FEDERAL COURT OF AUSTRALIA

J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Limited [2014] FCA 581

THE COURT ORDERS THAT:

1.    The parties file by 4.30pm on 5 June 2014 minutes of orders to give effect to these reasons or, in default of agreement, file by 10.00am on 6 June 2014 written submissions in support of the orders for which they contend to give effect to these reasons.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The third respondent (Mr Beck) and the fourth respondent (Mr Taylor) applied on 4 February 2014 to have the proceeding against them summarily dismissed under s 31A of the Federal Court Act 1976 (Cth) or, failing that, for certain paragraphs of the applicant’s claim to be struck out under r 16.21 of the Federal Court Rules. The interlocutory applications were made in relation to an amended statement of claim dated 20 January 2014 in which the applicant (“Vaughan”) alleged both primary and accessorial liability against Mr Beck, Mr Taylor and the second respondent (Mr Macdonald). The interlocutory application by Mr Beck and Mr Taylor was part heard on 21 February 2014 but was adjourned to enable Vaughan to consider whether to prepare, and, if so advised, to seek leave to file, a proposed further amended statement of claim. A proposed further amended statement of claim dated 26 February 2014 was prepared and leave was sought by Vaughan to file it when the hearing of the interlocutory application resumed on 28 February 2014. The proposed further amended statement of claim, however, sought to make amendments which affected the pleading against the first respondent (“Becton”) and Mr Macdonald as well as Mr Beck and Mr Taylor. Becton had not appeared at the interlocutory hearings on 21 and 28 February because they had not previously raised issues concerning Becton directly. Mr Macdonald had appeared at the earlier hearings but counsel for Mr Macdonald on 28 February 2014 complained that the then proposed further amended statement of claim (which had been received by email on Wednesday afternoon before the hearing on Friday morning) raised further and new issues against Mr Macdonald that his legal adviser needed time to consider. As a consequence, the hearing on 28 February was adjourned again and was relisted for 31 March 2014.

2    On 3 March 2014 Vaughan applied to file a different proposed further amended statement of claim rather than the proposed pleading dated 26 February which had been before the Court on 28 February. On 7 March Mr Macdonald made his application to have struck out the amended statement of claim dated 20 January 2014. Mr Beck, Mr Taylor and Mr Macdonald also opposed Vaughan’s application for leave to file the proposed further amended statement of claim of 3 March 2014 (the version dated 26 February 2014 having been superseded without formal decision). Becton also appeared by senior and junior counsel on 31 March 2014 but sought no orders. There are, therefore, formally before the Court, both (a) interlocutory applications (i) by Mr Beck and Mr Taylor for summary dismissal of the proceedings under s 31A and (ii) by Mr Beck, Mr Taylor and Mr Macdonald to have struck out under r 16.21 parts or all of the amended statement of claim, as filed, dated 20 January 2014, and (b) an application by Vaughan for leave to file a proposed further amended statement of claim dated 3 March 2014 which is opposed by Mr Beck, Mr Taylor and Mr Macdonald. The course adopted at the hearing on 31 March, after hearing argument about the process to follow, was to hear first the applications against the existing amended statement of claim (notwithstanding that Vaughan sought to substitute it with another and had abandoned the direct claims against Becton’s directors) and then to consider whether Vaughan should be given leave to file the proposed further amended statement of claim dated 3 March 2014. The fundamental issue in dispute in each instance was whether Vaughan’s existing or proposed pleadings disclosed a cause of action against Mr Beck, Mr Taylor or Mr Macdonald and, therefore, the issues overlap considerably as between the directors’ applications, on the one hand, and Vaughan’s application on the other.

3    Vaughan, is the trustee of a superannuation fund which purchased shares in Becton between 13 May 2008 and 21 November 2008. On 31 August 2006 Becton made a statement to the Australian Stock Exchange and a media release which were said to be actionably misleading or deceptive, and which were also said not to have been corrected as required by law.

4    The amended statement of claim, as filed, had alleged both primary and accessorial liability against Becton’s directors, namely, Mr Beck, Mr Taylor and Mr Macdonald. Primary liability had been alleged against Mr Beck and Mr Macdonald in paragraph 95, and against Mr Taylor in paragraph 96, of the amended statement of claim. The primary claims against Mr Beck, Mr Taylor and Mr Macdonald in paragraphs 95 and 96, however, were abandoned by Vaughan during the course of the interlocutory hearings. It may, nonetheless, be useful to set them out as part of the context of the interlocutory dispute if only because Mr Beck and Mr Taylor seek judgment on those claims under s 31A. Paragraphs 95 and 96 had stated:

95.    Further or alternatively, by reason of the matters referred to in paragraphs 3-5 inclusive, 81-90 inclusive, 54.1, 58, 61, 66.1, 72 and/or alternatively, 78 hereof each of MacDonald and Beck engaged in misleading and deceptive conduct in contravention of section 1041H(1) and/or alternatively, section 1041E and/or alternatively, section 1041F of the [Corporations Act 2001 (Cth)].

96.    Further or alternatively, by reason of the matters referred to in paragraph 3-5 inclusive, 82-90 inclusive, 66.1, 72 and/or 78 hereof Taylor engaged in misleading and deceptive conduct in contravention of section 1041H(1) and/or alternatively, section 1041E and/or alternatively, section 1041F of the CA.

In each case the allegation against the directors had been that they had each “engaged in” wrongful conduct although no particulars were given of the allegation other than, of course, such as may have been incorporated by the other paragraphs referred to. Those paragraphs, however, did not allege, or provide particulars of, wrongful conduct “engaged in” by Mr Beck, Mr Taylor or Mr Macdonald. The matters contained in the paragraphs which were referred to in paragraphs 95 and 96, alleging direct liability, may have been relevant to any liability on the part of Mr Beck, Mr Taylor and Mr Macdonald, but failed to make any affirmative allegation of fact or of inference of them having been “engaged in” the contraventions claimed against them. Paragraphs 3, 4 and 5 pleaded that, amongst other things, Mr Beck, Mr Taylor and Mr Macdonald were directors of Becton during relevant periods and that the former was the Chairman of the Board of Becton, that Mr Taylor was the Finance Director of Becton and that Mr Macdonald was the Chief Executive Officer of Becton. Paragraph 54.1 pleaded that the statements made to the Australian Stock Exchange were misleading or deceptive, or were likely to mislead or deceive, and constituted misleading or deceptive conduct in contravention of a provision of the Corporations Act 2001 (Cth). Paragraph 58 pleaded that Becton had engaged in conduct which was misleading and deceptive, as did paragraphs 61, 66.1, 72 and 78. None of these paragraphs, however, made any affirmative allegation of fact or inference of Mr Beck, Mr Taylor or Mr Macdonald having engaged in the relevant conduct. The direct claims against Mr Beck and Mr Taylor having been abandoned, there should be judgment in their favour on those claims. The direct claims do not appear to have any foundation and were consciously abandoned after deliberation in the context of an application for judgment under s 31A.

5    The accessorial claims, which were not abandoned, against Mr Beck, Mr Taylor and Mr Macdonald are (as between the three individuals) different in detail but were broadly similar. In each case it was pleaded that the director was accessorily liable because he was “involved in” the wrongful conduct alleged against Becton. Vaughan alleged, in paragraph 91, that Mr Beck and Mr Macdonald were accessorily liable because they had been “involved in” the production of the statements to the Australian Stock Exchange and the release to the media. Vaughan alleged, in paragraph 93, that Mr Taylor was accessorily liable for Becton’s alleged breaches of its statutory duties because he was “involved in” the contravention. The “involvement” is pleaded to include aiding, abetting, counselling, procuring and inducing, as well as being directly or indirectly knowingly concerned or conspiring with others. The accessorial liability alleged against Mr Beck and Mr Macdonald pleaded in paragraph 91 was:

91.    By reason of the matters referred to in paragraph 3 to 5 inclusive hereof and paragraphs 81 to 90 inclusive hereof MacDonald and Beck was or were persons involved in each of the contraventions by Becton of sections 1041E, 1041F and 1041H of the CA and/or alternatively, sections 12DA(1) and 12DC(1)(b) of the ASIC Act and/or alternatively section 52 of the TPA and/or alternatively, section 42 of the FTA NSW, and/or alternatively, section 9 of the FTA Vic (Becton CA/ASC Act/TPA/FTA Contraventions) because each of them:

91.1    aided, abetted, counselled or procured the Becton CA/ASIC Act/TPA/FTA Contraventions; and/or

   91.2    induced the Becton CA/ASIC Act/TPA/FTA Contraventions; and/or

91.3     directly or indirectly, knowingly was or were concerned in, or party to, the Becton CA/ASIC Act/TPA/FTA Contraventions; and/or

91.4    have conspired with others to effect the Becton CA/ASIC Act/TPA/FTA     Contraventions;

within the meaning of section 79 of the CA and/or 75B of the TPA and/or alternatively, section 61 of the FTA NSW, and/or alternatively, section 145 of the FTA Vic.

Paragraph 93 was in similar terms except that the person identified in the paragraph was Mr Taylor instead of Mr Beck and Mr Macdonald, and that paragraph 81 was not amongst the paragraphs referred to. Both paragraphs pleaded that the individuals were involved in the contraventions “by reason of” the matters referred to in other paragraphs “because” they had done something which came within the words of the legislation.

6    Mr Beck and Mr Taylor maintain that no cause of action is pleaded against them and that they are entitled to summary judgment. Sections 31A(2) and (3) provide:

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

[…]

In exercising the power under s 31A the Court is not concerned with deficiencies in pleadings (Spencer v Commonwealth of Australia (2010) 241 CLR 118, [23]), but with substance and not form: Shumack v Commonwealth of Australia [2009] FCA 775 at [14]; Habib v Commonwealth of Australia (No 2) (2009) 175 FCR 350. The enactment of the section lowered the bar for obtaining summary judgment (Spencer v Commonwealth of Australia (2010) 241 CLR 118, [53]-[56]; White Industries Aust Pty Ltd v Commissioner of Taxation (2007) 160 FCR 298 at [51]) and permits summary judgment where an applicant fails to identify a valid claim on the material before the Court (Dowling v Commonwealth Bank of Australia [2008] FCA 59 at [30]). There is much to be said in support of an increased emphasis in modern litigation on summary disposal of proceedings (see Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372 at [125]) but caution must be exercised before exercising the power in s 31A, especially where evidence can give colour and content to allegations which are best left to be heard and determined at trial (Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6]), and, perhaps, where a cause of action is dependent upon inferences.

7    In Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 Sundberg J said at [37]:

The principles governing the operation of s 31A of the Act were canvassed in detail by Lindgren J in White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 (White Industries) and Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 (Boston). In White Industries 160 FCR at [59], Lindgren J considered that a claim requires “real” as opposed to “fanciful” or “merely arguable” prospects in order for it to have reasonable prospects of success as required by s 31A. Justice Rares in Boston 236 ALR at [45] was of the view that, unless there are no real issues of fact – such that “only one conclusion can be said to be reasonable” – summary judgment (or dismissal) ought not be given pursuant to s 31A. The Full Court has recently considered the summary judgment standard in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ) (Jefferson Ford). Although different views were taken as to the precise operation of s 31A, the following principles appear to have been endorsed:

•    In applying s 31A, the court does not conduct fact finding but must assess the strength of the allegations made by reference to the pleadings, affidavits and any other evidence adduced, in order to determine whether the claim is sufficiently strong to warrant a trial: see Jefferson Ford 167 FCR at [23] (Finkelstein J), [74] (Rares J) and [130] (Gordon J); see also Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257 at [28] (Emmett J); Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J). Ultimately, the court must consider whether there are any real, as opposed to fanciful, issues of fact or law that require proper determination at a trial.

•    In assessing whether there are reasonable prospects of success, the court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: see Jefferson Ford 167 FCR at [132] (Gordon J). Moreover, where the evidence on a summary judgment application is of an ambivalent character, there will be a real issue of fact and therefore reasonable prospects of success for the purposes of s 31A: see Boston 236 ALR at [45]; Jefferson Ford 167 FCR at [73] (Rares J) and [130] (Gordon J).

•    The moving party bears the onus of persuading the court that its opponent has no reasonable prospects of success: see Jefferson Ford 167 FCR at [127] (Gordon J); Boston 236 ALR at [45]. However, where the moving party establishes a prima facie case for summary judgment, the opposing party must be able to point to “specific factual or evidentiary disputes that make a trial necessary”: see Jefferson Ford 167 FCR at [127] (Gordon J).

•    As s 31A requires in effect a prediction as to the outcome of a claim, the court should be more reluctant to summarily dismiss a claim where real questions of fact and credit arise. In those cases, the court will not have all material evidence before it until trial, the credit of important witnesses will not have been tested and it will as a consequence be very difficult if not impossible to fairly assess the prospects of the claim: see Jefferson Ford 167 FCR at [20] (Finkelstein J); Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] (Gilmour J).

The case of Mr Beck and Mr Taylor for relief under s 31A is that there are fundamental gaps in the accessorial claims in the amended statement of claim which cannot be cured.

8    Mr Beck and Mr Taylor sought, in the alternative to their claim under s 31A, and Mr Macdonald also sought, to have certain paragraphs struck out under r 16.21 on the grounds that they failed to disclose a cause of action against them. Mr Beck and Mr Taylor sought to have struck out paragraphs 80 to 97 in so far as those paragraphs made allegations against them, and Mr Macdonald sought to have struck out the entire amended statement of claim or alternatively paragraphs 35, 41, 44, 56 to 65 (inclusive), 68 to 92 (inclusive) and paragraph 97 in so far as those paragraphs made allegations against him. The power to strike out a pleading on the basis of disclosing no reasonable cause of action is to be exercised only in a plain and obvious case and requires establishing that the statement of claim does not disclose a reasonable cause of action by showing that the applicant’s case is so untenable that it cannot possibly succeed: General Steel Inc v Commissioner for Railways (NSW) (1969) 112 CLR 125, 128-130. A strike out leaves a proceeding on foot and a party may be given leave to replead unless leave would be futile because the cause of action is unarguable: Nulyarimma v Thompson (1999) 96 FCR 153 [208]. In White Industries Pty Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 Lindgren J said at [47] of the precursor to r 16.21:

The central concern of both O 20, r 2(1)(a) and s 31A is different from that of O 11, r 16, which empowers the Court to strike out pleadings. For example, evidence may disclose that a person has or may have a “reasonable cause of action” or “reasonable prospects of success”, yet the person’s pleading does not disclose this. In such a case O 11, r 16 empowers the Court to strike out the pleading but O 20, r 2(1)(a) would not empower the Court to order a stay or dismissal, and s 31A(2) would not empower the Court to give judgment for the respondent against the applicant. A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts. [See Spencer v Commonwealth (2010) 241 CLR 118 at [23].]

The applications for summary judgment under s 31A and for striking out paragraphs of the statement of claim are different in significant respects but do overlap. An application under s 31A, in contrast to a strike out application, permits consideration of matters outside of the pleadings: Imobiliari Pty Ltd v Opes Prime Stockbroking Ltd (2008) 252 ALR 41 at [6].

9    The pleadings against Mr Beck and Mr Taylor is that they were “involved in” the contraventions which are pleaded against Becton. That involvement, as previously mentioned, is said to take the form of aiding, abetting, counselling, procuring, being knowingly concerned and conspiring with others, but no facts of any of these are pleaded or found in the particulars. The majority in Yorke v Lucas (1985) 158 CLR 661 said at 667 (and see Brennan J at 673) that the term “involved in” as used in s 75B of the Trade Practices Act 1974 (Cth) was derived from analogous concepts in the criminal law and “should be given [no] new or special meaning”. In Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (in liq) (2008) 252 ALR 41, Finkelstein J said at [13]:

To establish secondary liability … it is settled that in order for a defendant to be “knowingly concerned” in another party’s wrongdoing, actual knowledge of the essential facts is required: Yorke v Lucas (1985) 158 CLR 661 at 667–71; Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 at [9]. With respect to conduct, the defendant must have done some positive act amounting to participation: Sent v Jet Corp of Australia Pty Ltd (1984) 2 FCR 201 at 207–8 [Emphasis added; see also ASIC v Narain (2008) 66 ACSR 688].

It was submitted for Mr Beck and Mr Taylor that what the amended statement of claim lacked, and could not provide, was the pleading of facts alleging that the individuals were involved in Becton’s contravention. It was submitted, for example, that there was absent a sufficient pleading of actual knowledge (not constructive knowledge: see ASIC v Adler (2002) 168 FLR 253 at 342-3; Compaq Computer Australia v Merry (1998) 157 ALR 1 at 4-5) or of a positive act amounting to participation whether by asserted fact or by identification of the facts from which relevant inferences were to be drawn.

10    Paragraphs 91 and 93, which plead the accessorial liability of Mr Beck, Mr Taylor and Mr Macdonald, begin by referring to paragraphs 3 to 5. Those paragraphs identify the parties and their position in Becton. Mr Macdonald was a Chief Executive Officer of Becton at the time. Mr Beck was the Chairman of Becton and Mr Taylor was the Finance Director of Becton. Paragraph 80 is not directly referred to in paragraphs 91 and 93 (although the particulars to paragraph 80 – but not the pleading in paragraph 80 – are incorporated by reference in the particulars to paragraph 80), but paragraph 80 may plead matters potentially relevant to the accessorial liability alleged against Mr Macdonald and Mr Beck. In paragraph 80.1 it is alleged against Mr Macdonald that he controlled all of Becton’s communications and was assisted in that by the company secretary and communications manager in carrying out his responsibility. In paragraph 80.2 it was alleged that Mr Macdonald and Mr Beck were the only two officers allowed to authorise the release of material information to the market. In paragraph 80.3 it was alleged that the procedures which had been developed by Becton to comply with its obligations included the immediate reporting of any matter which could potentially have a material effect, via established reporting lines, to Mr Macdonald or to the company secretary. In paragraph 80.4 it was alleged against Mr Macdonald that all media releases had to be referred to him for approval prior to any release. The particulars provided to this paragraph, however, refer only to Becton’s practice, procedure and policy in relation to complying with all of its obligations under the Australian Stock Exchange listing rules and the Corporations Act 2001 (Cth) as recited in the Becton 2006 Annual Report at page 31, the Becton 2007 Annual Report at page 21 and the Becton 2008 Annual Report at page 22.

11    Paragraph 81 pleads against Mr Macdonald and Mr Beck (but not Mr Taylor) that they were responsible for or involved in the drafting, approval, authorisation and, or alternatively, the release of the statement to the Australian Stock Exchange and to the media. The particulars to this paragraph refer to the particulars to paragraph 80 which, as mentioned, refer only to Becton’s practice, procedure and policy in relation to complying with all of its obligations. No particulars from that practice, procedure or policy were identified to establish responsibility or involvement, or to establish an inference in the step of establishing responsibility or involvement, by Mr Macdonald or Mr Beck in the conduct referred to in paragraph 81. Nothing is pleaded in that paragraph, nor found in the particulars to that paragraph, that might be aiding, abetting, counselling, procuring, inducing, being knowingly concerned or constituting the material facts of a conspiracy.

12    The pleadings in paragraph 82 to 90 are common to each of Mr Beck, Mr Taylor and Mr Macdonald and concern the various roles each held in companies other than Becton. The paragraphs also refer to the signing by the directors of various agreements. Critically, however, none of the paragraphs relates to the allegations of drafting, approval or authorising by Mr Beck, Mr Taylor or Mr Macdonald of the statement to the Australian Stock Exchange or its release to the media.

13    In these circumstances Mr Beck and Mr Taylor have established that the amended statement of claim does not disclose a cause of action against them. Indeed, the case pleaded against Mr Taylor is weaker than that pleaded against Mr Beck because in the case of Mr Taylor there was no pleading such as that found in paragraph 81 against Mr Beck (albeit unparticularised) of being “responsible for, or involved in” the drafting, approval, authorisation and, or alternatively, the release of the statement to the Australian Stock Exchange and to the media. The position of Mr Macdonald may be different. The amended statement of claim pleaded facts against Mr Macdonald going to his involvement in Becton’s statement to the Australian Stock Exchange and its release to the media. Paragraph 80.1, in particular, had pleaded that Mr Macdonald controlled all of Becton’s communications. Paragraph 80.2 had pleaded that he and Mr Beck were the only two officers allowed to authorise the release of material information to the market. Paragraph 80.4 had pleaded that all media releases had to be referred to Mr Macdonald for approval prior to the release. Paragraph 80.3 had pleaded that Becton had procedures to comply with its obligations which included the establishment of reporting lines to Mr Macdonald. In those circumstances the paragraphs pleading liability against Mr Macdonald are materially different from those pleaded against Mr Beck and Mr Taylor. However the pleadings against all three directors were submitted to be fatally flawed because they did not plead a positive act, or a relevant duty that might remove the need to plead a positive act, sufficient to establish involvement. This complaint will be considered below in the context of Vaughan’s application for leave to file the proposed further amended statement of claim dated 3 March 2014 but, assuming the complaint established, the proper course would be to strike out the relevant paragraphs in the pleadings against the directors rather than to give summary judgment under s 31A.

14    Written submissions were filed for Vaughan on 18 February 2014 and oral submissions were made at the first hearing of the interlocutory application concerning the sufficiency of the cause of action as pleaded in the amended statement of claim. The written submissions, which had been filed on 18 February 2014, concerning the allegations of accessorial liability against Mr Beck and Mr Taylor, said:

8    The applicant alleges that Beck was involved in each of these breaches. The basis for those allegations are the following pleaded facts:

(a)    That Beck was a director and the chairman of Becton at all relevant times;

(b)    That Beck was one of two company officers who had responsibility for approving statements by Becton to the Australian Stock Exchange;

(c)    That Beck was a director of three different companies which were signatories to agreements which affected the company’s interest in the land at Byron Bay and himself signed a number of those agreements (including in a personal capacity).

9    The applicant alleges that Taylor was involved in Becton’s breaches in not disclosing the arrangements relating to the Byron Bay land at some point after the ASX statement was made. The basis for those allegations are the following pleaded facts:

(a)    That Taylor was a director of Becton at all relevant times;

(b)    That Taylor was a director of two of the companies which were parties to the agreements affecting the land at Byron Bay and himself signed three of those agreements on behalf of the companies.

10    In both cases, the precise detail of the respondents’ involvement and knowledge of the misleading conduct at Becton cannot be pleaded in any further detail. However, the question of whether the pleaded conduct amounts to “knowing involvement” (or any of the other expressions in sections 75B of the Trade Practices Act 1974 (Cth)) is one that cannot be resolved without discovery and evidence in relation to this question.

What the submissions, like the pleaded case, failed to do was to identify the factual elements said to constitute the knowing involvement of the directors in Becton’s conduct. It may be that the involvement is to be inferred from other facts but the inferences to be relied upon as material facts need to be pleaded to the extent that they are essential elements in the cause against the directors. Indeed, it seemed to be accepted by Mr D’Arville of counsel, who appeared for Vaughan at the hearings on 21 and 28 February, that “the question of whether the pleaded conduct amounts to knowing involvement or any of the other expressions in s 75B of the Trade Practice Act 1974 (Cth) is one that cannot be resolved without discovery and evidence in relation to this question”. Vaughan had, however, sought pre-trial discovery and Mr Cutts, the solicitor for Mr Beck and Mr Taylor, swore an affidavit detailing his correspondence with Mr Mark Korda of Korda Mentha (who were the receivers appointed to Becton), and deposed to his belief that there are no further documents bearing upon the matters which had been sought by Vaughan under the Court order before the commencement of the proceedings. Mr Cutts also deposed to having had direct instructions from Mr Beck and Mr Taylor concerning the allegations alleged against them and of having been told that Mr Beck and Mr Taylor do not have any documents in their possession relating to any involvement by them in the drafting, approving or authorisation of the statements made to the Australian Stock Exchange or in directing that the statement be provided to the Australian Stock Exchange or be made available to the media. Mr Cutts also deposed to his instructions from Mr Beck and Mr Taylor that they had each denied each of the allegations which had been made in relation to them in paragraphs 81 to 97 of the amended statement of claim.

