Batten v CTMS Ltd

ROBERT GEORGE BATTEN and ANTHONY WAYNE GRAHAME v CTMS LIMITED, FYNWEST PTY LIMITED, MICHAEL WELLS, PETER KILFOYLE, PATRICK STEVEDORES NO 1 PTY LIMITED, PATRICK STEVEDORES NO 2 PTY LTD, PATRICK STEVEDORES NO 3 PTY LTD, NATIONAL STEVEDORING TASMANIA PTY LTD, PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD, LANG CORPORATION LIMITED, STRANG PATRICK HOLDINGS PTY LTD, NATIONAL STEVEDORING HOLDINGS PTY LTD, PLZEN PTY LTD, INTRAVEST PTY LTD, CUMBERLANE HOLDINGS PTY LTD, EQUITIUS PTY LTD, JAMISON EQUITY PTY LTD, SERENADE PTY LTD, SCARABUS PTY LTD, PATRICK STEVEDORES HOLDINGS PTY LTD, PATRICK STEVEDORES OPERATIONS PTY LTD, CHRISTOPHER D'ARCY CORRIGAN, WILLIAM CLAYTON, ROBERT DUNN, PCS OPERATIONS PTY LTD, PCS RESOURCES PTY LTD, PCS TRAINING SERVICES PTY LTD, P AND C STEVEDORES PTY LTD, NATIONAL FARMERS' FEDERATION, DONALD GORDON McGAUCHIE, PAUL XAVIER HOULIHAN, JAMES WILLIAM FERGUSON, COMMONWEALTH OF AUSTRALIA AND PETER KEASTON REITH

PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD (ACN 156 292 687)

THE COURT ORDERS THAT: 1. The proceedings against the thirty-fourth and thirty-fifth respondents be dismissed with costs and one-quarter of those costs are to be taxed on an indemnity basis. 2. References to "the NFF interests" are struck out, with leave to replead, identifying the respondent or respondents against whom such an allegation is made. 3. Paragraph 70(viii) and the claim for extended liability against the PCS directors be struck out, with leave to replead. 4. Each of the applicants is to set out the loss and damage suffered by him with respect to each cause of action and quantify them. 5. The applicants are to provide details of claims by a group member of whom they are presently aware where loss and damage differs from the claims brought by the applicants. 6. Each of the steps referred to in paras 2,3,4 and 5 to be completed by 9 December 1999 and the matter listed for directions at 9.30 am on Thursday 16 December 1999. 7. The sixth to twenty-fifth; twenty-sixth to twenty-ninth and thirty-first to thirty-third respondents are at liberty to tax the costs occasioned by the amendments of the statement of claim including the hearing of their motions together with costs reserved on 3 February 1999 and 28 April 1999 and the applicants pay those costs forthwith upon taxation, notwithstanding the proceedings are not concluded. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD (ACN 156 292 687)

REASONS FOR JUDGMENT 1 This action arises out of the recruiting and training of a non-union workforce for the Australian waterfront industry in late 1997 and early 1998. Litigation was brought by the Patrick Stevedores Operations No 2 Pty Ltd and Ors v Maritime Union of Australia and Ors concerning the termination of employment of union members (see (1998) 195 CLR 1). This action is brought by two applicants who are said to represent persons who were induced to enter into training and employment contracts with either or both of the Patrick companies and the PCS companies, the latter being said to be connected with the National Farmers' Federation, or its officers. The persons recruited are alleged to have suffered loss as a result of entering into one or more contracts of employment and because the contracts were terminated. 2 The events which are said to give rise to the claims are alleged to stem from a "strategy", on the part of the thirty-fifth respondent, who was at relevant times the Minister for Industrial Relations or for Workplace Relations, to change the waterfront industry. It is alleged that the Patrick companies first agreed with the Minister to implement this strategy. The method of implementation then proposed is alleged to have amounted to a breach of the Workplace Relations Act 1996 (Cth) ('the WRA'). This assumes some importance in relation to the claim against the Minister and his fore-shadowed plea of immunity from suit under the Trade Practices Act 1974 (Cth) ('the TPA'). The other parties involved at this point were the companies, CTMS Limited and Fynwest Pty Limited and persons who were directors of either or both of those companies. It is alleged that they undertook the recruitment and training of the intended workforce on behalf of the Patrick companies. In the process, it is alleged that they made certain representations, called the "Dubai representations", a reference to the place where training was to occur. The representations are pleaded as follows: "At various times during 1997 identified in schedule 'C' hereto and whilst selecting and recruiting workers as pleaded in paragraph 27 hereof, Wells, Kilfoyle and Wilson on behalf of CTMS or alternatively on behalf of Fynwest, represented to the first applicant and all other members of the Dubai group (hereinafter referred to as 'the Dubai representations') that: (a) the employment opportunity being offered by CTMS and/or Fynwest was an excellent career opportunity; (b) the employment opportunity offered a competitive salary; (c) the employment opportunity was a permanent position in the surface transport area covering a variety of skills in locations such as Perth, Melbourne, Sydney and Brisbane; (d) the employment opportunity was a job for life; (e) the employment opportunity was especially suited to retired members of the Australian Army and serving members who were close to retirement as it offered a career after the army which had long term prospects; (f) successful applicants would be paid a $25,000.00 hardship allowance as compensation for being away from Australia for the training period; (g) the first applicant and the other members of the Dubai group would have a contract with Fynwest for three (3) years; (h) a worker's contract would be renewed if so desired by the worker, every three (3) years for a further three (3) year period; (i) the first applicant and the other members of the Dubai group would have a lifetime job (meaning a lifetime job with Fynwest); (j) the first applicant and the other members of the Dubai group would have nothing to worry about; (k) the minimum salary was $46,000.00 per year, but likely to be increase [sic] quickly after commencement; (l) large bonuses would be paid the first being in the sum of $25,000.00. Particulars of the Dubai representations (i) The Dubai representations were made orally and in writing. Particulars of the Dubai representations in writing (ii) On or about 30 October 1997, 13 November 1997 and 27 November 1997, Wells Kilfoyle and Wilson on behalf of CTMS or alternatively on behalf of Fynwest caused to be published in a newspaper known as 'Army - The Newspaper for Soldiers', two forms of an advertisement for the employment opportunity. (iii) One form of the advertisements contains the substance of the representations numbered (a) to (c) and (e) above. A true copy of that form of the advertisement is schedule 'B1' hereto; (iv) The other form of the advertisements contains the substance of the representations numbered (a) to (c), (e), (g) and (h) above. A true copy of that form of the advertisement is schedule 'B2' hereto (v) The newspaper known as 'Army - The Newspaper for Solders' was circulated throughout the entire membership of the Australian Army. (vi) Those members of the Dubai group who were serving members of the Australian Army on 30 October 1997, 13 November 1997 and 27 November 1997 saw both forms of the advertisements in 'Army - The Newspaper for Soldiers'. Particulars of the Dubai representations made orally (vii) On the dates set out in schedule 'C' hereto recruiting meetings were conducted at diverse locations in Queensland, New South Wales, Victoria and Western Australia whereat Wells, Kilfoyle and others on their behalf orally made the Dubai representations. (viii) The dates upon which the recruiting meetings took place, the locations at which they took place, the person or persons who spoke the words alleged to constitute the Dubai representations, and the members of the Dubai group present on each occasion are set out in schedule 'C' hereto. (ix) The material substance of the words said at each and every recruiting meeting was that: (a) the employment opportunity being offered by the first respondent was an excellent career opportunity; (b) the employment opportunity offered a competitive salary; (c) the employment opportunity was a permanent position in the surface transport area covering a variety of skills in locations such as Perth, Melbourne, Sydney and Brisbane; (d) the employment opportunity was a job for life; (e) the employment opportunity was especially suited to retired members of the Australian Army and serving members who were close to retirement as it offered a career after the army which had long term prospects; (f) successful applicants would be paid a $25,000.00 hardship allowance as compensation for being away from Australia for the training period; (g) that once the first applicant and the other members of the Dubai group signed an Australian Workplace Agreement, the first applicant and the other members of the Dubai group had a contract with Fynwest for three (3) years; (h) that a worker's contract would be renewed if so desired by worker [sic], every three (3) years for a further three (3) year period; (i) that the first applicant and the other members of the Dubai group had a lifetime job (meaning a lifetime job with Fynwest); (j) that the first applicant and the other members of the Dubai group had nothing to worry about; (k) that the first applicant and the other members of the Dubai group had a great job for life, if they so desired; (l) that the minimum salary was $46,000.00 per year, but likely to be increase [sic] quickly after commencement; and (m) that large bonuses would be paid the first being in the sum of $25,000.00."

3 It is then alleged that the representations contravened the TPA in that they were false, misleading or deceptive and, in so far as they represented intentions on the part of Fynwest or CTMS, that the companies did not intend to fulfil them. The first applicant and some of the other "Dubai group members" are alleged to have changed their employment circumstances in reliance on the representations, in order that they could take up the positions of employment offered. 4 In addition to the claim against CTMS and Fynwest, based upon the alleged misrepresentations, it is sought to extend liability pursuant to s 75B TPA to each of the directors of those companies; to the Patrick companies and their directors; and to the Minister. A claim formerly brought against the Commonwealth on this basis is no longer pursued. Damages for negligent breach of duty are sought against those parties and also the Commonwealth. Damages for breach of contract are claimed against Fynwest. 5 The claims in negligence and for contravention of the TPA do not contain particulars of loss and damage. The pleading simply states that particulars will be given "after determination of liability". No order has been made separating issues. 6 The claim in contract does refer to loss and damage. It is alleged that on 31 January 1998, after the MUA and the Australian public became aware of the existence of the Dubai group, Fynwest, two of its directors and the Chief Executive Officer of Lang Corporation Ltd (the company which is alleged to control the Patrick companies), agreed that the employment agreements with the Dubai group members be terminated and that the Patrick companies, or alternatively the PCS companies, would offer employment to them and to others. The termination of the contracts which followed is alleged to have resulted in a loss of remuneration and other benefits for the original term of the Dubai employment agreements and the loss of the opportunity to extend the agreements. 7 The second part of the pleading involves another proposal, by the National Farmers' Federation, and brings the PCS companies into the picture. It alleges an agreement made in or about September 1997 between the NFF and some of its officers to assist the Minister in the implementation of the strategy earlier referred to. It does not appear that anything is said to have been undertaken by it until February 1998, save for the incorporation of the PCS companies. It is alleged that in February 1998, the PCS directors and the Minister agreed to arrange for members of the Dubai group to be employed by companies controlled by "the NFF interests" and to recruit and train other suitable workers. It will be seen that this second group is likely to be wider and perhaps different from the Dubai group, but questions as to the appropriateness of the groups have not yet arisen for consideration and are probably premature given the information provided by the applicants in the pleading. It is alleged that the PCS companies commenced recruitment and offered employment to the second applicant and others with the PCS company. This group is called the "Webb Dock group", again a reference to the place of intended training. The representations on this occasion were in these terms: "Notwithstanding the matters pleaded in paragraph 68 hereof, persons acting on behalf of the PCS companies, on diverse occasions throughout January, February, March and April, 1998 represented to the Webb Dock group that ('the NFF representations'): (a) the Webb Dock group would not be used as substitute labour for striking MUA workers; (b) the Webb Dock group would not be used in substitution for the MUA labour force then employed by the Patrick companies; (c) the Webb Dock group would form a commercially viable labour force which would compete on an equal footing with MUA workers to offer stevedoring services throughout the Australian waterfront; (d) the PCS companies and the NFF's involvement in the Australian waterfront was a long term commitment; and (e) any worker who took up employment with the PCS companies would have a job for life. Particulars of the NFF representations (i) The NFF representations were made orally and in writing. Particulars of the NFF representations in writing (ii) In or about February - April 1998 the NFF interests and the PCS Companies caused to be published in a number of newspapers throughout Australia advertisements for employment opportunities with PCS Resources. (iii) The advertisements contain the substance of the representations numbered (a) to (d) above. A true copy of the advertisements is schedule 'G1' hereto; (iv) Particulars of those members of the Webb Dock group who read the advertisements are set out in schedule 'G' hereto; Particulars of the NFF representations made orally (v) On the dates set out in schedule 'G' hereto recruiting meetings were conducted at diverse locations in Queensland, New South Wales, Victoria and Western Australia whereat persons on behalf of the NFF interests (and after 8 January, 1998 on behalf of the PCS Companies), spoke the words alleged to constitute the NFF representations. (vi) The dates upon which the recruiting meetings took place, the locations at which they took place, the person or persons who spoke the words alleged to constitute the NFF representations, and the members of the Webb Dock group present on each occasion are set out in schedule 'G' hereto. (vii) The material substance of the words said at each and every recruiting meeting was: (a) the Webb Dock group would not be used as substitute labour for striking MUA workers; (b) the Webb Dock group would not be used in substitution for the MUA labour force then employed by the Patrick companies; (c) the Webb Dock group would form a commercially viable labour force which would compete on an equal footing with MUA workers to offer stevedoring services throughout the Australian waterfront; (d) the PCS companies and the NFF's involvement in the Australian waterfront was a long term commitment; and (e) any worker who took up employment with the PCS Companies would have a job for life. (viii) Further, throughout January, February, March and April, 1998 the NFF interests spoke publicly at diverse locations in Queensland, New South Wales, Victoria and Western Australia during which the NFF representations were made. (ix) The dates upon which the NFF interests spoke publicly, the locations at which they spoke and the person or persons who spoke the words alleged to constitute the NFF representations are set out in schedule 'H' hereto. (x) All members of the Webb Dock group heard the NFF interests speak publicly."

