Federal Court of Australia

Hillier v Martin (No 18) [2023] FCA 894

ORDERS

THE COURT ORDERS THAT:

1.    Within 14 days of the publication of these reasons, the applicant is to provide particulars of paragraph 45.

2.    Pursuant to r 16.53 of the Federal Court Rules 2011 (Cth), leave is granted to the applicant to file and serve by on or before 9 August 2023, a fifth amended statement of claim incorporating:

(a)    Particulars of the allegations in paragraph 45 of the fourth amended statement of claim;

(b)    The additional words in paragraph 45A “for the first respondent”;

(c)    The amendments to paragraph 45F.2 and 45F.3 to 45F.9 set out in enclosure 1 in Annexure FME-2 to the affidavit of Fiona Mary Errington sworn 5 December 2002; and

(d)    The amendments to paragraph 72P set out in enclosure 2 in Annexure FME-2 to the affidavit of Fiona Mary Errington sworn 5 December 2002.

3.    The fourth to sixth respondents’ application is otherwise dismissed.

4.    The Court will hear from the parties as to the question of costs.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    On 20 September 2022, the Court made orders in this matter granting leave to the applicant to join the then proposed fourth to sixth respondents, Stephen Bradley Williams (Mr Williams), Norman Waterhouse (A Firm) (NW) and Norman Waterhouse Lawyers Pty Ltd (NWPL) (in these reasons together referred to as the respondents) to these proceedings with such joinder to take effect from 23 May 2022. That order was made after extensive argument by the respondents as to why they should not be joined to the proceedings: Hillier v Martin (No 14) [2022] FCA 984 and Hillier v Martin (No 17) [2022] FCA 1156. An order was also made at that time granting leave to the applicant to file and serve a fourth amended statement of claim and a third amended originating application subject to the applicant pleading particulars of knowledge in [72H] of what was then the proposed fourth amended statement of claim.

2    The respondents had opposed joinder on two broad grounds:

(a)    The applicant had failed to discharge his onus of demonstrating that he had an affirmative case against the proposed respondents. As part of that ground the respondents submitted the pleadings were defective and there was no credible evidence supporting the allegations; and

(b)    The application was brought late.

3    Save for the requirement to plead particulars of knowledge of the allegations in [72H] to which I have referred above, I did not accept the respondents’ submissions.

4    Subsequently, the applicant filed a fourth amended statement of claim.

5    The respondents now bring a further interlocutory application, filed 21 November 2022, in which they seek orders:

(a)    That the proceedings against them be dismissed;

(b)    Alternatively the proceedings against them be stayed; and

(c)    Alternatively the fourth amended statement of claim and third amended originating application be struck out insofar as it relates to the respondents.

6    It is for the reasons which follow that there will be orders:

(a)    Granting leave to the applicant to file a fifth amended statement of claim incorporating particulars to the allegations in [45] of the fourth statement of claim, as well as proposed amendments to [45A], [45F] and [72P]; and

(b)    The application is otherwise dismissed.

The proceedings against the respondents be dismissed or stayed

7    The first order sought in the application is that proceedings against the respondents be dismissed.

8    There are two aspects to this part of the application. Although framed as an application for dismissal, the respondents also submitted that in the alternative, the proceedings should be stayed.

9    Insofar as dismissal is concerned, the basis for the order is that proceedings were filed in the Supreme Court of South Australia claiming similar but not identical relief against the fourth and sixth respondents. The respondents submit that since the Supreme Court proceedings have been filed, these proceedings, which pre-date the Supreme Court of South Australia proceedings, should be dismissed or stayed as an abuse of process.

10    Why the application for a dismissal, or in the alternative a stay, is directed at these proceedings and not the Supreme Court proceedings may be explained by the fact that the Supreme Court proceedings have not been served. The Court has not been advised that the position has changed. During the course of the argument on the application, after hearing submissions on the application for a stay or dismissal as an abuse of process, I refused that application.

The proceedings against the respondents be stayed

11    Order 2 sought on the application is for a stay. It is contended to be on the basis that since the respondents are the former solicitors for the first respondent (Ms Martin), a fair defence to the proceedings against the respondents is not possible. That is because the respondents contend they are unable to plead in their defence and/or use evidence of communications with Ms Martin and related entities as those communications are subject to legal professional privilege in favour of Ms Martin and her entities.

12    In support of this order, the respondents relied upon correspondence annexed to the third affidavit of Fiona Mary Errington sworn 21 November 2022 (third Errington affidavit). The respondents submit that the correspondence reveals that their attempts to address the issue of privilege with Ms Martin’s then solicitors resulted in Ms Martin seeking assurances as to how the respondents might conduct their case at trial. On that basis, the respondents submit that it was not apparent what assurances were sought by Ms Martin but that served to highlight the unfairness to the respondents in the proceedings continuing.

13    The respondents submit further that the allegations in the fourth amended statement of claim will require them to address matters going to the heart of the solicitor-client relationship with the first respondent. They submit that they are unable to do so because:

(a)    Their communications with Ms Martin are confidential communications between solicitor and client: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67, (1999) 201 CLR 49;

(b)    The privilege belongs to the client and cannot be unilaterally waived by the respondents;

(c)    A waiver of privilege cannot be forced because an applicant pleads into issue matters where privileged communications may be relevant: DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384, (2003) 127 FCR 499, [114]-[115];

(d)    Pursuant to s 119 of the Evidence Act 1995 (Cth), privileged communications and documents are inadmissible at trial if Ms Martin objects to them being adduced into evidence unless one of the exceptions in ss 122 or 125 apply; and

(e)    As a consequence, the respondents cannot plead privileged communications in their defence to these proceedings.

14    After reviewing the correspondence annexed to the third Errington affidavit, and hearing submissions from Mr Whitington KC who appeared for the applicant, it is apparent Ms Martin’s solicitors referred to assurances in their correspondence. However, I was far from satisfied that the issue had been fully ventilated between Ms Martin and the respondents and certainly, there is no suggestion of a refusal to waive privilege.

15    Accepting for the purposes of these reasons, that the respondents will need to refer to information in their defence which may be the subject of a claim for legal professional privilege by Ms Martin and the second respondent (Nordburger) and that any such information will, on its face, not be able to be tendered in evidence at trial in circumstances where Ms Martin and/or Nordburger does not waive privilege: Evidence Act ss 118, 119, 122(1), nonetheless I do not accept that the respondents are prejudiced for the following reasons.

16    First, insofar as access to privileged material as between Ms Martin, her entities and the respondents is concerned, there is likely to be common interest as between Ms Martin, Nordburger and the respondents in the sense that they have a common interest in the outcome of the litigation: Hamilton v New South Wales [2016] NSWSC 1213 (Beach-Jones J) at [66]-[72] such that disclosure as between those parties does not amount to a waiver of privilege: Evidence Act s 122(5)(c).

17    In the circumstances, any claim for legal professional privilege Ms Martin and Nordburger may make does not prevent the respondents from having recourse to the information for the purpose of pleading and preparing its case. Further, Ms Martin and Nordburger are able to preserve their respective positions to object to any evidence led or sought to be adduced in breach of any established claim for legal professional privilege. However, as I have noted, it is far from certain on the correspondence annexed to the third Errington affidavit that Ms Martin and Nordburger are resolute in maintaining their claim for legal professional privilege.

18    Second, any claim for legal professional privilege over information will be addressed either pre-trial or at trial. It is important to bear in mind that it is the applicant (Mr Hillier) that bears the onus of establishing his case. If he proposes to do so using information that is the subject of legal professional privilege, he will need to come within s 125 of the Evidence Act. It is not clear to me how that will prejudice the respondents, given it is Mr Hillier who will need to satisfy the Court that the information upon which he seeks to rely, assuming he has access to it in the first place, comes within s 125 of the Evidence Act.

19    Section 125 provides:

125 Loss of client legal privilege: misconduct

(1)    This Division does not prevent the adducing of evidence of:

(a)    a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(b)    a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power.

(2)    For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:

(a)    the fraud, offence or act, or the abuse of power, was committed; and

(b)    a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power;

the court may find that the communication was so made or the document so prepared.

(3)    In this section:

power means a power conferred by or under an Australian law.

20    “Fraud” for the purposes of s 125(1)(a) has been held to have an expanded meaning and not limited to legal fraud in the narrow sense. The section reflects the common law and extends to “all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances”: Kang v Kwan [2001] NSWSC 698, Santow J at [37].

21    In Kang at [37], Santow J set out a series of principles relevant to s 125 of the Evidence Act 1995 (NSW), which is in identical terms to the Evidence Act (Cth):

“Principles in relation to s 125 of Evidence Act

1.    Section 118 of the Evidence Act will operate to bestow legal privilege to confidential communications between a lawyer and client if the dominant purpose of those communications is to acquire legal advice. This is so even if the client intends to use the legal advice obtained, in furtherance of a fraud or some other improper purpose: per Hodgson CJ in Idoport Pty Limited & Anor v National Australia Bank Limited & Ors [2001] NSWSC 222 at para [60]. However that privilege does not prevent the adducing of such evidence where the conditions in s 125 of the Evidence Act are made out.

2.    However, s 118 will not operate where the improper purpose of the client is not to be pursued through the legal advice which is being sought. In those circumstances the claim for privilege fails at the threshold of s 118. Thus it fails where legal advice is not obtained for the utility of that advice in furtherance of the improper purpose but instead for the sake of appearance, as by cloaking an illegal step with the appearance that things are being done properly: per Hodgson CJ in Idoport Pty Limited (supra).

3.    A person who alleges that legal professional privilege does not apply to a communication tenders an issue for decision and has the onus of proving it: per McHugh J in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545 at 587.

4.    At common law a party seeking to resist a claim for legal professional privilege, based on the communication being to facilitate crime or fraud, need show reasonable grounds for believing that the communication between solicitor and client was one made in furtherance of an illegal or improper purpose, including fraud: per Hill J in Zemanek v Commonwealth Bank of Australia & Ors (FCA, Hill J, 2 October 1997, unreported) at 5.

That is the standard in s 125(2), namely that “there are reasonable grounds for finding ‘the fraud, offence, or act, or the abuse of power was committed’ and ‘a communication was made or document prepared in furtherance’ thereof.”

5.    Thus where it is alleged that the communication falls outside the ambit of protection for legal professional privilege it is not sufficient for the party seeking to resist the claim for legal privilege merely to state or assert that the communication was made in furtherance of a fraud or other illegal purpose but must adduce admissible evidence: Commissioner of Australian Federal Police v Propend Finance Pty Limited (supra).

6.    Although the standard of proof is not required to the level of proof on the balance of probabilities that the communication was made in the commission of a fraud or other improper purpose, there must be ‘something to give colour to the charge’, some evidence at a prima facie level that has foundation in fact grounding such a claim: per McHugh J in Propend at 587; Hill J in Zemanek (supra) at 6.

7.    Consistent with the reasoning in Propend, the standards for establishing reasonable grounds will depend on the circumstances, though must still be sufficient to ‘give colour to the charge’, that is at a prima facie level. Thus if a person challenging privilege is clearly not in a position to lead very much evidence concerning purpose, as where the other party has exclusive access to that evidence, the Court may be satisfied with relatively less evidence. In contrast, much more evidence may be required where the party challenging improperly obtained access to that evidence; Watson v McLearnon [2000] NSWSC 19, Hodgson CJ in Eq, 1 February 2000.

8.    Nor must it be overlooked that the court, by s 133, may inspect the documents the subject of the claim for privilege, for the purpose of determining a question that arises under the relevant Part 3. Such questions include not only the question of the application of s 118 but also questions concerning whether the client legal privilege has been lost or whether the evidence may nonetheless be adduced as under s 125.

9.    I would follow the view, though expressed as tentative, that ‘fraud’, as used in s 125, requires an element of dishonesty; per Hodgson CJ in Eq in Idoport para [63]. I would however use that term to include the kind of sharp practice often associated with equitable fraud encompassed by the Shorter Oxford Dictionary sense of dishonesty, namely ‘lack of probity; disposition to deceive, defraud or steal’. I would agree also that an ‘abuse of power’ which is dishonest would be caught by s 125(1)(b) as is clear from the requirement that there be a ‘deliberate’ abuse of power. It is difficult to imagine a deliberate abuse of power that does not involve some element of dishonesty but I leave open that possibility for future decision.

10.    It follows that the use of the word ‘deliberate’ in s 125(1)(b) requires that the client know that the acts in question are an abuse of power, not merely that the client unknowingly but deliberately commit acts that constitute an abuse of power: per Hodgson CJ in Idoport para [64].

11.    The range of instances of fraud are not limited to legal fraud in the narrow sense, but as is said in Cross on Evidence by J D Heydon (Butterworths, 1996) at 25,148:

‘“all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances”, [Crescent Farm (Sidcup) Sports Ltd v Sterling offices Ltd [1972] Ch 553 at 565; [1971] 3 All ER 1192 at 1200] for example an employee who schemes to take other employees and customers into a business competing with the employer's after termination of the employment, [Barclays Bank plc v Eustice [1994] 4 All ER 511 at 521-2; [1995] 1 WLR 1238 at 1249 (CA)] or the effecting of transactions at an under value with the purpose of prejudicing a creditor's interests, [Barclays Bank plc v Eustice [1994] 4 All ER 511; [1995] 1 WLR 1238 (CA)]

12.    A communication which is made in furtherance of an abuse of the processes of the Court is not of itself fraud, involving dishonesty or a deliberate abuse of a power in the sense used in s 125(1)(b). However, a dishonest communication to the Court, in furtherance of a purpose standing outside the (legitimate) scope of the relevant legal process so as to amount to an abuse of process, would invoke s 125(1)(b), as constituting a deliberate abuse of a power. This is because the bringing of (or defending) legal proceedings is the exercise of a power which is ‘conferred by or under an Australian law’, within the definition of power in s 125(3). See Williams v Spautz (1992) 174 CLR 509 and Flower & Hart v White Industries (Qld) Pty Limited (1999) 87 FCRs 134 at 150.

22    See also Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500, 511-513 (Gibbs CJ).

23    Third, it is not clear to me at this stage that if there is an improper purpose as alleged, it is necessarily being pursued through the legal advice which was sought: Idoport (supra). That is particularly so when one of the manifestations of what is pleaded in the fourth amended statement of claim as “the Plan” is a meeting held on 29 April 2016 at which the applicant was present.

24    Fourth, as I have noted above, the fourth amended statement of claim explicitly pleads what is referred to as “the Plan” in [45A] which is alleged to be dishonest by the ordinary standards of reasonable and honest people [45B]. I gave the alleged background to “the Plan” in Hillier v Martin (No 14).

25    Later, it is pleaded that between 12 January 2016 and 2 December 2019, Ms Martin, the Director of Nordburger, Mr Martin, and Mr Williams wrongfully by unlawful means conspired and combined together to create and execute “the Plan” (Conspiracy).

26    The purpose of Ms Martin, Mr Martin and Mr Williams in conspiring together to create and execute “the Plan” dishonestly is pleaded in [72O] as being to deprive the applicant and one other, Andrew Craig, of their legal and equitable right to title and interest in the Nordburger assets and business, which interests are said to be recorded in the “Nordburger Joint Venture” Agreement.

27    Ultimately, the applicant pleads at [72S] that the respondents assisted Ms Martin in the alleged conduct including “the Plan” and all steps in implementing “the Plan”. It is alleged in [72U] that NW, NWPL and Mr Williams and each of them are liable to compensate the applicant in an amount equal to such loss and damage as constructive trustees on the ground of the knowing assistance in each of Ms Martin’s breaches of fiduciary duty and/or breach of trust: Barnes v Addy (1874) LR 9 Ch App 244.

28    That said, as Gibbs CJ noted in Kearney: at p 516, the privilege is not displaced by making a mere charge of crime or fraud. Whether evidence of any information over which legal professional privilege is claimed but not waived is admissible at trial will need to await the trial and a ruling in the circumstances existing at that time.

29    Accordingly, the respondents’ submission they will be unable to either plead or tender evidence because of legal professional privilege proceeds on the basis that it is a foregone conclusion. Nothing could be further from the truth.

30    The applicant submits that it is not for a respondent in the position of the respondents to seek to contrive a stay by the confected erection of a privilege claim. I am not prepared to accept that the respondents are seeking to contrive a stay nor that they are engaging in the confected erection of a privilege claim. However, at this stage of the proceedings, the respondents’ submission is speculative and I am not prepared to stay the proceedings on the off chance that information over which there might be a claim for legal professional privilege will be inadmissible to the prejudice of the respondents.

31    As I have noted, Mr Hillier faces the risk that he will not discharge his onus in proving his case. However, if the respondents’ submissions are accepted, it has the practical effect that no claim involving fraud, in the broad sense explained by Santow J in Kang, could ever be brought.

32    It is for these reasons that I am not prepared to stay the proceedings.

Strike out

33    The respondents seek an order that the fourth amended statement of claim be struck out insofar as it relates to them pursuant to rr 16.21(b), (c), (d), (e) and (f) of the Federal Court Rules 2011 (Cth) (FCR) and that [3.8A], [3.8B] and [4] of the third amended originating application be struck out insofar as those paragraphs concern the respondents.

34    Alternative orders sought are that the applicant provide further particulars of [42], [43], [45], [45A], [45B], [45D], [45E], [45F.2], [50], [65C], [72H.2], [72K]-[72O] and [72Q]-[72V] (inclusive) and [75.8A] in the fourth amended statement of claim.

35    I considered the terms of the proposed fourth amended statement of claim in Hillier v Martin (No 14). The Court granted leave to join the respondents to the proceedings but required the applicant to provide further particulars of knowledge in [72H] of what was then the proposed fourth amended statement of claim. Every opportunity was given to the then proposed respondents to make submissions about the proposed pleading.

36    To submit now, on a second occasion, that the pleading contains frivolous or vexatious material (FCR 16.21(b)); is evasive or ambiguous (FCR 16.21(c)); is likely to cause prejudice, embarrassment or delay in the proceeding (FCR 16.21(d)); failed to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading (FCR 16.21(e)); or is otherwise an abuse of process of the Court (FCR 16.21(f)) are matters which, if not raised in Hillier v Martin (No 14), should have been.

37    Having heard extensive submissions in Hillier v Martin (No 14), any suggestion now that the fourth amended statement of claim is evasive or ambiguous, likely to cause prejudice embarrassment or delay in the proceedings, or an abuse of process of the Court is without merit. I do not accept that the fourth statement of claim suffers from any of those complaints.

38    Further, the question as to whether the fourth amended statement of claim failed to disclose a reasonable cause of action or other case appropriate to the nature of the pleading (FCR 16.21(e)) was a matter also dealt with extensively in Hillier v Martin (No 14).

39    As I noted earlier, but which warrants repeating, Mr Blight KC who appeared for the respondents on that prior occasion, resisted the application for joinder on two broad grounds, the first of which is relevant to this application. That ground was that the applicant had failed to discharge his onus of demonstrating that he has an affirmative case against the respondents. As part of this ground, the then proposed fourth to sixth respondents submitted the pleadings were defective and there is no credible evidence supporting the allegations.

