(d) has conspired with others to effect the contravention."
26 In a joint judgment, in Yorke v Lucas (1983-1984) 158 CLR 661, at page 670, the High Court (per Mason ACJ, Wilson, Deane and Dawson JJ) stated:
"In our view, the proper construction of paragraph (c) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention."
27 The third and fourth defendants submitted that the pleadings make numerous averments to other parties and then pleads as a conclusion, or a series of conclusions, knowledge, including knowledge of someone's unfulfilled intentions. The fundamental complaint by the third and fourth defendants is that the pleadings failed to comply with Part 15 Rule 7(1) in that it fails to disclose the material facts from which those conclusions are derived.
28 The plaintiff submitted that the third and fourth defendants have misused the word conclusion. The plaintiff submitted that it was clear from the factual basis that inferences could be drawn and not conclusions, that is, inferences can be drawn from the facts as to the third and fourth defendants' knowledge. For example it is pleaded the third defendant provided facilities for testing the mixture and supplied some of the white spirit. According to the plaintiff, the statement of claim pleads the third and fourth defendants' physical involvement in the offence and the mental elements alleged. In this regard the third and fourth defendants referred to two federal court decisions: Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores (unreported, Goldberg J, Federal Court of Australia, 3 September 1998) and Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd [1999] FCA 142 (24 February 1999, Kenny J). With respect, I did not find these cases of assistance.
29 It is not sufficient that the statement of claim simply express a conclusion drawn from facts which are not stated - see Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114; though in some circumstances to plead a conclusion may be to plead a material fact - see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (Federal Court of Australia, French J, 3 September 1991, unreported). Not only must all material facts be pleaded but they must be pleaded with a sufficient degree of specificity, having regard to the general subject-matter, to convey to the opposite party the case that party has to meet - see Ratcliffe v Evans (1892) 2 QB 524 at 532; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 at 417. It must be apparent on the fact of the document that the facts pleaded, if proved, would establish the cause of action relied upon - see H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246. It is not a function of particulars to take the place of the necessary averments in the statement of claim. Trade Practices Commission v David Jones (Australia) Pty Ltd at 114. Further, a pleading must state the facts that if not specifically pleaded might take the other party by surprise.
30 The third and fourth defendants submitted that all matters pleaded in paras 683 to 692 and 694 to 699 are not capable of constituting aiding and abetting, counselling or procuring within s 5 of the Crimes Act. Whilst it may have been the intention for the first defendant to avoid payment of excise duty, nothing pleaded or particularised equates to an allegation that the third or fourth defendants had anything to do with the intention or carrying it into effect.
31 It is pleaded that the first and second defendants did not have a licence. It has also been pleaded that the petrol had been purchased by the first and second defendants and delivered to and stored at their premises. It is alleged that the first defendant mixed and combined products (as defined earlier) and transported the excisable goods. The elements that constitute breaches of ss 35, 61 and 120 have been properly pleaded as against the first and second defendants. It is pleaded that the third and fourth defendants knew that the first defendant intended to avoid the payment of excise duties. It is also pleaded that they supplied the white spirits that they knew would be mixed with petrol and transported. Nor can it be said that the third and fourth defendants will be taken by surprise at trial.
32 In order for the third and fourth defendants to be found guilty of these offences it must be pleaded that they aided, abetted, counselled or procured by act or omission in any way directly or indirectly, or were concerned in or party to the commission of any offence against the Commonwealth. Paragraph 693 pleads the words above.
33 It is my view that the essential elements of the contravention have been pleaded. The material facts have been pleaded as has their knowledge. The pleading cannot be said to be hopeless. I also bear in mind s140 of the Excise Act. The paragraphs relating to the third and fourth defendants pleaded in the amended statement of claim should not be struck out.
34 The plaintiff conceded that the heading 'Against All Defendants', found from para 18, may need to be amended. It further conceded that there should be additional paras 686A and 695A to the effect that the third and fourth defendants knew that the first defendant was not the grantee of an excise manufacturer's licence pursuant to s34 of the Act. These minor amendments need to be incorporated in a further amended statement of claim.
35 Costs are discretionary. As the third and fourth defendants were largely unsuccessful with their arguments, they should pay the costs of the motion. However, the plaintiff is to pay the costs incurred in making the minor amendments to the further amended statement of claim.
36 The court orders: