of the intent with which that separate threat was made, the same matters as are relied on to support the allegations of intent in pars 42 and 43.  Nevertheless, there is no attempt made until par 48 to identify the matters relied on as making that separate threat unlawful, illegitimate or unconscionable.  Even then, par 48 “rolls up” the threat alleged in par 40 with the separate threat of refraining to take action alleged in par 45.

19                  It follows that pars 40 to 48 of the fresh statement of claim do not conform with what was indicated at [90] of the earlier reasons to be necessary.  I there said, after referring to the authorities, including Seven Network (Operations) Ltd v CEPU (supra);

‘Those authorities suggest that “illegitimate” is largely, if not entirely, synonymous with “unlawful” but it may extend to conduct which, although not unlawful, is “unconscionable”.  However, whatever ultimately be held to be the reach of “illegitimate”, it is necessary, I consider, for the applicant to specify separately each action or threat said to be “unlawful”, each action or threat said further or alternatively to be “illegitimate” and each action or threat said further or alternatively to be “unconscionable.”  Particulars should then be given of the acts, circumstances and things said to constitute each unlawfulness, illegitimacy or unconscionability as the case may be.  The particulars subjoined to the present par 59 go only to unlawfulness and are essentially circular.  If it is to be alleged that the cancellation of the contract was unlawful as a breach of the contract, the particulars should say so with reference to the relevant provisions of the contract. …’

20                  For these reasons, pars 47 and 48 of the fresh statement of claim should be struck out.  However, I shall give the applicants another chance to replead by including a paragraph or particulars indicating separately each of the matters relied on as establishing that the threat alleged in par 40 was made with intent to coerce W.M. Loud in the sense that it involved conduct that was;

(a)        unlawful;

(b)        illegitimate;

(c)        unconscionable.

21                  Of course, it is accepted that some of those separate allegations or particulars may be subsumed under more than one of the subheadings just indicated.  The fresh statement of claim should also be further amended to include a separate paragraph or particulars identifying specifically each of the matters relied on as establishing that the threat of refraining to take action alleged in par 45 was made with intent to coerce W.M. Loud.  That paragraph, or those particulars, should indicate distributively the matters relied on as establishing that the threat of refraining to take action involved conduct that was;

(a)        unlawful;

(b)        illegitimate;

(c)        unconscionable.

Basis of liability of Sheedy under s 170NC

22                  Paragraphs 49 to 52 of the fresh statement of claim make clear that the basis of the allegations against the fourth respondent (“Sheedy”) is his position as an employee and manager of the third respondent (“S.J. Higgins”).  Those paragraphs, omitting particulars, are in these terms;

‘49.      As S.J. Higgins’s Construction Manager, Sheedy was responsible on a date to day basis for the construction operations of S.J. Higgins, including the work undertaken at the site, and thereby controlled these matters on behalf of S.J. Higgins.

50.       In Sheedy’s role as Construction Manager, he made decisions concerning contracts between S.J. Higgins and sub-contractors and clients, and thereby controlled these matters on behalf of S.J. Higgins.

51.       Sheedy also made decisions on behalf of S.J. Higgins concerning industrial relations and human resources issues that arose on sites on a day to day basis, and thereby controlled these matters on behalf of S.J. Higgins.

52.       As at August 2003 Sheedy had been employed by S.J. Higgins for approximately ten years, and by reason of that employment and the matters pleaded to in paragraphs 49 and 50 above knew that S.J. Higgins had a good and long standing commercial relationship with W.M. Loud in that W.M. Loud regularly tendered for sub contracts to be let by S.J. Higgins and was regularly awarded sub contracts by S.J. Higgins for performance of work on sites in Victoria.’

23                  Paragraphs 53 and 54 then impute to Sheedy actual or constructive knowledge of certain matters going to W.M. Loud’s participation in a certified agreement with the AWU and the effect on its business of the loss of an existing contract and future contracts with S.J. Higgins.  It is next pleaded in pars 55 and 56 of the fresh statement of claim;

‘55.      When Sheedy engaged in the conduct pleaded in paragraphs 40 and 45 above, he did so with the intent to coerce W.M. Loud to agree to make the first proscribed agreement, alternatively the second proscribed agreement, alternatively the proscribed variation.

56.       The conduct engaged in by Sheedy as pleaded in paragraph 40 above was unlawful;  or alternatively and in any event the said conduct and the conduct pleaded in paragraph 45 was illegitimate, alternatively unconscionable.’

24                  Paragraphs 57 and 58 somewhat inconsequentially plead that, on 8 September 2003, S.J. Higgins, by its project manager, Zahopoulos, “who reported to Sheedy”, gave notice to W.M. Loud that its existing contract with S.J. Higgins had been, or would be, terminated or notice purporting to cancel the contract, and that Sheedy instructed Zahopoulos to take that action.  Paragraph 59 contains the conclusory allegation that;

‘59.      By reason of the matters pleaded in paragraphs 40, 45, 49 to 56 above Sheedy has breached s.170NC of the Act and by reason of those matters a penalty should be imposed on Sheedy for such breach.’

25                  Finally under this heading, par 60 of the fresh statement of claim alleges that “unless restrained S.J. Higgins and Sheedy will continue to breach s 170NC of the Act.” 

26                  In the earlier reasons, I pointed to the failure of the previous version of the statement of claim to establish a foundation for fixing Sheedy with personal liability for any unlawful conduct said to make coercive the intent to procure W.M. Loud’s assent to the first proscribed agreement, the second proscribed agreement or the proscribed variation.  I there said, at [80];

‘Even more significantly, the allegation in par 52 is devoid of any indication of why whatever Sheedy did in connection with the letter was done with the intent personally to coerce W.M. Loud to enter into a proscribed agreement or make the proscribed variation.  The contract which the letter of 8 September 2003 cancelled, or purported to cancel, was not Sheedy’s contract.  The only parties to it were, presumably, the third respondent and W.M. Loud.  Accordingly, any action by Sheedy in relation to the contract would, in the ordinary course, have been taken by him in his capacity as an employee of the third respondent and on its behalf.  It would follow that any intent which Sheedy had at the time of taking the action would have been the intent, not of Sheedy personally, but of the third respondent.’

27                  Similarly, I pointed out at [85] of the earlier reasons;

‘… … If the allegation in par 48(c) that “the Third Respondent through Sheedy advised W.M. Loud that … the Third Respondent would be cancelling the contract and terminating future work” is to be relied on as establishing a threat made by Sheedy personally, further facts will have to be pleaded.  That is so because the actions threatened are clearly those of the third respondent and the natural inference is that the threats were made, as the prefatory words of the paragraph suggest, by the third respondent “through Sheedy.”’

28                  That criticism was picked up and developed at [90] of the earlier reasons where, after the extract quoted at [19] above, it was observed;

‘… As already explained, that form of unlawfulness could only be alleged against the third respondent as the only other party to the contract with W.M. Loud.  However, if the allegation of unlawful action by Sheedy personally is to be persisted in, the relevant particulars should disclose matters amounting to his having procured, or threatened to procure, a breach of the contract by the third respondent.’

29                  In my view, the paragraphs of the fresh statement of claim attempting to charge Sheedy with personal liability for a contravention of s 170NC have not overcome the deficiencies identified in the earlier reasons.  There is still no suggestion that Sheedy did anything, or formed any intent, otherwise than in his capacity as an employee and manager of S.J. Higgins. 

30                  Mr H Dixon SC, who appeared with Mr T Jacobs of Counsel for the applicants, sought to overcome these objections by pointing, first, to the fact that s 170NC prohibits a “person” from taking or threatening to take action with intent to coerce another to agree or not to agree to do one of the things enumerated in s 170NC(1)(c) or (d).  I accept that “person” in that context includes a natural person.  However, the action which is taken or threatened must obviously impinge on the other person whom it is intended to coerce.  On the face of the fresh statement of claim, the only action which has been alleged which is capable of impinging on W.M. Loud is that by S.J. Higgins.  S.J. Higgins is the only person alleged to be a party to an existing contract with W.M. Loud and is the only person with whom W.M. Loud has an expectation of concluding future contracts.  On the other hand, the pleading affords no basis for asserting that any action by Sheedy, in his personal capacity or on his own behalf, could affect W.M. Loud in any way.  The matter can be tested by supposing that Sheedy were to leave the employee of S.J. Higgins tomorrow.  In that event, the threats allegedly made by Sheedy on 4 or 5 September 2003 would continue to have an effect although, ex hypothesi, it would no longer be in Sheedy’s power to do anything to make good those threats.

31                  It is true, as Counsel for the applicants pointed out, that s 349(2) of the Act imposes vicarious or parallel liability on a body corporate for conduct done by, or at the direction or with the consent or agreement of, an officer, director, employee or agent of the body corporate where the conduct, direction, consent or agreement was within the scope of the actual or apparent authority of the relevant officer, director, employee or agent.  However, that provision does not, of itself, import the corollary that s 170NC imposes personal liability as a principal on the officer, director, employee or agent.

32                  In Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 a Full Court of this Court held that an organisation of employees (the AFMEPKIU) was vicariously liable for threats made in contravention of s 170NC by one of its organisers.  The Court held that both the organiser and the AFMEPKIU were liable for threats made by the organiser with intent to coerce an employer to sign an agreement under s 170LJ of the Act.  However, no issue was raised as to whether the organiser attracted personal liability in the event that the Court was satisfied that the threats had been made with the requisite coercive intent.  Moreover, the threats were capable of being construed as portending conduct in which the organiser would himself engage.  For example, it was found, at 538 and 539, that the organiser had said to the employer, “if you don’t sign this construction EBA I’ll be looking out for you on all the other jobs” and that he (the organiser) would “stop the job” (emphasis added).  That clearly imported a threat of future conduct by the organiser himself.  The Full Court also noted, at 545, a submission on behalf of the appellant that the organiser had been threatening the use of the Union’s powers as well as his own” (emphasis added).  I have been unable to discern in the fresh statement of claim any allegation of a threat by Sheedy personally to engage in conduct which would impinge on W.M. Loud or to use his own powers as well as those of S.J. Higgins.

33                  Similarly, in Seven Network v CEPU there was a finding that the State Secretary and an organiser of the Union were personally liable for threats which each had made of industrial action against an employer.  By contrast with Hanley, a point was apparently taken as to the attribution of personal liability to the State Secretary and the organiser although the principal case for those respondents seems to have been that the industrial action which they had threatened was protected industrial action within s 170MO of the Act.  In any event, Merkel J observed, at 389 [46]-[47];

‘In the present case it is not disputed that the conduct of the individuals is that of the CEPU.  Rather, the issue is whether Mighell and McCallum are personally liable for the conduct they engaged in on behalf of the Union.  The issue of when a tortious act of a corporation can also constitute a tortious act of the director acting on behalf of the corporation was considered by Finkelstein J in Root Control Technologies Pty Ltd v Root Quality Pty Ltd (2001) 177 ALR 231.  His Honour, after reviewing the authorities, concluded at [146]:

“All that can be said confidently is that if a director decides that his company should carry out an act that results in an infringement of the rights of a third party, the director does not, without more, render himself personally liable at the suit of the third party . . . . The Director’s conduct must be such that it can be said of him that he was so personally involved in the commission of the unlawful act that it is just that he should be rendered liable. If a director deliberately takes steps to procure the commission of an act which the director knows is unlawful and procures that act for the purpose of causing injury to a third party, then plainly it is just that liability should be imposed upon him.  Lesser conduct may suffice.  For example, if the director is recklessly indifferent as regards whether his company’s act was unlawful and would cause harm, that may also suffice. In the end it will depend upon the facts of each particular case.  Where the boundary lies, between the non-tortious conduct of a director who acts bona fide within the course of his authority and the tortious conduct of a director who acts deliberately and maliciously to cause harm, cannot be stated with any precision.”

In the context of the Act, where a s 170MO notice is given on behalf of an organisation by an authorised officer in accordance with the Act, without more, that act would appear to be the act of the organisation alone.  However, the officer can be personally liable for the giving of the notice if there is “more”.  Thus, if the notice is improperly given, the officer who gave the notice might be personally liable for giving it notwithstanding that the officer was acting within the scope of his or her authority.’

34                  By contrast, as already indicated at [32] above, the fresh statement of claim does not disclose anything “more” than threats made within his actual or ostensible authority from S.J. Higgins, which, even arguably, would attract personal liability to Sheedy for a contravention of s 170NC(1).  The final authority relied on by Counsel for the applicants in this context was Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) (2004) 138 IR 362.  In that case, the alleged contravention of s 170NC was constituted by actual industrial action, as distinct from a threat of action.  The relevant industrial action took the form of a five day strike in October 2004 in respect of which French J attributed personal liability to the President of the respondent Union, Mr Saunders, who had signed a Notice of Intention to take Industrial Action dated 1 October 2004, its Federal Secretary, Mr Ferguson and its Industrial Officer, WA Branch, Mr Edmunds.  In fixing those officers with personal liability for contravening s 170NC, French J observed, at 391 [121]-[124];

‘121     The second Notice of Initiation of Bargaining Period received on 28 September 2004 was signed by Mr Ferguson.  It was, clearly enough, setting the scene for the initiation of industrial action if agreement could not be reached.  By reason of Mr Ferguson’s involvement and his office as secretary of the AMWU (Cth), I am prepared to infer on the balance of probabilities that he was involved in and party to the taking of industrial action against Premier Coal in October. 

122      I take the same view of Mr Edmonds who personally delivered the first Notice of Intended Industrial Action to Premier Coal in July and who is an officer of the union who provides legal advice to it.  I infer from his position, his role and his earlier conduct in delivering the July notice that he was a party to the taking of the industrial action in October.

123      In relation to the other shop steward respondents mentioned, although they participated in meetings with Premier Coal, I am not satisfied that the evidence will allow me to draw any reliable inference as to what, if any, role any of them may have played in the authorisation or organisation of the October strike.   While Mr Kearney’s statements to Mr Warrand and Mr Allen about the receipt of the Clayton Utz letter were suggestive of his participation they did not, given his level within the union, unequivocally support the inference that he was an actor in the organisation and initiation of the industrial action. I am not prepared to make any declaration that the shop stewards have engaged in the industrial action in question so as to have contravened s 170NC.

124      I have no doubt that the object of all of the officers of the union who organised and were party to the October strike was to endeavour to coerce Premier Coal to make an agreement along the lines of what had been provisionally agreed to that point and which would not put mining operators and maintenance employees on the same rostering arrangements.  In my opinion therefore, the AMWU (Cth), Mr Saunders, Mr Ferguson and Mr Edmonds took and threatened to take industrial action with which to coerce Premier Coal into making an agreement under Div 2.  There will be a declaration accordingly.’

35                  Those passages make quite clear that central to the personal liability of the individual officers was their actual involvement in the offending industrial action including, as his Honour seems to have inferred, by encouraging the employees of Premier Coal to go on strike and thereby procuring breaches of their respective contracts of employment.  By contrast, as I have endeavoured to explain in the earlier reasons and above, there is no allegation in the applicants’ pleadings of any fact from which it could be inferred that Sheedy had threatened conduct in which he personally would engage, as for example, by procuring a breach by S.J. Higgins of its existing contract with W.M. Loud.