40    In advancing that submission, the respondents identified five topics which they contended was such that leave to join them to the proceeding should not be granted. Self-evidently, those submissions were not accepted. Those topics and the paragraphs within the reasons in Hillier v Martin (No 14) which dealt with those topics are as follows:

(a)    The Joint Venture is improperly pleaded: [42]-[44];

(b)    The pleading of a dishonest plan: [45]-[65];

(c)    Knowing assistance: [76]-[85];

(d)    Conspiracy: [91]-[98]; and

(e)    Limitation: [99].

41    The respondents now submit that the pleading of the case against the respondents is defective in failing to plead allegations of serious fraud and dishonesty with the required level of particularity and specificity such that the allegations against the respondents should be struck out or alternatively that further particulars should be ordered.

42    Notwithstanding the opportunity for the respondents to complain about the proposed fourth amended statement of claim, they now raise no less than 15 categories of what they assert are pleading defects, a good number of which cover broadly the same ground as that canvassed in Hiller v Martin (No 14).

43    Nonetheless, I deal with the respondents’ complaints.

44    There is overlap between some of those 15 categories and to that extent, in some cases I deal with multiple categories together.

45    Finally, these reasons should be read in conjunction with those in Hillier v Martin (No 14), which gives the relevant background to this matter.

Principles

46    The principles concerning an application to strike out a claim are well-settled.

47    In Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97, the Full Court (Perram, Dodds-Streeton and Griffiths JJ) at [43] referred with approval to a summary of general principles by Beaumont J in Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (Unreported, FCA, Beaumont J, 13 September 1994) at p 24, in the following terms:

1.    A “reasonable cause of action” means one with some chance of success if regard be had only to the allegations in the pleadings relied upon by the claimant; in such a case, the claim cannot be struck out: Davey v Bentinck [1893] 1 QB 185.

2.    The mere fact that the case appears to be a weak one is not of itself sufficient to justify the striking out of the action: cf Wenlock v Moloney [1965] 1 WLR 1238.

3.    Normally, the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect: cf Hodson v Pare [1899] 1 QB 455.

4.    It goes without saying that if a substantial case is involved in the claim, the power to strike out cannot be exercised.

5.    Where a point of law has to be decided, and the judge is satisfied that this can be done by him appropriately, thereby avoiding the necessity of, and expense in going to trial, he is entitled to determine the point: cf Williams & Humbert v W & H Trade Marks [1986] AC 368.

48    The power to strike out pleadings or portions of pleadings is discretionary and should be employed sparingly and only in a clear case: Radisich v McDonald [2010] FCA 762 at [20] citing Australian Competition and Consumer Commission v Pauls Ltd [1999] FCA 1750 at [10] (O’Loughlin J).

49    In Oztech Pty Ltd v Public Trustee of Queensland [2019] FCAFC 102; (2019) 269 FCR 349 at [28]-[32] (Middleton, Perram and Anastassiou JJ), the Full Court observed:

The question of whether a pleading adequately raises a claim or defence is not concerned with the expression of the pleading as a matter of style, or of phrasing, or the structure of the pleading. Neither is it concerned with the formality of the process by which the issues in the proceeding are identified; be it a statement of claim, statement of contentions, concise statement, points of claim or points of defence. The verbal formulation of the allegations of fact, or the contentions of law, need not conform to a particular style guide or to any pro forma template.

The sole objective of a pleading is to clearly identify matters in dispute and difference by and between the parties to the dispute. This objective necessarily involves expressing the factual basis of each claim or defence. It is necessary that the legal elements of each cause of action or defence are expressed by reference to allegations of fact required to establish each element. It is not necessary to plead the legal conclusions that follow from the facts, but it is often convenient to do so. These are trite propositions but nevertheless vital to ensuring that the pleading serves its purpose.

There should be no doubt about whether any particular cause of action is relied upon. At a minimum, the pleading should be pellucidly clear about the causes of action, or claims, relied upon by the applicant, including any claims made upon an alternative hypothesis. The explicit clarity with which a claim is expressed should ensure that there be no need for the opposite party to closely scrutinise the pleading in a process of textual construction to determine whether a particular fact is relied upon, or the purpose for which it is alleged, much less to decide whether a particular cause of action is raised. The same basic requirement applies to any defence raised in answer to a claim.

Clarity in pleading is by no means an unattainable objective, even in the most complex litigation. Often the elements of a cause of action require careful and precise identification to ensure that the relevant integer is properly characterised having regard to the context in which the claim arose. The pleading should always be a bespoke articulation of the dispute between the parties, even though the warp and the weft of its fabric may be the same as other claims based upon the same, or a similar, cause of action.

There are occasions when such definition can be difficult and may require reference to technical or scientific material, including cases where the material requires specialist explanation by reference to expert evidence to be given at trial. In some instances, the contended facts may be asserted based upon inferences to be distilled from a web of other facts. In other instances it may be necessary to define an implicit representation drawn from the contextual background against which express statements were made or from the failure to make an express statement contrary to the apparent common assumption of the parties. While the limits of text may in some cases impose linguistic limitations beyond a certain level, such linguistic limitations would not generally present any obstacle to expressing the substantive causes of action with sufficient clarity to ensure that the parties are able to reach a shared understanding of the issues in the dispute.

50    The above passages were cited with approval by the Full Court in Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; 396 ALR 27 at [153] (McKerracher and Colvin JJ).

51    In KTC v David [2022] FCAFC 60 at [242], Anastassiou J observed:

A deficient pleading, on the other hand, is one which is, in critical respects, loose or opaque; often expressed in the passive voice. Such pleadings may elide inconvenient facts, or make generalised allegations or denials about critical elements such as knowledge, subjective or imputed, and may also lack a demonstrable and precise articulation of the necessary elements of the cause, or causes, of action relied upon. Those pleadings are ‘embarrassing’ in the legal sense (see FCR 16.02(2)(d)) and should not be tolerated, not for their inelegance but for their potential to impede the efficient administration of justice for reasons that have been stated many times. As Abraham J explained in Australian Competition and Consumer Commission v NQCranes Pty Ltd [2021] FCA 1270 at [9]:

A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general, such that the opposite party does not know what is alleged against him or her: Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; (2019) 209 IR 263 (Eastern Colour) at [18], citing Meckiff v Simpson [1968] VR 62 at 70. A pleading may be considered to be embarrassing if it suffers from narrative, prolixity or irrelevancies to the extent it is not a pleading to which the other party can reasonably be expected to plead to: Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440 at [80], [83]. It has been said that a pleading is embarrassing if it “is susceptible to various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense”: Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] ATPR 41-434 at [25]; Faruqi v Latham [2018] FCA 1328 at [94]. Although facts or characterisations of facts can be pleaded in the alternative, a pleading should not “[plant] a forest of forensic contingencies” which are only pulled together in final submissions: Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 at 503.