8 The identity of the makers of the representations and the part, if any, that the PCS directors played in them, is a matter to which I shall later refer. 9 Contravention of s 52 TPA by the PCS companies is alleged and liability is sought to be extended to the Patrick companies and directors; the PCS directors; and the Minister. Claims in negligence and for breach of contract are also made. Loss or damage said to flow from reliance on the representations or from breach of duty is again absent particularity. The claim in contract alleges termination of all agreements in July and August 1998 and loss and damage flowing from that and from the loss of opportunity of extending the original three year term provided for.

The Respondents 10 Some of the respondents may, for present purposes, conveniently be referred to as a group: the sixth to twenty-second respondents as "the Patrick companies"; the twenty-sixth to twenty-ninth respondents as "the PCS companies"; and the thirty-first to thirty-third as "the PCS directors". The pleading refers to the PCS directors as "the NFF interests", or part of them, and complaint is made about this. I shall also refer to the thirty-fifth respondent as "the Minister" although an issue arises as to the capacity in which he acted at relevant times and the capacity in which he is sued. CTMS, Fynwest, the directors of those companies and the National Farmers' Federation did not take part in these applications. I shall in any event refer to the respondents to the proceedings who did as "the respondents". The Applications 11 The principal applications are brought by the Minister and the PCS companies and directors, seeking dismissal of the actions in negligence and under the TPA. 12 The action was commenced in late 1998 and the applicants' further amended statement of claim (which I shall refer to as "the statement of claim") is the third such pleading. It is argued by the respondents that what they now contend for was communicated to the applicants early in the proceedings, but that they have refused to remedy these defects in their statement of claim. This is relied upon by the Minister and the Commonwealth to support orders for dismissal of the action against them and an order for indemnity costs; and by the other respondents for an order that costs occasioned by the amendments, and this hearing, be taxed and paid by the applicants forthwith. 13 The Minister contends that the claim based upon an extension of liability to him under s 75B TPA, as a person involved in the making of each of the sets of representations, is doomed to fail for two reasons: because he is entitled to the immunity given to the Commonwealth by s 2A TPA; and because the facts alleged do not show him to have had the necessary involvement or participation. With respect to the claims in negligence, it is contended that no breach of duty recognised by law is pleaded and that a cause of action is not complete given the lack of detail of any loss in damage said to have been suffered. Other complaints are also made about the pleading. 14 The PCS companies and the PCS directors adopt the Minister's argument with respect to the claims in negligence, which are pleaded in the same terms against them. The PCS directors also contend that the pleading does not bring them within s 75B TPA. The PCS respondents submit the pleading suffers other defects, the principal of which is a failure to plead loss and damage. The Patrick companies seek orders for these and other particulars. 15 It is convenient to deal, in the first place, with the applications by the Minister and the Commonwealth.

The Claims pursuant to s 75B TPA: the Minister 16 Section 2A(1) TPA provides that, subject to other provisions not presently relevant, the Act binds the Crown in right of the Commonwealth only in so far as it carries on a business, either directly or by an authority of the Commonwealth (and see Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399). There is no suggestion that such was the case here and, as I have said, claims originally brought against the Commonwealth for breach of the TPA are no longer pursued. The claim against the Minister, however, remains. Section 75B(1) TPA provides: "A reference in this Part to a person involved in a contravention of a provision of Part IV, IVA, IVB or V shall be read as a reference to a person who: (a) has aided, abetted, counselled or procured the contravention; (b) has induced, whether by threats or promises or otherwise, the contravention; (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention." (The emphasis is mine and reflects the allegations made against the Minister.)

17 There can be no doubt that a Minister is entitled to the immunity of the Commonwealth with respect to actions brought against the Commonwealth for contraventions of the TPA based upon the Minister's conduct. Counsel for the applicants conceded so much in argument. 18 Paragraph 47 of the further amended statement of claim alleges: "In the premises pleaded in paragraphs 19 - 25 and 43 - 46 hereof, Reith: (a) was knowingly concerned in the making of; or alternatively (b) aided, abetted, counselled or procured the making of the Dubai representations within the meaning of those terms in s 75B of the TPA."

(Paragraph 88, which concerns the Webb Dock representations, is in the same terms.)