36                  The fact that the applicant’s advisers have been unable to formulate a second set of amendments to the statement of claim which discloses, in my view, a cause of action against Sheedy personally for contravention of s 197NC is significant.  That is particularly so as the inability has persisted despite the drafters having had the advantage of the detailed criticism and analysis (including that in the earlier reasons) which was made of the first attempt.  It suggests, in the manner explained by Gleeson CJ in Trau v University of Sydney (1989) 34 IR 466 at 475, that the cause of action cannot be made out.  His Honour there said:

‘Even under the modern system of pleading, considerations of form and substance are often closely intertwined.  If one sees that a plaintiff’s lawyers are experiencing extreme difficulty in formulating with clarity and particularity their client’s cause of action then that is often a very good indication that there is no cause of action.  The history of the present matter creates the strong impression that such a problem exists, compounded by an additional difficulty created by a need to manoeuvre around problems concerning periods of limitation.’

37                  A similar impression has led me to conclude that the proceedings should be dismissed in relation to the claim for relief against Sheedy personally.  I am reinforced in my view that such an order is an appropriate exercise of the Court’s discretion by the acceptance of S.J. Higgins that it will be vicariously liable for whatever Sheedy may be found to have threatened or done in relation to W.M. Loud.

Joinder of a claim based on contravention of s 298K

38                  By notice of motion dated 8 July 2005, the first applicant sought leave to add Nigel Hadgkiss, Director of the Building Industry Taskforce, as the second applicant in this proceeding.  As noted at [3] above, immediately at the end of the hearing on 11 August 2005, I granted that leave and ordered that the applicants have leave further to amend their application and their statement of claim to include a claim for contravention of s 298K of the Act.  The draft further amended application and the fresh statement of claim filed on 8 July 2005 anticipated that grant of leave. 

39                  Section 298K(2) of the Act provides;

‘A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a)        terminate a contract for services that he or she has entered into with an independent contractor;

(b)        injure the independent contractor in relation to the terms and conditions of the contract for services;

(c)        alter the position of the independent contractor to the independent contractor's prejudice;

(d)        refuse to engage another person as an independent contractor;

(e)        discriminate against another person in the terms or conditions on which the person offers to engage the other person as an independent contractor.’

40                  Section 298L of the Act enumerates a catalogue of prohibited reasons and provides, so far as is relevant;

‘(1)      Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:

… … …

(h)        is entitled to the benefit of an industrial instrument or an order of an industrial body;’

41                  In pars 61 to 64 of the fresh statement of claim it is alleged that the contract between S.J. Higgins and W.M. Loud was a contract for services for the purposes of s 298K(2) and that W.M. Loud was at all material times entitled to the benefit of the 2003 Agreement which was an industrial instrument within the meaning of s 298L(1)(h).

42                  It is then alleged in par 65 of the fresh statement of claim that;

‘In and during September 2003 the Sheedy threatened to do the following:

(a)       Terminate the contract.

PARTICULARS

The Second Applicant repeats paragraph 40 above.

(b)       Alter the position of W.M. Loud to its prejudice, within the meaning of s 298K(2)(c) of the Act.

PARTICULARS

The Second Applicant repeats paragraph 45 above.

(c)        Alternatively, refuse to engage W.M. Loud as an independent contractor on future sub-contracts for work which W.M. Loud was capable of performing.

PARTICULARS

The Second Applicant refers to paragraph 45 above.’