Submissions

52    At a general level, the respondents commenced by submitting that the allegations of fraud, knowing assistance and conspiracy need to be pleaded with specificity and particularity: Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 at [25]-[27]. So much so is uncontroversial.

53    The respondents contend the fourth amended statement of claim fails to plead causes of action against them in knowing assistance or conspiracy with the required specificity and clarity. They also contend that there are further issues being:

(a)    The pleading of matters in the conduct of this litigation that cannot properly be determined in these proceedings;

(b)    The failure to distinguish between the NW Partnership and NWPL or address attribution to the NW or NWPL;

(c)    Ambiguity as to the pleading for an extended limitation period; and

(d)    Allegations that do not appear to relate to any relevant relief sought against the respondents.

1. Paragraphs [1G], [1H], [72K], [72L], [72R.2], [72S], [72U], [75.8A] - The pleading of NW and NWPL as one defined “Norman Waterhouse”

54    The respondents submit that because the pleading includes both NW and NWPL as one defined term, “Norman Waterhouse”, the pleading leads to embarrassment and ambiguity.

55    The respondents submit NW was a partnership of individuals that ceased trading on 31 December 2017 with NWPL trading as from 1 January 2018 as a separate legal entity, such that it is necessary for the fourth amended statement of claim to distinguish which of the two entities is to be attributed with any knowledge or conduct of Mr Williams, given the different periods of time within which they traded.

56    The respondents submit further that Mr Williams’ knowledge is to be attributed generally to “Norman Waterhouse” without specifying the basis of attribution between two entities.

57    The applicant submits that this topic was addressed in Hillier v Martin (No 14) at [83]-[85].

58    That is so. It is a complaint which has already been determined. I decline to strike out these paragraphs.

2. Paragraph [43] - The 29th April 2016 meeting conduct

59    The respondents submit that the definition in [43] of the “29 April Meeting Conduct” is vague, ambiguous and embarrassing.

60    The respondents query whether the defined term relates to Ms Martin then having “procured and agreed” the meeting or a compendious reference to the matters alleged generally in [33]-[39] which include allegations relating to the respondents. The respondents submit that the use of the defined term does not identify with precision the conduct that is alleged to constitute relevant assistance by the respondents.

61    The respondents submit further that in [50] of the fourth amended statement of claim that the 29th April meeting conduct is pleaded as having various characteristics which the respondents submit is inconsistent with the same conduct being relied upon as founding relief that the applicant has confirmed does not relate to the respondents.

62    The applicant submits that the reference in [43] to the “29 April Meeting Conduct” is a compendious reference to the conduct pleaded at [33]-[39] and that the meaning is quite clear.

63    Paragraphs [33] and [34] of the fourth amended statement of claim plead the lead up to the meeting on 29 April 2016 and [35]-[39] plead what happened at that meeting, including the presentation to the applicant of a Deed Poll, and the contents of the Deed Poll.

64    Further, as to the submission that in [50] the “29 April Meeting Conduct” is inconsistent with the confirmation by the applicant that the conduct does not relate to the respondents, I do not accept that submission. Paragraph [50] characterises the “29 April Meeting Conduct” as five different types of conduct. It is not inconsistent with any other pleading.

65    The pleading of the “29 April Meeting Conduct” is quite clear. The definition in [43] is not vague, ambiguous or embarrassing as those terms were explained by Abraham J in NQ Cranes at [9].

66    I decline to strike out [43].

3. Paragraphs [45] and [56] - Lack of particulars

67    The respondents refer to [45] which pleads:

Further, by no later than 29 April 2016, the First Respondent claimed to be the ultimate economic owner of the Nordburger Joint Venture and its assets and businesses to the exclusion of any legal or equitable interest therein of the Applicant

The Applicant will give further particulars after discovery.

68    In [56], the applicant pleads:

Since the meeting on 29 April 2016, the First Respondent has taken or assumed the sole and effective control of the Nordburger Joint Venture and its assets and businesses to the exclusion of the Craig Interests and the Applicant (Assumption of Control).

69    The respondents submit that notwithstanding the pleading in [45] that further particulars will be provided after discovery, none are provided and no particulars are provided by [56]. They submit further that the ultimate consequence of “the Plan” is said to be that pleaded at [45], ie, a claim to be the ultimate economic owner of the Nordburger Joint Venture and its assets and businesses to the exclusion of the applicant.

70    The applicant submits that:

(a)    There has been no relevant discovery forthcoming so far such that the indication that particulars will be given has not been triggered;

(b)    In [61] it is pleaded that since April 2016 the Nordburger Joint Venture has earned profits which have been received and dealt with by Ms Martin; and

(c)    In [66], documentation produced by Mr Williams to the applicant’s solicitors on 9 January 2020, informed the applicant that Ms Martin had restructured the Nordburger Business by utilising a trust structure that provided for the applicant as a beneficiary, defined as “Restructure”. At [69.6] it is pleaded that the documentation recording or evidencing the structure, records Ms Martin as claiming to be the ultimate economic owner of the assets purportedly the subject of the Nordburger Holdings Trust which assets are the property of the Nordburger Joint Venture.

71    I take into account the applicant’s submissions. The respondents were ordered to make discovery by 29 May 2023. Particulars of [45] should now be provided. I decline to strike out [45] but I will order that particulars of the allegations be provided within 7 days of the publication of these reasons.

4. Paragraph [45A] - Knowledge

72    The respondents make a number of complaints about [45A].

73    First, what they describe as the “primary defect” is that the defined “Plan” is vague, ambiguous and embarrassing and second, that it is necessary for the applicant to plead the category or categories of alleged knowledge on the part of Mr Williams as enunciated in Baden v Societe General pour Favoriser le Development du Commerce et de L’industrie en France SA [1993] 1 WLR 509 at 575-576, 582; [1992] 4 All ER 161 at 235, 242-243.

74    As to the first complaint that “the Plan” is vague, ambiguous and embarrassing, the respondents submit it is not apparent who would “take control” and “claim ultimate economic ownership of the Nordburger business”.

75    The applicant submits that [45A] is to be read in context of [45], with which I have dealt with above and that the meaning of the pleading is clear and obvious. I accept that submission.

76    The Court dealt with this paragraph in Hillier v Martin (No 14) at [45]-[65]. The pleading is neither vague nor ambiguous nor embarrassing. In circumstances where there is a pleading in [45] that the first respondent claimed to be the ultimate economic owner of the Nordburger Joint Venture and its assets and businesses, to the exclusion of any legal or equitable interest therein of the applicant, the respondents’ complaint has no substance.

77    That said, the applicant is prepared to add the words “for the first respondent” after the words “Fourth Respondent” in the second line of [45A] to make it abundantly clear. Under those circumstances I will make an order that these additional words be inserted into [45A].

78    As to the second complaint, which is that the categories of knowledge set out in Baden should be pleaded. In Baden five categories were, in fact, enunciated, however the fifth category has not been accepted in Australia: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [174]-[178]. The four categories are: (i) actual knowledge; (ii) wilfully shutting one’s eyes to the obvious; (iii) wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make; and (iv) knowledge of circumstances which would indicate the facts to an honest and reasonable man.

79    The respondents submit it is necessary for the applicant to plead which categories of knowledge as enunciated in Baden, apply. They refer to the observations of the Victorian Court of Appeal in Break Fast Investments Pty Ltd v Rigby Cooke Lawyers [2022] VSCA 118 at [147]-[154].

80    The applicant submits the Court dealt with the question of knowledge in Hillier v Martin (No 14) at [59]. That is so. In that part of the reasons, I said:

Mr Hillier submits that it is within the knowledge of Ms Martin, Mr Thomas Martin and Mr Williams as to when and how “the Plan” was devised. I accept that submission. The consequence of what is alleged to have occurred at the meeting on 29 April 2016 and its immediate sequelae, is that the applicant pleads “the Plan” had been devised and this was its manifestation. Part of that manifestation is what is now known as “the William Buck brief”. Although material facts as to the background to “the Plan” are set out in 4ASoC [72A]-[72O], nonetheless knowledge as to when it was devised and how, remains within the knowledge of Ms Martin, Mr Thomas Martin and Mr Williams.

81    Further, Break Fast does not assist the respondents. This case is materially different from that which is pertained in Break Fast in the sense that [45A] is an allegation of an active involvement by Mr Williams in the development and implementation of the alleged “Plan”.

82    Next, the respondents submit that [45A] is inconsistent with [72O] and [72L] as to Mr Williams’ knowledge of “the Plan”.

83    The applicant submits there is no inconsistency and that the content of “the Plan” is pleaded; the participation of Mr Williams in devising “the Plan” is pleaded; the dishonesty of “the Plan” is pleaded; the knowledge of the respondents of “the Plan” and the fact of its dishonesty is pleaded: the fact that “the Plan” arose from an agreement between Ms Martin, Mr Martin and Mr Williams is pleaded: and the fact the agreement was to create and execute “the Plan” dishonestly to deprive other persons of the legitimate legal rights and interests is pleaded. I accept that submission.

84    Finally, the respondents refer to KTC v David at [135] (Wigney J) and [418] (Jackson J), and Muriniti v Lawcover Insurance Pty Ltd [2022] NSWSC 90, [474]-[477] in support of their submission that allegations tantamount to fraud are approached with rigour and that the respondents must be clearly on notice of the claims being made against them.

85    I accept those submissions and that pleadings of the nature advanced by the applicant against the respondents must be sufficient to put the respondents on clear notice and that they must be clearly pleaded and particularised and that serious allegations of the type advanced should not be made lightly. The pleading is clear and achieves all those things. It is readily apparent from the detail of the pleading that the serious allegations of the type advanced have not been made lightly.

86    Accordingly, apart from making the order to which I have referred above for the insertion of additional words in [45A], I decline to strike out this paragraph.

5. Paragraph [45B] - The allegation of dishonesty is a mere conclusion and is vague, unfair and embarrassing

87    Paragraph [45B] pleads, “‘The Plan’ was dishonest by the ordinary standards of reasonable and honest people”.

88    The pleading follows [45A] which defines “the Plan”.

89    The respondents submit that the allegation of dishonesty is a conclusion. That same submission was dealt with in Hillier v Martin (No 14) at [62]-[65]. It was rejected then and there is nothing further that has been advanced to cause any reconsideration.

90    Next, the respondents submit it is not apparent who is said to have had the dishonest intent or the material facts the applicant will rely upon to advance the conclusion that “the Plan” was in breach of a fiduciary duty by Ms Martin and dishonest. A submission broadly to the same effect was also dealt with in Hillier v Martin (No 14) at [65] where it was rejected. Nonetheless, the respondents submit further that although the ultimate consequence of “the Plan” are as pleaded at [45] and [56] with Ms Martin claiming “to be the ultimate economic owner” and having “taken or assumed the sole and effective control” of the Nordburger business from 29 April 2016, no particulars are provided.

91    The applicant submits that it is clear on the pleading that all three of Ms Martin, Mr Martin and Mr Williams were affected by dishonest intention and refers by way of example to [45A], [45E], [60A], [72L], [72M], [72O] and [72Q] of the pleading to that effect.

92    To the extent the submission differs from that put in Hillier v Martin (No 14) at [65], nonetheless the pleading remains clear. “The Plan” is defined in [45A] and those allegedly responsible for the creation and implementation of “the Plan” are identified in that paragraph. There can be no doubt that what is referred to in [45B] is “the Plan” referred to in [45A] and “the Plan” was devised by Ms Martin, Mr Martin and Mr Williams with the objective identified in that paragraph.

93    I decline to strike out this paragraph.

6. Paragraph [45F.2] - The Store

94    Prior to the hearing of this matter, the applicant provided a proposed new pleading for [45F] in which it proposed five new subparagraphs from [45F.3] to [45F.9].

95    The applicant applied orally at the hearing of this application to amend the fourth amended statement of claim by inserting these additional subparagraphs and amending the existing [45F.2] by deleting some lines of text.

96    The respondents complain about the proposed amendments in the cross-referencing in [45F]. I accept that extensive cross-referencing that renders part of a pleading unintelligible makes it liable to be struck out: see Wheelahan & Anor v City of Casey & Ors (No 12) [2013] FSC 316 at [25] referencing Gunns Ltd & Ors v Marr [2005] VSC 252 at [20]. I also accept that the cross-referencing makes the pleading difficult in the sense one is constantly referring back to definitions. However, it is not the Court’s task to assess whether the pleading could be better expressed. The question is whether the opposing party is able to understand the case pleaded against it. In this matter, the pleading is clear and with a considered reading, is readily understandable.

97    In the circumstances, I am prepared to grant leave to the applicant to amend further the fourth amended statement of claim by the insertion of additional paragraphs to [45F] in the form of enclosure 1 forming part of Annexure FME-2 to the affidavit of Fiona Mary Errington sworn 5 December 2022.

7. Paragraphs [65], [65C], [72T] - Causation and loss – the respondents

98    Paragraph [65] pleads loss which follows from the allegations in [62] concerning the actions of Ms Martin in relation to the funds, assets and businesses belonging to the Nordburger Joint Venture from 6 October 2019. Paragraph [65C] pleads loss as a result of a failure to implement the “Business Plan” which is pleaded in [65A].

99    The culmination of the pleading of loss insofar as Norman Waterhouse parties is concerned is found at [72T] which pleads that as a result of the assistance afforded to Ms Martin by the respondents, the applicant has suffered the loss and damage pleaded at [65] and [65C].

100    The respondents submit there is no pleading of a dishonest and fraudulent design or assistance such that there is no proper foundation to assess causation.

101    Notwithstanding the respondents’ submission, there is a clear pleading of dishonesty, for example at [45B] and [72L]. Further, as I have noted, the question of dishonesty was specifically addressed in Hillier v Martin (No 14) at [45]-[65].

102    The respondents submit that it is not apparent on what basis the respondents are said to be liable to guarantee the continued profitability of the Nordburger businesses, nor how those losses relate to an alleged dishonest and fraudulent design as opposed to non-fiduciary failures of care and skill.

103    The applicant submits that the matters about which the respondents complain are matters for trial and whether the applicant makes out his case. They submit further that the steps in the chain of causation are plainly pleaded in [62] and [62A].

104    I accept the applicant’s submissions. The point is, there is a correlation between the pleadings as to loss and how that loss came about with why it is that the respondents are alleged to be responsible for that loss. Either the applicant will make out causation or he will not, but as pleaded, it cannot be said that the attribution of loss alleged has no prospects of success or that the respondents cannot understand the pleading.

105    I decline to strike out these paragraphs.

8. Paragraphs [72G], [72H], [72I], [72J], [72L]

106    The respondents submit the pleading of knowledge in these paragraphs are rolled up, vague and unclear with no reasonable cause of action being pleaded.

107    The respondents’ submission of no reasonable cause of action being pleaded is based upon the oft repeated submission that it is necessary for the applicant to plead the precise category of knowledge alleged.

108    The applicant submits that there is no basis in Say-Dee to conclude that a party is required to plead by reference to so-called Baden categories of knowledge.

109    The respondents’ submission that the category of knowledge should be pleaded has already been considered and rejected. In Hillier v Martin (No 14) when dealing with the same submission, I said at [81]-[85]:

81    The proposed respondents submit that the pleading must disclose that Mr Williams had knowledge of a dishonest or fraudulent breach by Ms Martin, but does not do so.

82    I do not accept that submission. The structure of the pleading, which I have set out above, alleges that Mr Williams is alleged to have knowledge of “the Plan” on the basis he was involved in devising it; “the Plan” was dishonest and that in implementing it by taking control of the NJV, Ms Martin engaged in a breach of trust or breach of fiduciary obligations: 4ASoC [57], [62] - [63]. There are a number of categories identified in Baden v Société Générale pour Favoriser le Dévelopment du Commerce et de l'Industrie en France SA [1993] 1 WLR 509 in the passage from Say-Dee set out above into which the knowledge of Mr Williams might fall. It is not exclusively constructive knowledge.

83    As to the attribution of knowledge of Mr Williams to Norman Waterhouse, as pleaded in 4ASoC [72K] and [1H], the proposed respondents submit there is no automatic attribution for dishonest conduct to a corporate entity, namely NW Pty Ltd. In support of this submission, the proposed respondents refer to Commonwealth Bank of Australia v Kojic [2016] FCAFC 186, (2016) 249 FCR 421, [94] and Krakowski v Eurolynx Properties Ltd [1995] HCA 68, (1995) 183 CLR 563, 583.

84    The applicant submits that both Kojic and Krakowski are concerned not with the attribution of knowledge but the aggregation of knowledge. So much so is apparent from the judgments in Kojic of both Besanko J at [73]-[78] and Edelman J at [89].

85    The proposed respondents submit further that the requirements for attribution of knowledge differ between, on the one hand, partners and on the other, an incorporated legal practice. That may be so depending on the particular circumstances but in this matter, it is pleaded clearly that Mr Williams engaged in the alleged impugned conduct whilst he was a Principal in and servant and agent of the legal practice trading under the name “Norman Waterhouse”: 4ASoC [1D], [1H] and also during the course of his employment by and as agent for NW Pty Ltd: 4ASoC [1H]. If the proposed respondents seek to make a distinction in attribution of knowledge depending on whether Mr Williams was a Principal in the legal practice or an employee of the incorporated legal practice, that is a submission that may be open to the proposed respondents at a later stage in the proceedings.

110    Every case will be different and whether it is necessary or not to plead the different categories of knowledge will depend on the particular circumstances. In the particular circumstances of this matter, I consider the pleading as to knowledge is sufficiently clear to allow the respondents to know the case they have to meet. As I observed in Hillier v Martin (No 14), if the respondents seek to make a distinction as to the various forms of knowledge, that is a course which is open to them.

111    As to the submission that the pleading is rolled up, vague and unclear, that was a submission which was open to the respondents to make in Hillier v Martin (No 14) but which they failed to make. In any event, I do not consider the pleading in these paragraphs to be rolled up, vague and/or unclear.

112    I decline to strike out these paragraphs.

9. Paragraphs [72M], [72N], [72O], [72Q] - Conspiracy

113    The respondents submit the allegation of conspiracy in [72M]-[72R] is rolled up and as a result, ineffective. They submit these paragraphs do not contain the specificity and particularity that is required for such a pleading.

114    The applicant submits this complaint was addressed in Hillier v Martin (No 14) at [91]-[98]. That apart, the applicant submits the plea conforms to the standard plea of an unlawful means conspiracy: Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433; (2011) 83 ACSR 206 at [634] (Ward J as her Honour then was).