19 I shall not set out all of those paragraphs. Paragraphs 19-25 refer to the "strategy" earlier referred to and its implementation. Paragraph 25 contains the allegation that the acts contemplated by the agreement between the Patrick companies and the Minister would contravene the Workplace Relations Act 1996 (Cth) ("WRA"). Although the later part of the statement of claim concerning the Webb Dock representations refers to only pars 19-21, the same point is made. 20 It is necessary to set out par 43 (with respect to the Dubai claim) since it forms the basis for the second limb for the alleged loss of immunity and for the claim in negligence, which I shall deal with later: "Further, from 15 October, 1997 onwards, Reith: (a) knew of the matters pleaded in paragraphs 25 and 38 hereof; (b) knew that that the Patrick companies, CTMS, Fynwest, Wells, Kilfoyle and Wilson would attempt to recruit people for the purposes pleaded in paragraphs 22 and 23 hereof; (c) knew or ought to have known that that [sic] CTMS, Fynwest, Wells, Kilfoyle and Wilson intended to make the Dubai representations; (d) knew or ought to have known that that [sic] the Dubai representations had been made; (e) knew or ought to have known that each and every of the Dubai representations was false; (f) knew or ought to have known that in the absence of each member of the Dubai group being informed of the matters pleaded in paragraphs 19 - 25 hereof, each and every of the Dubai representations was misleading; (g) knew or ought to have known that in the absence of each member of the Dubai group being informed of the matters pleaded in paragraphs 19 - 25 hereof, each and every of the Dubai representations was deceptive; (h) knew or ought to have known that in the absence of the Dubai group being informed of the matters pleaded in paragraphs 19 - 25 hereof, the members of the Dubai group would be unaware of the disadvantages of being involved in a workforce to be used for the purposes pleaded in paragraph 23 hereof; (i) knew or ought to have known that in the absence of the Dubai group being informed of the matters pleaded in paragraphs 19 - 25 hereof, the members of the Dubai group would not be able to make a fully informed decision to accept or reject any offer of employment made by Fynwest; (j) knew or ought to have known that the members of the Dubai group had no way of ascertaining the matters pleaded in paragraphs 19 - 23 hereof for themselves in the absence of being told of them by CTMS, Fynwest, Wells, Kilfoyle, Wilson, the Patrick companies, Corrigan, Clayton, Dunn or Reith; (k) knew that the members of the Dubai group had not been informed of the matters pleaded in paragraphs 19 - 23 hereof by CTMS, Fynwest, Wells, Kilfoyle, Wilson, the Patrick companies, Corrigan, Clayton or Dunn; and (l) knew that the first applicant and all the other members of the Dubai group would act or were likely to act in the manner pleaded in paragraph 38(a) - (d) hereof had they been informed of the matters pleaded in paragraphs 19 - 23 hereof."

21 Paragraph 84 concerning the Webb Dock representations is in these terms: "Further, from 8 January, 1998 onwards Reith: (a) knew of the matters pleaded in paragraphs 25 and 79 hereof; (b) knew that the PCS companies would attempt to recruit people for the purposes pleaded in paragraphs 19, 21, 64, 65 and 68 hereof; (c) knew that the PCS companies intended to make the NFF representations; (d) knew that the NFF representations had been made; (e) knew that the NFF representations were false; (f) knew that in the absence of each member of the Webb Dock group being informed of the matters pleaded in paragraphs 19, 21, 64, 65 and 68 hereof, each and every of the NFF representations was misleading; (g) knew that in the absence of each member of the Webb Dock group being informed of the matters pleaded in paragraphs 19, 21, 64, 65 and 68 hereof, each and every of the NFF representations was deceptive; (h) knew that in the absence of the Webb Dock group being informed of the matters pleaded in paragraphs 19, 21, 64, 65 and 68 hereof, the members of the Webb Dock group would be unaware of the disadvantages of being involved in a workforce to be used for the purposes pleaded in paragraph 68 hereof; (i) knew that in the absence of the Webb Dock group being informed of the matters pleaded in paragraphs 19, 21, 64, 65 and 68 hereof, the members of the Webb Dock group would not be able to make a fully informed decision to accept or reject any offer of employment made by the twenty-seventh respondent; (j) knew that the members of the Webb Dock group had no way of ascertaining the matters pleaded in paragraphs 19, 21, 64, 65 and 68 hereof for themselves in the absence of being told of them by the Patrick companies, Corrigan, Clayton, Dunn, the NFF interests, the PCS companies or Reith; (k) knew that the members of the Webb Dock group had not been informed of the matters pleaded in paragraphs 19, 21, 64, 65 and 68 hereof by the Patrick companies, Corrigan, Clayton, Dunn, the NFF interests or the PCS companies; and (l) knew that the second applicant and all other members of the Webb Dock group would act or were likely to act in the manner pleaded in paragraph 79(a) - (c) hereof had they been informed of the matters pleaded in paragraphs 19, 21, 64, 65 and 68 hereof."

22 Returning to the Dubai representations, it is then alleged in par 44 that, notwithstanding his knowledge, the Minister failed to inform the members of the group. Paragraphs 45 and 46 allege:- "45. By acting in the way pleaded in paragraph 44 hereof, Reith sought to secure benefit for himself and the Commonwealth, namely the fulfilment and achievement of the objectives and purposes pleaded in paragraphs 19 and 23 hereof. 46. Further, by reason of the matters pleaded in paragraph 25 hereof the conduct of Reith referred to in paragraphs 19 - 21 and 43 - 45 hereof was conduct outside the scope of his authority as minister for Industrial Relations.