43                  It is accepted by Counsel for the applicants that the reference to “the Sheedy” in that paragraph is a mistake and that it should have been to “S.J. Higgins.”  It has also been pointed out by Counsel for the third and fourth respondents that there is a temporal disconformity between the time “in and during September 2003” stipulated in the prefatory words of par 65 of the fresh statement of claim and the time nominated in par 5 of the fresh application for the contravention of s 298K(2) which is there said to have occurred “during the period 26 August 2003 to 5 September 2003.”  The structure of s 298K(2) also requires that the allegation in par 65(b) of the fresh statement of claim be cast as an alternative to that in par 65(a).  More significantly, Counsel for the third and fourth respondents complains that par 65(b) of the fresh statement of claim and the particulars thereto do not sufficiently identify the “position” of W.M. Loud which S.J. Higgins allegedly altered to the prejudice of W.M. Loud.  I infer from the structure of the pleading and the incorporation by reference in par 65 of par 45 of the fresh statement of claim that the “position” of W.M. Loud which was allegedly “altered” was its status as a paving contractor which would be considered by S.J. Higgins in the allocation of future subcontracts.  If that inference be correct, it is desirable that it be made explicit in the body of par 65 or the particulars thereto.  If it is intended to rely on some other “position”, that should be spelled out in the pleading. 

44                  The matters canvassed in the last preceding paragraph [43] are all minor and readily curable by further amendment of par 65 of the fresh statement of claim.

45                  Paragraph 66 of the fresh statement of claim alleges;

‘The conduct of the Sheedy pleaded in paragraph 65 above was taken for the reason, or for reasons that included, that W.M. Loud was entitled to the benefit of the 2003 Agreement.’

46                  Consistently with the acknowledgement noted at [43] above, the reference to “the Sheedy”, in par 66 should be amended by substituting for it the expression “S.J. Higgins”.

47                  Paragraph 67 of the fresh statement of claim alleges;

‘On or about 8 September 2003 S.J. Higgins gave notice to W.M. Loud of termination of the contract, alternatively that the contract had been terminated, alternatively purporting to cancel the contract.’

48                  Some uncertainty is imported into this paragraph, particularly by the inclusion of the phrase “purporting to cancel the contract.”  It is not clear whether par 67 is intended merely to plead that the threat alleged in par 65(a) was made good, or rather to allege a separate infringement of s 298K(2) by actually terminating the existing contract.  If, as appears more likely, it was intended to allege a further or alternative contravention constituted by the actual termination of an existing contract, that should be made clear by an appropriate amendment to par 67.

49                  Paragraph 68, as it appears in the fresh statement of claim, duplicates par 66 quoted above.  If par 67 was intended to allege a further or alternative contravention in the way indicated in the last preceding paragraph [48], par 68 should be amended to refer to “the conduct of S.J. Higgins pleaded in paragraph 67.”  If not, par 68 should be deleted.

50                  Paragraph 69, as I understand it, is no more than an allegation that S.J. Higgins is vicariously liable for the conduct of Sheedy and Zahopoulos attributed to those respective employees in pars 65 to 67 and the particulars thereto.  If that understanding be correct, the paragraph is not embarrassing and should be allowed to stand. 

51                  Paragraph 70 of the fresh statement of claim alleges in a conclusory way that;

‘By reason of the matters pleaded in paragraphs 61 to 69 above S.J. Higgins breached s. 298K(2) of the Act.’

52                  It is true, as Counsel for the third and fourth respondents has contended, that par 70 “rolls up” several allegations in one and should refer to those several contraventions “in the quadruple alternative.”  I doubt the necessity for including par 70 at all but the objection can be overcome by amending it to read;

‘By reason of one or more of the matters pleaded in paragraphs 61 to 69 above, S.J. Higgins contravened s 298K(2) of the Act.’

Conclusion

53                  It follows, for the reasons explained above, that in addition to the orders made on 11 August 2005 there should be an order striking out the proceeding as against Sheedy.  As well, I shall grant leave to the applicants to file and serve within 21 days a further amended application and a further amended statement of claim conforming generally with the fresh application and the fresh statement of claim but further amended to take account of the striking out of the proceedings as against Sheedy and of these reasons.  In the interests of economy of space and to make them more readily intelligible those documents should not preserve earlier paragraphs which are no longer relied on but have been struck through.  I shall adjourn the directions hearing to 11 August 2006 and reserve liberty to apply.

Associate:

Dated:              16 June 2006