115    The applicant points to [72M] and [72O] where unlawful means is pleaded; [72P] and [72Q] which plead the acts carried out pursuant to the conspiracy and in pursuance of the intention to injure; [72T] which pleads loss and numerous pleadings of knowledge, for example at [72G].

116    The submission that the pleading falls short of what is required for a plea of conspiracy by unlawful means was dealt with by the Court extensively in Hillier v Martin (No 14) at [91]-[98]. Nothing further has been put before the Court which might cause it to re-consider that decision.

117    I decline to strike out [72M], [72N], [72O] and [72Q].

10. Paragraph 72P - “Litigation Conduct”

118    At the hearing of this matter the applicant applied orally to re-plead [72P] in the form set out in enclosure 2 forming part of Annexure FME-2 to the affidavit of Fiona Mary Errington sworn 5 December 2022.

119    The respondents’ complaint about the proposed new [72P] is directed at the issue of legal professional privilege with which I have dealt earlier in these reasons.

120    In the circumstances, I am prepared to grant leave to the applicant to file a fifth amended statement of claim by the insertion of a new [72P] in the form of enclosure 2 forming part of Annexure FME-2 to the affidavit of Fiona Mary Errington sworn 5 December 2022.

11. Paragraph [72S] - Plea of assistance

121    The respondents submit the pleading in [70S] is vexatious because it requires them to have regard to various definitions within the pleading and that the pleading is vague, ambiguous and contains conclusions.

122    The applicant submits that in Hillier v Martin (No 14) at [76]-[82] the Court dealt with the respondents’ complaints about [72S]. That is so, although on that occasion the complaint was different and was directed more towards knowledge. Nonetheless, the point is well-made that the respondent had an opportunity to make this complaint on that occasion but failed to do so.

123    Paragraph [72S] pleads a series of alleged actions by the respondents which are alleged to have assisted Ms Martin. It necessarily pleads by reference to other conduct pleaded and defined within the fourth amended statement of claim and defined.

124    The pleading is clear and is able to be understood upon a considered reading.

125    I do not accept the respondents’ submissions and I decline to strike out [72S].

12. Paragraph [72U] - Loss

126    Paragraph [72U] pleads to the effect that the respondents and each of them are liable to compensate the applicant in an amount equal to the loss and damage pleaded in [72T] as constructive trustees on the ground of their knowing assistance in each of Ms Martin’s breaches of fiduciary duty and/or breach of trust.

127    The respondents submit that [72U] only references [65] and [65C] and should be clarified.

128    The applicant submits that it is not necessary to make an amendment to a pleading that is clear on its face.

129    I accept the applicant’s submission and decline to order that the applicant amend [72U].

13. Paragraph [72V] - Extension of time pleading

130    Paragraph [72V] seeks, to the extent necessary, an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (SA).

131    The claim for an extension of time is based on:

(a)    Facts material to the applicant’s case not being ascertained by him until some point occurring within 12 months before expiration of the period limitation or occurring after the expiration of that period and the action being instituted within 12 months after the ascertainment of those facts by the applicant: Limitation Act, s 48(3)(b)(i), [72V.1]; and

(b)    The applicant’s failure to institute the action within the period of limitation resulted from representations or conduct of all of the respondents and was reasonable in view of those representations or that conduct and any other relevant circumstances: Limitation Act s 48(3)(b)(ii), [72V.2].

132    The pleading continues at [72V.3 (a)-(p)] by providing particulars of the circumstances, which the applicant pleads makes it just to grant an extension of time.

133    The respondents submit that the pleading is vague and embarrassing. They contend that the particulars provided are a narrative and did not give clear notice as to how they are deployed as against the grounds of extension pleaded [72V.1] and [72V.2].

134    The respondents also submit that it is not clear which of the particulars are relied upon for the purposes of new material facts in [72V.1] nor do the particulars identify the conduct of the respondents for the purpose of [72V.2]. A further submission by the respondents is that if the only purpose of the particulars in [72V.3(d)] relates to [72V.1], that should be made clear. So too, if the only purpose of the particulars in [72V.3(c)] relates to [72V.2], that should be made clear.

135    The applicant submits that [72V] is clear and the reliance upon [72V.3(d)] is self-evident.

136    I agree that the pleading is clear. When the pleading is taken as a whole, the respondents are well able to determine which of the particulars in [72V] is relevant to them and to which basis for the grant of an extension of time the particulars are directed.

137    Specifically, as to [72V.3(d)], the particulars deal with the applicant gaining access to the Xero database. The background to the applicant gaining access to that database is set out in Martin v Hillier [2022] FCA 351 (action number SAD 34 of 2022) and Hillier v Martin (No 14) at [6]-[9]. In short, the Xero database contains, at least in part, Nordburger’s financial records. Those records were finally produced by Ms Martin in the face of a self-executing order by which, if Ms Martin did not comply with the order for production, judgment was to be entered in these proceedings with damages and other appropriate relief to be assessed: Order 2 of orders made on 17 March 2022.

138    At that time the respondents to this application were Ms Martin’s solicitors. That does not, of course, mean that the respondents engaged in the alleged conduct but it does mean they have knowledge of the circumstances leading to the production of the Xero database.

139    It is against that background that the particulars to the allegations in [72V.1 and 2] make it perfectly clear what is being alleged.

140    As to the particulars in [72V.3(c)], the respondents complain about the pleading of the “Litigation Conduct” in [72P]. I have already dealt with that pleading.

141    I decline to strike out this paragraph.

Conclusion

142    It is for the reasons I set out above that there will be orders:

(a)    Requiring the applicant to provide particulars of paragraph 45 within 14 days of the publication of these reasons.

(b)    Granting leave to the applicant to file a fifth amended statement of claim incorporating:

(i)    The additional words in paragraph 45A “for the first respondent”;

(ii)    The amendments to paragraph 45F.2 and 45F.3 to 45F.9 set out in enclosure 1 in Annexure FME-2 to the affidavit of Fiona Mary Errington sworn 5 December 2002; and

(iii)    The amendments to paragraph 72P set out in enclosure 2 in Annexure FME-2 to the affidavit of Fiona Mary Errington sworn 5 December 2002.

(c)    The application is otherwise dismissed.

(d)    I will hear the parties as to the question of costs.

Associate:

Dated:    2 August 2023

SCHEDULE OF PARTIES