As minister responsible for the administration of the Workplace Relations Act 1996 it was beyond his authority to encourage or permit others to act in contravention of the said Act." Paragraphs 85 to 87, which concern the Webb Dock representations, are in the same terms. 23 In the case of each of the sets of representations made by the recruiters it will be seen that the case for liability being extended to the Minister is put on two bases: because he encouraged others to breach the WRA by terminating the employment of union members; and because of his knowledge of what was taking place with respect to the group members and his inaction. 24 It was accepted in argument by the applicants that the immunity given by s 2A would ordinarily extend to a Minister's conduct where it was undertaken for and on behalf of the Commonwealth: and see Woodlands, Bass and Conca v Permanent Trustee Company (1996) 68 FCR 213, 230; McKellar v Container Terminal Management Services Limited [1999] FCA 1101, 79. In Woodlands it was pointed out that it would "make a mockery of Crown immunity" if those acting for the Crown were bound by the statute, although performing the very act they were retained to perform and in relation to which the Crown itself was immune. Here, however, it is not any conduct undertaken by the Minister which founds the action for breach of s 52. It is sought, nevertheless to make him liable because of the extent of his involvement in the relevant contravention. In the event that the Minister is to be held so liable, the applicants argue that the immunity was not available to him, because he was not acting as a Minister, or could not be taken to have been undertaking functions of that office, when he encouraged others to breach the industrial legislation. The difficulty with this approach is that the basis for denial of immunity and the contravention sued upon are not properly connected. I deal with this when considering the question whether the Minister was involved in the way s 75B contemplates. I shall, however, refer briefly to the question of the capacity in which the Minister is alleged to have acted. 25 It is not made clear by the pleading that the Minister was acting in a personal capacity, or in some capacity other than for or on behalf of the Commonwealth. The earlier parts of the pleading concerning the strategy, and actions taken to achieve it, refer to objectives which reflect governmental or ministerial policy; removal of union control over the Australian waterfront is said to have been undertaken for both the Minister and the Commonwealth; and in par 45 it is alleged that the Minister sought, by his conduct, to benefit both himself and the Commonwealth by fulfilling the strategy first mentioned. There is no reference to any personal gain or advantage sought by the Minister. Rather the "benefit" identified is said to be the same as that sought to be derived for the Commonwealth, the attainment of the policy objective. It is difficult to see how it could then be said that the Minister nevertheless acted in some other capacity. It does not seem possible to isolate the Minister's actions in encouraging any wrongful conduct under the WRA from his actions generally undertaken to pursue the named objectives. The fact that it was in some unspecified way itself wrong conduct would not operate to deny the capacity in which the Minister was acting. In any event, as I have said, the real difficulty with the case as framed is that the encouragement of others to terminate union labour, does not make the Minister an accessory to or participant in the making of the representations; and it is only to conduct fulfilling that description that questions of immunity arise. 26 Section 75B defines the persons who are to be taken as involved in a contravention so that loss and damage may also be recovered against them pursuant to s 82: Yorke v Lucas (1985) 158 CLR 661, 667. It is necessary, both with respect to the trade practices claim and the claim in negligence, to consider conduct said to be referable to "implementing the strategy" of the Minister and that associated with the making of the representations concerning the employment to be offered to non-union labour by the recruiters. 27 Although the shadow of a conspiracy is cast by references to "strategies", "objectives" and agreements to implement them, it is nowhere suggested that the Minister took part in plans for the making of the Dubai representations. It is alleged that he encouraged the Patrick companies to dismiss union labour and hire non-union labour, in an endeavour to decrease or destroy union power on the waterfront, but damages are not alleged to flow from any such agreement. The applicants' case is centred upon misrepresentations as to the quality and nature of the employment and its terms (and also to later breaches of contract). In particular it is alleged that, contrary to the representations, no job security was intended by those speaking on behalf of CTMS or Fynwest. It is not alleged that the Minister played any part in the making of the representations, apart from providing an objective which required the hire of labour. 28 The allegations that the Minister aided, abetted, counselled or procured the making of the Dubai representations may then be dealt with shortly. Such participation is like that of an accessory before the fact in criminal proceedings: see Yorke v Lucas 158 CLR 667; 1983 49 ALR 672, 676-7 (Full Court). Putting aside difficulties with the level of knowledge that the Minister was alleged to have, a topic to which I shall return, there is nothing to show that the Minister participated in such a way in the contraventions upon which the applicants' claim for relief relates. 29 That leaves the question whether the Minister could be said to have been "knowingly concerned" in the contraventions as alleged. It must be recalled that this refers, again, to involvement in a contravention. The applicants' case goes so far as to allege some knowledge and an interest in an overall plan, but not all aspects of how it was secured. Mere knowledge of the prospect that a contravention will, or has, occurred will not suffice. It must be shown that the respondent in question had knowledge of the facts which establish the contravention and that they acted in some positive way in connection with it: Bell v Australasian Recyclers (WA) Pty Ltd (1986) ATPR 40-644; 47, 222; Sent & Petres & Collier v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201; R v Tannous (1987) 10 NSWLR 303, 307-8. 30 The further amended statement of claim, par 43, pleads that in essential respects the Minister "knew or ought to have known" of the representations. That may be a common alternative plea in claims of negligence, but it will not suffice for a claim of involvement in a contravention. In the way in which it is presently pleaded it could not be inferred that the applicant was asserting actual knowledge. In any event, the claim fails to disclose any act or conduct on the part of the Minister in connection with the representations such that it could be said that he had the requisite involvement in any contravention. 31 I turn now to the case for extended liability with respect to the Webb Dock representations. It is alleged that from 8 January 1998 and onwards, the Minister knew of the likelihood of breach of the WRA by Patrick, the making of the misrepresentations and the group members' lack of knowledge about the truth. The representations, by those acting on behalf of the PCS companies, concern how those who would be recruited were be utilised as a workforce vis-ŕ-vis the MUA members, and the viability and permanency of the workforce. Earlier it had been alleged that the Minister's "strategy" was the subject of further agreement with the NFF and the PCS directors. The Minister is alleged to have agreed that the same objectives would continue to be pursued and that employment and recruitment of non-union labour be undertaken by companies associated with the NFF. Paragraph 68 goes on to allege that the "purposes" of the workforce to be marshalled were (in summary) to constitute an alternative force as strike-breakers. Once again, it does not follow from the conduct alleged on the part of the Minister that he was an accessory to the making of the representations. So far as he could be said to be "knowingly concerned" on this occasion, it is alleged (par 84) that he actually knew that it was intended to make the representations and that they were made. Again, however, no participation in them is identified. 32 On both accounts - the availability of immunity and the lack of involvement on the part of the Minister in the contravention founding the applicants' claims for damages - the claims under the TPA are liable to be struck out, or dismissed.