15    Mr Bannon SC, who appeared with Mr D’Arville for Vaughan at the hearing on 31 March 2014, articulated the case that Vaughan seeks to make against Mr Beck and Mr Taylor as being fundamentally that their involvement in the contraventions was to be inferred from various facts and circumstances. Mr Bannon submitted that the amended statement of claim did allege facts from which the relevant inferences could be drawn and pointed to various allegations which he submitted permitted inferences to be drawn. A litigant should be told with sufficient precision to meet a claim which facts are alleged against the litigant including (where material to the claim) which inferences a court will be asked to draw as the basis of liability and which facts are said to justify the inferences. However, in its current form, the amended statement of claim does not link the inferences which are said to base the actional allegations with each of the directors nor does it identify what facts are said to warrant the inferences which need to be drawn. That conclusion warrants the striking out of paragraphs from the statement of claim but not summary judgment under s 31A. The power in s 31A to order summary judgment should not be exercised where a claim has not been pleaded as well as it could have been. In such circumstances, caution suggests that striking out the pleadings is the better course to adopt. That course is suggested also by an evaluation of the strength of the evidence for Mr Beck and Mr Taylor. Neither has given direct (or tested) evidence from which a confident finding could be made that the case to be made against them must fail. The evidence of Mr Beck and Mr Taylor, through Mr Cutts, is indirect, general, hearsay and untested. In those circumstances it would not be appropriate to give judgment at this stage against Vaughan but to strike out the paragraphs from the statement of claim against Mr Beck and Mr Taylor. It might not be sufficient to strike out the pleadings against Mr Macdonald but the fate of the pleading against him is best dealt with in the context of Vaughan’s application for leave to file the proposed further amended statement of claim dated 3 March 2014.

16    It was contended for Mr Beck, Mr Taylor and Mr Macdonald that Vaughan should not be given leave to file the proposed further amended statement of claim because it also failed to disclose a cause of action. Written submissions filed on behalf of Vaughan explained that the amendments for which leave was sought were largely “for the purpose of pleading in more detail the basis upon which it was said that Mr Macdonald, Mr Beck and Mr Taylor were persons “involved” in Becton’s contraventions”. The claims against Becton were that the ASX Statement published on 31 March 2006 and released to the media was misleading and that Becton engaged in misleading conduct by not correcting what were said to be the misleading matters in the ASX Statement after it was made and in not disclosing a later transaction in relation to the land which had been the subject of the ASX Statement. The proposed further amended statement of claim was said in the submissions for Vaughan to “set out in as much detail as is possible at this stage the basis upon which it is said that Mr Macdonald, Mr Beck and Mr Taylor (referred to collectively as the directors) were each involved in these matters”. The allegation of Mr Macdonald’s involvement was in a substantially redrawn paragraph 91, that against Mr Beck in a new paragraph 92H and that against Mr Taylor in a substantially redrawn paragraph 93. The directors contended, however, that the proposed further amended statement of claim did not disclose a cause of action.

17    The form of drafting adopted in the proposed further amended statement of claim does not assist in determining precisely what is pleaded against each of the directors. The pleading that Mr Beck was a person “involved” in Becton’s breaches in paragraph 92H may serve as an illustration of the difficulties created by the form of drafting. Paragraph 92H in the proposed further amended statement of claim said:

Beck was a person involved (within the meaning of s 79 of the CA and/or s75B of the TPA and/or alternatively, s 61 of the FTA NSW, and/or alternatively, s 145 of the FTA Vic) in each of the Becton CA/ASIC Act/TPA/FTA Contraventions because he was directly or indirectly, knowingly concerned in, or party to those contraventions.

Particulars

In relation to each of the Becton CA/ASIC Act/TPA/FTA Contraventions, the applicant repeats paragraph 81 and the particulars thereto.

Further, as set out in paragraph 92A-92G hereof, Becton knew of each of the following essential elements of the Becton CA/ASIC Act/TPA/FTA Contraventions relating to the Non-Disclosures and the Taylorise Sale Agreement Non-Disclosure:

(A)    That the ASX Statement had been made and its terms (paragraph 92A hereof);

(B)    The ASX Statement was misleading, deceptive, likely to mislead or deceive or false in a material particular (paragraph 92B hereof);

(C)    That Becton was required to notify the ASX of information which was not generally available and which a reasonable person would expect to have a material effect on Becton’s share price (paragraph 92D hereof);

(D)    That the matters referred to in paragraph 92B which made the ASX Statement misleading, deceptive, likely to mislead or deceive or false were matters that a reasonable person would expect to have a material effect on Becton’s share price (paragraph 92E hereof);

(E)    that the Taylorise Sale Agreement had been executed and its terms (92C hereof);

(F)    that the terms of the Taylorise Sale Agreement were matters that a reasonable person would expect to have a material effect on Becton’s share price (paragraph 92F hereof);

(G)    that between August 2006 and April 2008, Becton did not provide a statement to the ASX which removed the misleading nature of the ASX statement (paragraph 92G hereof);

(H)    that between January 2007 and April 2008, Becton did not provide a statement to the ASX which disclosed the terms of the Taylorise Sale Agreement (paragraph 92G hereof).

Beck was under a duty to take steps to ensure that Becton disclosed to the ASX the matters in paragraph 92B and the terms of the Taylorise Sale Agreement (paragraph 92GA hereof) but did not do so (paragraph 92GB hereof).

In considering a pleading in this form it is easy for the particulars to lose sight of the material facts which were alleged and which they are intended to particularise. The material facts alleged are directed to the “involvement” of Mr Beck in the conduct alleged against Becton. However, it is not clear how many of the particulars which are provided could bear upon Mr Beck’s “involvement” in contrast to something else. Some of the matters said to be particulars do not readily appear to bear that character, such as, for example, the statement in (B) that the ASX Statement was “misleading, deceptive, likely to mislead or deceive or [was] false in a material particular”. Others of the matters said to be particulars are ambiguous, such as the reference in (D) to the “matters referred to in paragraph 92B” which in turn contained allegations of conclusions in law and specific instances of alleged knowledge. In that respect it is difficult to know which of the matters referred to in paragraph 92B were intended to be those “which made the ASX Statement misleading, deceptive, likely to mislead or deceive or [were] false [and that, therefore, they] were matters that a reasonable person would expect to have a material effect on Becton’s share price”. Some of the sentences in the particulars may also be incomplete, such as that in (E) where it is not clear whether some words were missing after the words “and its terms” or whether those words were intended to refer back to the opening words of the particulars so as to describe what appears in (E) as one of the essential elements Mr Beck is said to have known (although if it be the latter it is not clear how the terms of the Taylorise Sale Agreement can be read as one of the essential elements of what is said to be either the contraventions relating to the non-disclosures or to the Taylorise Sale Agreement non-disclosure). The form of pleading employed also fails to make clear what relevance, and role, other pleaded facts are said to have in respect of the alleged involvement.

18    A statement of claim must disclose a cause of action and cannot be allowed to stand on the basis that a cause will emerge in the future. Counsel for Vaughan submitted that it does not yet know all of the facts necessary to establish its cause of action but that evidence is likely to emerge in support of its claim in discovery or at trial. That, however, misconceives the complaint about the pleading, which is not that there may not be sufficient evidence to emerge in the future but that the pleaded case does not disclose a cause of action. The problem appears to lay in the fact that Vaughan’s case against the directors is essentially based upon inferences but that the pleading does not clearly enough identify the inferences it will seek to have drawn and the facts which Vaughan will contend permits the inferences to be drawn. The importance of inferences to Vaughan’s case, and some of the facts upon which those inferences are said to be permitted, can be seen from the oral submissions by senior counsel who appeared for Vaughan at the hearing on 31 March 2014. Mr Bannon QC said:

And, see, like – I’ve got to say there’s a bit of dÉjÀ vu about this. I’ve been down this road before. ASIC v James Hardie where you have a press release which is issued which seems, at one view, materialises from a company which – and everyone denies they had any involvement with. I mean, in the ordinary course of human affairs, that doesn’t happen, and it certainly doesn’t happen in a close company like this, where each one of these respondents had a very direct interest in knowing what was being announced to the market. They are, as appears in the latest material – they were substantial shareholders. They sold off a bunch of shares in November 2006 shortly after the ASX announcement.

The proposition that those individuals did not know what was being said to the market at a time when they’re plainly interested in their shares is an inference which we respectfully submit would not be withdrawn at a final hearing. But in terms of an interlocutory hearing – an interlocutory hearing where inferences are to be drawn favourably for the applicant in these sorts of cases, and they don’t come along and subject themselves to cross-examination, and say, “Well, Mr Beck was here, for example. You made $14 million on your sale of shares,” I think it was. I can’t remember what the figure is; I will take what’s in there. “Are you telling this court that you – that on what appears to be 25 per cent of your – or the company’s property interests,” apart from the fact it was false because it was only half the interest, “you didn’t know what was going on? Where was the managing director at this stage? How often were you going to the office?”

Vaughan should not be shut out from its cause of action merely because its case depends upon inferences. It is, however, incumbent on Vaughan to file a statement of claim which discloses a cause of action on the facts as they are known to Vaughan. That may require Vaughan to identify more clearly the inferences it will seek to have established at trial as material facts and the factual foundation upon which those inferences, in turn, are to be drawn.

19    Inferences require facts from which an inference is capable of being drawn. That requires that the facts relied upon bear probatively upon those inferences which are sought to be drawn. In Holloway v McFeeters (1956) 94 CLR 470 Dixon CJ said at 477 (albeit on dissent on the outcome of the case) in the context of a motor vehicle negligence case:

What is required is a basis for some positive inference involving negligence on the part of the driver as a cause of the deceased’s death. The inference may be made only as the most probable deduction from the established facts, but it must at least be a deduction which may reasonably be drawn from them. It need not be an inference as to how precisely the accident occurred, but it must be a reasonable conclusion that the accident in one or another occurred through the lack of due care onto the part of the driver and not otherwise.

Williams, Webb and Taylor JJ in a joint judgment in that case referred at 480-1 to the earlier decision of the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 where it had been said:

[Y]ou need only circumstances raising a more probable inference in favour of what is alleged … where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture …. All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. [Citation omitted].

Counsel for Vaughan accepted that for the purpose of determining whether the amendment should be allowed the Court should determine whether the inferences pleaded were “reasonable, rather than merely ‘plausible’”.

20    The accessorial liability alleged against Mr Beck is in paragraph 92H of the proposed further amended statement of claim quoted above. In that paragraph Mr Beck is alleged to be accessorily liable for the drafting, approval, authorisation and, or alternatively, the release of the statement of the Australian Stock Exchange. The particulars, in form, limit the basis of the allegation of Mr Beck’s involvement to (a) the fact (by reference in the particulars to paragraph 81) of being a director and having responsibility for the drafting, approving and authorising of statements like that made to the Australian Stock Exchange and released to the media by Becton, (b) knowledge of certain matters (the second lengthy paragraph in the particulars to paragraph 92H), and (c) the duty to take steps to ensure that Becton disclosed to the ASX the matters specified in the third paragraph in the particulars to paragraph 92H. The inference of Mr Beck’s involvement is, therefore, sought to be established from the combination of the position Mr Beck had, the knowledge Mr Beck either had or can be assumed to have had, and a particular duty to disclose to the Australian Stock Exchange certain matters. It was submitted for Mr Beck that concluding that Mr Beck had something to do with the preparation or release of the ASX Statement was not a reasonable “assumption or inference” because he was merely authorised (rather than obliged) to release material information to the Australian Stock Exchange. It was also submitted that the conclusion that he had something to do with the preparation or release of the ASX Statement was unlikely given that Mr Macdonald’s name, not that of Mr Beck, appeared in the ASX Statement and that Becton’s 2007 Annual Report expressed Mr Beck’s role (as chairman) in authorising the release of information to the market as being only “where necessary”. However, the combination of Mr Beck’s position, knowledge and duty is arguably sufficient for a “reasonable and definite inference” to be drawn of Mr Beck’s involvement in light of the surrounding evidence bearing upon the three matters particularised. It may be, in other words, possible for a reasonable and a definite inference to be drawn, on the test in Briginshaw v Briginshaw (1938) 60 CLR 336 on the balance of probabilities, that Mr Beck was involved in the statements to the Australian Stock Exchange and its release to the media given his position, the importance of the statement, and the particular duties he had. The material facts in the pleading are not sufficient to form a concluded view either way, but are sufficient to establish a cause of action.