The Claims for Negligence: the Minister and the Commonwealth 33 The Commonwealth does not have immunity from a suit in negligence for breach of a duty of care. The Commonwealth and the Minister however contend that no duty of care recognised by the law has been pleaded. 34 So far as concerns the Dubai group members par 43, set out above, details the matters of which the Minister is said to have actual or constructive knowledge. It is alleged that he knew that the members of the group would be used as strike-breakers and that they would, as a result, suffer derision and have their earning capacity generally, or in the waterfront industry, seriously impaired. There are some references to the risk of personal injury and injury to feelings, but the prospect of economic loss appears to be most significant. It is not pleaded what loss or damage was in fact suffered, and there is nothing to suggest personal injury was suffered or that damages are sought with respect to any such injury. It is then alleged that the group members had, to the Minister's knowledge, no way of fully informing themselves and that it was also apparent to him that they were likely to be induced to take up the employment offered. 35 It is by reason of these facts that the Minister and the Commonwealth are said to have owed a duty of care to the group members "to take all reasonable steps" to inform them of the part they were to play in the "strategy"; of the truth about the representation; and what was necessary to allow them to make an informed decision. 36 In the way in which it is pleaded, the obligation of the Minister and the Commonwealth to inform the group members is said to arise from knowledge on their part about what would happen to group members if they took up the offer or offers of employment. The duty is, in effect, to warn them of such aspects of the transaction of which they did not know and which might deter them from entering into the engagement. The pleading appears to me to attempt to establish the position of vulnerability on the part of the applicant, such as would found a duty to act to prevent economic harm: see Perre v Apand Pty Ltd (1999) 164 CLR 606, 660, 664, 611, 639; 73 ALJR 1190. 37 The obligation to warn, or inform, is not pleaded as a duty arising because of what has otherwise been said, to correct or qualify the representations of the recruiters. Indeed, a feature of this claim is that the duty is said to arise with respect to conduct on the part of others which was likely to produce loss or damage; that is to say the Dubai representations, if not corrected, would have that result. No case of duty arising by known reliance on the part of the group members on the Minister's advice, nor some assumption of responsibility on his part such that they could reasonably be said to rely upon it, is pleaded (see Pyrenees Shire Council v Day (1998) CLR 192, 330). In so far as there may be a shift away from categorising situations or the use of control mechanisms, such as proximity to found a duty of care, to an inquiry as to whether there is a sufficient and special relationship between the parties to require action on the part of one to avoid economic harm to the other (Perre v Apand Pty Ltd), such a case is not pleaded here. What is pleaded is knowledge on the part of the Minister and the Commonwealth of the group members' exposure to economic loss. It remains the case that mere knowledge of the risk of such harm is not sufficient to give rise to a duty of care. Moreover, the risks appreciated by a person, and to which a duty to act might relate, are those created by that person, not someone else. The conduct said to give rise to the risk of economic loss to the Dubai Group members is not clearly pleaded. A reference back to the implementation of the strategy, to the intention to fire and re-hire labour and the making of the representations is made. Whatever duty may have arisen because of what was said about the employment to be undertaken and the position the group members were then placed in, which the Patrick companies, Fynwest or CTMS, may have been able to affect, the same causal connexion could not be said to arise with respect to the Minister's antecedent conduct in encouraging the prior termination of others' employment. 38 The applicants, in submission, pointed to the prospect that the duty attached also to the risk of personal injury to group members which is pleaded as forming part of the respondents' knowledge. That was said to require only a relationship of proximity between them and the Minister. My observations above concerning mere knowledge of risk and causation would apply. In any event, no such injury or loss is alleged to have occurred. The applicants have been on notice to specify loss and damage for some time and I find it difficult to accept that this is a substantial part of their case. 39 It is sufficient to observe, in connection with the Webb Dock group members, that the case in negligence would fail for the same reason. 40 On the view I have taken of the duty of care alleged, it is not necessary to deal here with the further contention concerning the failure to plead loss and damage. I shall deal with that question in connexion with the state of the pleading generally. Claim for Liability under Section 75B: The PCS Directors 41 I have referred above to the principles relating to this liability. It is here alleged that unnamed persons acting on behalf of the PCS companies made representations to the Webb Dock Group concerning how their labour force would be utilised and its permanency. It is of course possible that the directors of the companies in question gave instructions to that effect or were participants in the making of the representations. The involvement alleged on their part appears in paragraph 70(viii). It is alleged that "the NFF interests" spoke publicly at a number of locations in four States when the actionable representations were made. By sub-paragraph (x) it is alleged that all members of the Webb Dock Group heard the NFF interests speak. The "NFF interests" are referred to in paragraph 64 as including the National Farmers' Federation and the three directors. This reference ought to be deleted from the pleading and the relevant party the subject of any allegation properly identified. For present purposes, however, I take it that it is alleged that the directors spoke. The other problem with the matter as it is presently pleaded, as founding a basis for extended liability, is that just what was said by the directors on these occasions is not particularised, either as to the speaker nor as to the contents or effect of what was said. Whilst it is possible that by their presence at times when particular Webb Dock representations were made, or by what they themselves said that they may have shown sufficient association to enable a conclusion that they were knowingly concerned in the making of the representations, it is not presently clear from the pleading. In its present state it is liable to be struck out. The course I propose to take however is to strike out paragraph 70(viii) and to give the applicants leave to replead that paragraph with proper particularity and also to replead the claim for extended liability to show clearly how the directors are said to have been involved. 42 It is convenient to add at this point that likewise the claim for extended liability against the directors of the Patrick companies should be clarified, although there is not presently an application with respect to it.

Claim for Negligence: The PCS Companies 43 The companies submit that only the respondent PCS Resources Pty Ltd is shown to have been the employer of any member of the Webb Dock Group and, I infer, the only PCS company which would have the necessary relationship of proximity with members of the group. It is alleged that the directors and the National Farmers' Federation commenced the recruitment of workers and that the directors caused the PCS companies to come into existence. The companies are called PCS Operations Pty Ltd; PCS Resources Pty Ltd; PCS Training Services Pty Ltd; and P and C Stevedores Pty Ltd. It is clear enough that the applicants' case is that they all had some part to play in the recruitment, training and employment of the group members, and their titles describe separate functions. What is presently missing in the applicants' case is a specification of the part each played or was to have in the recruitment and later employment of the company, but it does not seem to me that the companies are in any sense disadvantaged by the applicants' present inability to make such a distinction, if there is one. 44 It seems to me that there is sufficient pleaded to disclose an arguable case in negligence, although it is not presently apparent that such a cause of action is necessary. The second applicant's case is that there were representations that the group members would not be used in substitution for a union labour force and that they would be a viable force in their own right and for a long time. In the action for negligence, it is alleged that the use to which they were actually intended to be put was, in effect, as strike-breakers and that they were thereby exposed to risk of economic loss. It is said that the companies and others knew this, knew what would happen to the group members, appreciated that the group members had no means of knowing, and that they were obliged to act and failed to do so. These facts might found a special relationship or situation of vulnerability to which I have referred to above. 45 I have queried whether the claim in negligence is necessary, or is superfluous. The claim is, clearly enough, based upon the falsity of the representations combined with the knowledge of the PCS companies. From that point it is alleged that a duty arose to qualify the representations, or to advise. This is a matter for the applicants' to consider, particularly having regard to future costs. It may be that the identification of loss and damage will assist to resolve this.