21    The same is true of the pleading against Mr Taylor. The accessorial liability alleged against Mr Taylor is in a substantially redrawn paragraph 93 which is, in essence, generally to the same effect as paragraph 92H against Mr Beck. Mr Taylor was not the chairman of Becton and he was not one of the people permitted to authorise the release of information to the public, but the pleading against him in the redrawn paragraph 93 also bases Vaughan’s claim against him on the combination of his position, knowledge and duty. The case against him may not rely upon the ability to authorise the release of public statements but it is not clearly without foundation. The pleading against Mr Macdonald in the proposed further amended statement of claim is potentially stronger than the claims against Mr Beck and Mr Taylor because the pleading against Mr Macdonald includes specific pleadings of control of all of Becton’s communications.

22    The directors contend, however, that the proposed further amended statement of claim suffers from a fatal flaw in its failure to allege “some positive action which might be said to constitute the “involvement in” Becton’s alleged contraventions”. In Sent v Jet Corp of Australia Pty Ltd (1984) 2 FCR 201, Smithers J (with whom Sweeney J agreed) observed at 207-8:

However, Mr Graham for Jet Corporation contended that, from the facts alleged, the inference might properly be drawn that Sent and Forshaw were persons "involved" in the contraventions. He said that the relevant contraventions were constituted by misrepresentations by Petres, Westwind and Dipson designed to induce Jet Corporation to purchase the relevant assets for the consideration stated in the relevant sales agreements. He pointed out that it was in the interests of Sent and Forshaw that Petres, Westwind and Dipson should make a successful sale, and that otherwise they would be unable to meet their liabilities to Sent and Forshaw. He contended that if, as alleged in the Statement of Claim, Sent and Forshaw knew that Petres, Westwind and Dipson, for the purpose of making such a sale, proposed to misrepresent to Jet Corporation the value of the assets and stood silently by while they did so, that conduct would constitute involvement in the contravention. But it is clear that to be involved in a contravention consisting of misleading and deceptive conduct it is necessary not only that the person concerned should know that a party proposed to engage in a contravention but he should in some positive way, be associated therewith. On the face of the pleadings there is nothing to suggest that the sales by Sent and Forshaw to Petres, Westwind, Dipson and Wilson were not entered into perfectly bona fide as a matter of business, save that they knew that Petres, Westwind, Dipson and Wilson could not pay the sums due by them unless they made a sale at a satisfactory price. No doubt questions arise when it is seen that assets are sold to a purchaser who can only pay for them if he sells those assets at a satisfactory price. But where it does not appear that the vendor has any control over, or is in any way a participant in, the negotiations for the resale of the assets or promoting the making of misleading statements by the purchaser to a subsequent potential purchaser, the mere fact that the vendor was aware of impending misconduct of the persons reselling the asset does not raise a case of involvement in that misconduct.

According to the decision of the Full Court of the Federal Court in Yorke v. Lucas (1983) 49 A.L.R. 672 a person is not "involved" in a contravention within the meaning of s. 75B of the Act unless he assents to or concurs in the conduct which constitutes the contravention. What was in issue in that case was not whether a positive act had been committed by the alleged aider and abettor but whether he had knowledge of the falsity of what he had said to the party who was misled. If such knowledge had been shown his making of the statements would have constituted a sufficient positive act. Here the situation is different. The knowledge is alleged but not the positive act. If it were alleged that Sent and Forshaw performed some act associating themselves with the misleading conduct in which they knew Petres, Westwind and Dipson intended to engage there would be both the knowledge and the participation in the misleading conduct. Involvement would be clear. As was said in Yorke's case at 681 adopting the decision of Pennycuick V.-C. in Re Maidstone Buildings Provisions Ltd [1971] I W.L.R. 1085 the expression "party to" in s. 332(1) of the Companies Act 1948 (Eng.) "must on its natural meaning indicate no more than 'participates in', 'takes part in' or 'concurs in'. And that, it seems to me, involves some positive step of some nature. I do not think it can be said that someone is a party to carrying on a business if he takes no positive steps at all". But there is in Jet Corporation's pleading no hint of any positive step which might constitute participation on the part of Sent and Forshaw in the alleged misleading and deceptive conduct of Petres, Westwind and Dipson in connection with their sales to Jet Corporation. Even if it were correct to say that on the facts pleaded satisfaction might have been felt by Sent and Forshaw in the possibility that Petres, Westwind and Dipson might make a sale at a satisfactory price and so be enabled to pay the purchase money due by them to Sent and Forshaw that would not constitute a relevant positive act on the part of the latter.

In the absence of some duty owed by Sent and Forshaw to Jet Corporation, silence and inactivity on the part of Sent and Forshaw; notwithstanding all their knowledge, was non-significant.

The need for some positive act amounting to participation to establish actionable involvement has since been affirmed in other decisions: see Imobilari; Batten v CTMS Ltd [1999] FCA 1576 at [29]; ABCC v Abbott (No 4) [2011] FCA 950 at [193]; ASIC v Adler (2002) 168 FLR 253 at [357]. Counsel for Vaughan did not contend the law to be otherwise but relied upon the qualification in the second paragraph quoted above from the judgment Smithers J in Sent suggesting that silence and inactivity might not be a bar to a finding of involvement where the person said to be involved had “some positive duty”.

23    The directors, in response, contended that the observation by Smithers J in Sent concerning “some positive duty” does not arise in the case pleaded by Vaughan because, as submitted by the directors, the observation referred to cases where there was a duty owed to the person suffering the damage but that no such duty was pleaded by Vaughan in the proposed further amended statement of claim. The submissions for Mr Macdonald also contended that, in any event, the duty was not in fact pleaded by Vaughan in the proposed further amended statement of claim. Paragraphs 29 and 30 of the written submissions dated 3 March 2014 for Vaughan had asserted, in contrast, that the duty had been pleaded:

29.    In the present proceedings, the Directors were under a positive duty to correct any misleading information provided by Becton to the ASX. This is because each director of Becton had a positive duty to Becton to act with care and diligence and in the best interest of the company (s180, s181 Corporations Act 2001).