Claim in Negligence: The PCS Directors 46 The applicants may be able to show a relationship with the companies such as to found a duty of care on their part. It does not automatically follow, however, that directors of the company personally owed a duty of care to members of the group. In this respect, the directors have referred to Williams v Natural Life Health Foods [1998] 2 All ER 577, 584. It may be that the further particulars to be given of the directors' involvement in the making of the representations will provide a sufficient basis for a duty of care. I will not make an order striking out the claim in negligence for the moment, although it is liable to be. When the applicants have completed their amendments, if the relationship is not properly specified that order will be made. Loss and Damage 47 Each of the respondents has consistently contended that, absent allegations of material facts to show loss and damage suffered, the causes of action under the TPA and in negligence are deficient and liable to be struck out (see in that respect Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215, 222). It is sometimes the case that an outline of the claims for loss and damage appears in other parts of the pleadings. This may sometimes overcome an order for striking out and provide a further opportunity for the specification of loss and damage. Here, some indication is given in the plea of reliance, but there is still much to speculate about. 48 In these proceedings, the usual problems created by the failure to plead loss and damage are multiplied. The causes of action suggest the possibility of duplication or overlap. It would obviously be in the interests of the group members if the source of any remedy for them was properly identified and the action confined to it. This should always, of course, be the aim in litigation but it is likely to be of greater importance in class actions, where there is a need to reduce differentiation between group members. There is said to be loss caused by the Dubai Group members being induced to enter into contracts of employment with one of the Patrick companies, and then further loss when that contract was terminated although employment was continued with the PCS companies and again terminated. A number of questions readily arise: as to whether the principal loss arose because of the termination of one or both of the contracts of employment and whether the representations inducing entry into those contracts add much to the loss said to have been suffered. I have already referred to the question of where the claim in negligence fits in. 49 There is also the difficulty that the individual circumstances of group members will differ. It is already apparent from the pleading that their positions prior to entry into the first contract of employment were different. The extent to which their individual circumstances differ substantially may depend upon the cause of action upon which their principal claim for loss and damage is to be founded. One difference as between some of the group members is the time at which they entered the picture. Identification of loss and damage will be necessary to determine whether these are properly representative proceedings and whether there are identifiable groups and even sub-groups. That may require the identification of loss and damage if not of all group members, who number some 250, then at least of sufficient of them to be representative of different losses. 50 The loss and damage said to have been suffered are essential to be pleaded in these proceedings. Not only are they necessary to complete two of the causes of action, little sense can be made of the claims without them. That is so not only for the respondents but for the Court, if effective case management is to be applied. Since the loss to which the applicants are alleged to have been exposed in some respects seems minor and because of the likelihood of overlap, they should quantify their claims with respect to each cause of action. 51 I have also considered requiring each of the group members identified in the pleadings to plead loss and damage. Whilst these proceedings have not been notified as representative proceedings, and persons given the opportunity to opt out, I take it that the applicants' solicitors are likely to have instructions with respect to those group members already referred to. The identification of the likely extent of an individual claim and of any overlap between the causes of action relied upon should be provided by orders requiring the applicants to specify their loss and damage. Beyond that it will be necessary, for the further conduct of the proceedings, to identify any major differences in loss suffered and associated issues such as reliance, as amongst the other group members. For the present purpose, I consider the applicants should also provide examples of claims for loss and damage from those group members of whom they are aware and which differ in nature from those of the applicants. Other Defects in the Pleading 52 Because of the orders I propose making, it has not been necessary to deal with each of the numerous, complaints raised by the Minister and the Commonwealth concerning the further amended statement of claim. The PCS respondents however took up much of those submissions, in so far as they concerned parts of the pleading relevant to them. The principal contention of these and the other respondents was the issue of loss and damage, with which I have already dealt. The question of particularisation of knowledge does not seem to me to require further consideration. I have considered each of the complaints raised and will deal with some of them shortly. Others were not sufficiently significant to warrant such treatment. 53 The PCS respondents point to errors appearing in the representations pleaded. This follows the argument for the 34th and 35th respondents. For example, the advertisement referred to by schedule G1 does not contain the representations referred to in paragraph 70(a) to (d), as it is said to. This appears to be the case although the applicants' case also alleged that the representations were made orally and so do not depend entirely on the advertisements. There are other complaints that some group members do not appear to have been the recipients of the representations, even though the relevant schedule has been subject to recent amendment in an attempt to overcome this problem. I do not propose to make orders striking out or requiring further particulars with respect to these matters, but these errors should be attended to. Other submissions concern the inconsistency of claims of falsity of representations with those of future intention. In my view, there are unnecessary and repetitious pleas with respect to the representations and this should be considered by the applicants' legal representatives; but I do not propose making any orders with respect to them. What the representations are alleged to have conveyed should be made clear. 54 There were other problems said to arise with respect to the description of the group members, although it was not clear that the PCS respondents were taking up the Minister's submission in this regard. It was alleged that members of the Dubai group relied upon representations by resigning or taking leave from the Army or resigning employment. The group members falling into one of these categories are listed, respectively, in Schedules D1, D2 and E. It is pointed out, however, that the three lists do not equate with all group members. This leaves a number who did not do any of those things, the extent of whose loss suffered from any inducement to enter into employment is unclear. This should be remedied by the description of the group members to whom I have referred. 55 The PCS respondents complain of "oppressive terms" namely the reference to the "NFF interests" and the "PCS companies". I do not see any difficulty or prejudice arising from the reference to the "PCS" companies, and, as I have said, it is apparent that they are sued at present as if they had some common purpose. The reference to the "NFF interests", however, is in a different category, and it is both embarrassing and confusing that the allegations against the National Farmers' Federation on the one hand and the directors on the other is not made clear. I have already foreshadowed an order striking out such references. Further and Better Particulars sought by the Patrick Companies 56 The principal concern of these respondents was for specification of the loss and damage said to have been suffered. The orders to be made should provide sufficient details. Costs 57 It is conceded by the applicants that the costs thrown away by the two amendments to the statement of claim are to be paid by them. Each of the respondents seeks orders that costs be taxed and paid forthwith. 58 The Commonwealth and the Minister seek indemnity costs with respect to the claims brought under the Trade Practices Act. There seems to me to be good ground for the making of such an order. 59 The applicants' inability to sue the Commonwealth was only recently accepted, in the most recent amendment of the statement of claim, despite it being pointed out in discussion at the first directions hearing. The claim against the Minister was amended to attempt to get around the plea of immunity, but it was never based on the Minister's direct involvement in the contraventions pleaded. It appears to me to have been something of a desperate attempt to keep the Minister in the action, and not one which was well-founded. It can be seen from the series of statements of claim that the applicants considered that the Minister had been acting on behalf of the Commonwealth, but they now sought to raise one anterior piece of conduct, not directly connected with the misrepresentations sued upon, in an endeavour to subject him to the claim. 60 Each of the PCS respondents and the Patrick directors and companies, including the Lang Corporation, are entitled to the costs occasioned by the amendments and on the motions together with costs reserved with respect to the hearings on 3February 1999 and 28 April 1999. With respect to the Commonwealth and the Minister, there will be an order for indemnity costs with respect to the claims brought under the TPA. To simplify the taxation of such an order, I estimate the costs associated with those claims to be one-quarter of those respondents' costs, having regard to the other matters raised in connexion with the statements of claim. 61 The question which then remains is whether there should be an order that the costs be taxed and paid forthwith, notwithstanding that the proceeding is not concluded: O 62 r 3(2). There is no need for such an order in favour of the Commonwealth and the Minister: see O 62 r 7. 62 It is not necessary for me to detail the correspondence passing between the applicants and the other respondents. The need for loss and damage to be pleaded was drawn to the applicants' attention early in the proceedings. Despite indications, from time to time, that the information would be provided, the position ultimately adopted was refusal for no valid reason other than that it would be too cumbersome at present and because they would prefer liability to be determined separately. No such order had been sought and even if that course were taken, it would not overcome the need for a proper plea in negligence and under s 82 TPA. Nothing said in argument suggested to me that pleading the two applicants' cases of loss and damage was likely to be a very difficult task, although I apprehend it was appreciated that the case may appear somewhat simpler, and in smaller compass, if loss and damage were specified and any duplication or overlap between the claims made apparent. Whilst the respondents also required other parts of the statement of claim to be corrected, and I have not made orders with respect to them, it could not be said that those complaints were groundless. In any event, it seems to me that the grounds in this case for the making of an order requiring payment notwithstanding the proceedings have not been concluded are principally connected with the omission of the pleas of loss and damage. The matter cannot proceed until these facts are pleaded. 63 In Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545, Branson J reviewed some cases where orders under O 62 r 3 had been considered. Amongst the cases identified by her Honour as justifying a departure from the ordinary rule leaving costs to the conclusion of the substantive proceedings, were those where significant costs had been incurred, costs which would not normally have been incurred in the litigation, and which a party could not be expected to carry to the conclusion of proceedings. In Vasyli v AOL International Pty Ltd [1996] FCA 805, Lehane J made such an order where an unsatisfactory statement of claim required substantial amendment such that the proceedings could be viewed as having been commenced afresh. In this case, whilst the statement of claim was not wholly deficient, it has taken almost a year and three attempts to constitute the action, and when loss and damage are pleaded that will be the first time when the pleading could be regarded as complete. I will make the orders requiring payment of costs following taxation. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate: Dated: 12 November 1999 Counsel for the First and Second Applicants: Mr J Glissan QC and Mr M Jarrett

Solicitor for the First and Second Applicants: Klooger Phillips Scott

Counsel for the Sixth to Twenty-fifth Respondents: Mr Scerri QC

Solicitor for the Sixth to Twenty-fifth Respondents: Arnold Block Leibler

Counsel for the Twenty- sixth to Twenty-ninth and Thirty-first to Thirty-third Respondents: Mr P Jopling QC and Mr J Barke

Solicitor for the Twenty- sixth to Twenty-ninth and Thirty-first to Thirty-third Respondents: Minter Ellison

Counsel for the Thirty-fourth and Thirty Fifth Respondents: Mr N Lucarelli and Mr D Chan

Solicitor for the Thirty-fourth and Thirty Fifth Respondents: Australian Government Solicitor

Date of Hearing: 13, 14 September 1999

Date of Judgment: 12 November 1999