30.    Given their knowledge that relevant material had not been disclosed to the ASX, it is submitted that this was a positive duty requiring them to take steps to ensure disclosure in order that Becton not to expose itself to penalties for breaching the continuous disclosure regime. To avoid doubt, that duty has been pleaded in the [proposed further amended statement of] claim.

It may be that what is pleaded in the proposed further amended statement of claim was intended to plead a legal duty of a kind that would meet the objection that the pleading had not previously alleged a positive act amounting to participation, however it is not clear whether that attempt has been successful. Each of paragraphs 91, 92H and 93 contains, as a particular, that the relevant director “was under a duty to take steps to ensure that Becton disclosed to the ASX the matters in paragraph 90B and the terms of the Taylorise Sale Agreement (paragraph 90GA hereof) but did not do so (paragraph 90GB hereof)”. But reference to paragraph 90B [or the other comparable paragraphs] does not with sufficient clarity identify what material Becton was under a duty to disclose. The paragraph referred to in the particular asserting a duty refers to knowledge about certain matters. Perhaps the pleading of the particular was intended to read something like that the relevant director “was under a duty to take steps to ensure that Becton disclosed to the ASX the matters which [in the relevant paragraph] were identified as being within the director’s knowledge”. The proposed further amended statement of claim, however, does not say that, and it should do so explicitly if that is what was intended. Even then there might need to be more explicit particularisation of the basis upon which the more clearly articulated duty is said to arise. The written submissions for Vaughan, but not the proposed pleading, suggests that the positive duty is said to arise from ss 180 and 181 of the Corporations Act 2001 (Cth) but it is not clear how the duties in those provisions are reflected in, or sufficiently give rise to, the duty as particularised in the proposed further amended statement of claim. Vaughan’s written submissions dated 3 March 2014 cited (in footnote 15 to paragraph 30 quoted above) two cases in support of the proposition that s 180 imposed a liability upon directors for “causing a company to act unlawfully”, but in ASIC v Warrenmang Ltd [2007] FCA 973 Gordon J said at [22] that “the directors’ duties provision do not necessarily make a director liable for a breach by the company of another provision in the Corporations Act” and at [29] her Honour made clear that the “forgoing analysis does not suggest and is not to be taken as suggesting that every breach by a company of the Corporations Act necessarily gives rise to a breach of the directors’ duties provisions. It does not.”

24    It is not desirable to give leave to Vaughan to file the proposed further amended statement of claim in its present form where there is doubt about whether what its lawyers intended to plead was what they pleaded. It is not clear which duty of the directors is said to be relied upon to come within the qualification by Smithers J in Sent. It is not desirable for ambiguities of that kind to remain and, if it were necessary to decide the matter, it would seem to me that the duty intended to have been pleaded (as revealed from the submissions) is not that which is found in the particulars and, in any event, it is undesirable for a pleading as significant as that to be found in particulars. There remains, therefore, the question of whether there has nonetheless been a pleading of a positive act sufficient to constitute involvement independently of whether a relevant duty had been pleaded. The involvement pleaded as against Mr Beck and Mr Taylor was particularised as deriving from their position, the knowledge they had or was to be imputed to them, and the specific duty referred to in the relevant particulars. The proposed further amended statement of claim does not otherwise allege some positive action which might be said to constitute their involvement in Becton’s alleged contraventions. That is also true in respect of the pleading against Mr Macdonald in the proposed redrawn paragraph 91, although the proposed pleading against Mr Macdonald would still have the specific pleadings against him in paragraph 80 from which actual involvement could arguably be inferred. The pleading against Mr Macdonald otherwise takes the same form as the pleading of accessorial liability pleaded against Mr Beck in paragraph 92H and against Mr Taylor in the proposed substantially redrawn paragraph 93. In those circumstances leave to file the proposed further amended statement of claim of 3 March 2014 will not be granted. However, Vaughan should not be precluded from a final attempt to replead its case of accessorial liability within a limited period of time.

25    There may be other deficiencies which need not presently be resolved. Counsel for Mr Macdonald, for example, submitted that the knowledge which had been pleaded against Mr Macdonald needed to be actual knowledge not constructive knowledge: Australian Securities and Investment Commission v Adler (2002) 168 FLR 253 at 342-3; see also Yorke v Lucas (1985) 158 CLR 661; Houghton v Arms (2006) 225 CLR 553, 561-2. In Compaq Computer Australia Ltd v Merry (1998) 157 ALR 1 Finkelstein J said at 5 that:

… it must be proved that the person has knowledge of the essential matters that make up a contravention of s 52(1) …. In this regard knowledge means actual and not constructive knowledge. For example it would not be sufficient merely to show that the person charged with accessorial liability had shut his eyes to the obvious if that is intended to be a substitute for actual knowledge… Of course, where there is a combination of suspicious circumstances and a failure to make an enquiry it may be possible to infer knowledge of the relevant essential matters …

In that context counsel for Mr Macdonald contended that the inferences Vaughan seeks to draw as the basis of the actual knowledge of Mr Macdonald as to the execution and terms of the Taylorise Sale Agreement (which is amongst the particulars in the allegation of Mr Macdonald’s alleged involvement of the contraventions alleged against Becton) is not supported by the allegations.

26    Accordingly, there will be orders:

1.    Giving judgment under s 31A in favour of Mr Beck and Mr Taylor in relation to the direct claims made by Vaughan against them.

2.    Striking out paragraphs 80 to 97 of the Amended Statement of Claim dated 20 January 2014 as against Mr Beck and Mr Taylor.

3.    Refusing leave to Vaughan to file and serve the proposed further amended statement of claim dated 3 March 2014.

4.    Permitting Vaughan to apply for leave to file a proposed further amended statement of claim within 21 days.

The parties are directed to produce a draft form of orders to give effect to the orders proposed in accordance with these reasons.

Associate:

Dated:    4 June 2014