Collex Waste Management Pty Ltd v Waste Recycling & Processing Service of New South Wales

Introduction 1 The respondents move for summary dismissal or, in the alternative, other orders. The motion first brought was that of the second respondent, Thiess Environmental Services Pty Limited ("Thiess"), which filed its notice of motion on 19 March 1999. Thiess seeks orders that paras 43 to 47 of the amended statement of claim filed on 11 January 1999 ("the Pleading") be struck out, or that the proceeding be dismissed or stayed as against Thiess, or that the following issues be determined at a separate hearing prior to the hearing of the balance of the proceeding: "(a) whether or not the First and Second Respondents entered into the contract arrangement or understanding (the Strategic Alliance) alleged at paragraph 43 of the Amended Statement of Claim; (b) in the event issue (a) is determined in the affirmative, whether the Strategic Alliance included the provision (the Exclusive Access Provision) alleged at paragraph 44 of the Amended Statement of Claim." I will refer to paras 43 and 44 of the Pleading below. 2 The motion second in time was that of the first respondent, The Waste Recycling & Processing Service of New South Wales ("WS"). By its notice of motion filed 1 April 1999, WS seeks orders that the Pleading be struck out or, in the alternative, that the proceeding be dismissed or stayed as against WS or, in the alternative, that the same issues (set out above) be determined by way of separate hearing prior to the hearing of the balance of the proceeding. In addition, in the alternative to a dismissal or stay, WS seeks an order that an order for expedition previously made by me on the application of the applicant, Collex Waste Management Pty Limited ("Collex"), be revoked. 3 I ordered by consent that the two motions be heard together and that the evidence on one be evidence on the other, save for all just exceptions. 4 Mr R J Webb with Mr N Manousaridis appeared for Collex, Mr F M Douglas QC with Mr A A Henskens appeared for WS, and Mr A J Bannon SC appeared for Thiess. The Pleading 5 Collex commenced the proceeding on 26 August 1998. That date assumes importance because of developments which occurred subsequently. WS is a body corporate established by the Waste Recycling and Processing Service of New South Wales Act 1970 (NSW) ("the Waste Service Act") pursuant to which it has the functions of establishing and operating facilities for the treatment, storage and disposal of waste. The Northern Sydney Waste Planning and Region Management Board ("the Board") is a statutory body constituted under the Waste Minimisation and Management Act 1995 (NSW) and is charged with responsibilities in relation to the disposal of waste in certain local government areas which constitute the Northern Sydney Waste Management Region ("the Region"). Collex and Thiess are proprietary companies engaged in the business of providing waste management services. 6 WS owns, relevantly, two waste transfer stations, one at Wicks Road, Ryde, and the other at Lanceley Place, Artarmon, both within the Region. In the Pleading these are referred to as the "WS Transfer Stations" and I will use the same expression. 7 The Board was interested in contracting for the disposal of putrescible waste emanating from the Region for a period of at least twenty years commencing on 1 January 2001. It issued invitations to tender and received two expressions of interest from Collex, one from Thiess and one from WS. The Board prepared a short list of the first three, that is, the two from Collex and that from Thiess. It is not in issue that on 24 April 1998, the Board advised Thiess and Collex that it required them to make arrangements with WS for the use of the WS Transfer Stations as part of their tenders. At the time of launching this proceeding on 26 August, Collex alleged that WS was having discussions with Thiess but had refused to have discussions with it, Collex, about granting access to the WS Transfer Stations. In short, Collex alleged that WS and Thiess were in a "strategic alliance" which excluded Collex from competing for the award of the contract by the Board. 8 In reasons for judgment published on 10 March 1999 I dealt with earlier motions by the respondents seeking a striking out of certain paragraphs in the original statement of claim filed 26 August 1998 and the supply of further and better particulars. In those reasons I gave an account of that statement of claim. Much of the Pleading is unaltered from the earlier version and I do not propose to give a detailed account of it. The paragraphs that have attracted most attention are para 25 and following. I will now give an account of allegations made in those paragraphs. 9 On 24 September 1998, the Board resolved not to accept any tender but to enter into negotiations with the preferred tenderer, Collex (25). On 23 October, the Board requested Collex to furnish it with information as to its ability to secure the use of the WS Transfer Stations or confirmation of its ability to develop an alternative licensed facility (25A). On or about 22 December, Collex and the Board entered into a contract whereby Collex undertook to provide putrescible waste acceptance, transfer and disposal services in the Region conditionally upon Collex's reaching agreement with any owner of putrescible waste at the "Collection Point" within six months of the date of the contract or such other date as might be agreed between the parties, for acceptance, transfer and disposal of that waste (25B). It should be explained that the "Collection Point" is, relevantly, each WS Transfer Station, and that s 47 of the Waste Service Act provides that any putrescible waste received there is WS's property and may not be removed without its authority. Thus, in effect, the contract between Collex and the Board dated 22 December 1998 is subject to Collex's reaching agreement with WS by 22 June 1999 or such other date as may be agreed between the Board and Collex, for the acceptance, transfer and disposal of WS's putrescible waste in the WS Transfer Stations. 10 In the result, so it is pleaded, the Board is requiring that any person providing the waste acceptance, transfer and disposal services in the Region from 2001 utilise the WS Transfer Stations or other putrescible waste transfer stations within the Region (25C) or, in the alternative, the WS Transfer Stations alone (25D). 11 Collex also pleads, in effect, that the only putrescible waste transfer stations which it is economic and practicable to use are the WS Transfer Stations (25E). 12 In paras 26 and 27, Collex refers to two markets: a market in the Region for the supply of the use of putrescible waste transfer stations for the purpose of enabling the user to provide putrescible waste acceptance, transfer and disposal services in the Region; and a market in the Region for the supply of putrescible waste acceptance, transfer and disposal services. 13 WS is the only entity currently supplying putrescible waste acceptance, transfer and disposal services in the Region (29) and the only putrescible waste transfer stations in the Region are the WS Transfer Stations (30). The only putrescible waste transfer stations in the Sydney Metropolitan Area outside the Region are also owned by WS, namely, transfer stations at Auburn, Seven Hills, Chullora and Rockdale (30A). In other ways also Collex pleads, in effect, that the only putrescible waste transfer stations by the use of which it is economically possible to provide the putrescible waste acceptance, transfer and disposal services are the WS Transfer Stations (31, 32). Accordingly, WS has a substantial degree of market power in the two markets mentioned (33). 14 Between June 1997 and 4 August 1998, Collex requested WS to enter into discussions with it with a view to Collex's securing WS's agreement to Collex's using the WS Transfer Stations in connection with Collex's expression of interest, and, subsequently, Collex's tender (35). But WS did not enter into such discussions and, instead, entered into discussions with Thiess to the exclusion of Collex in relation to Thiess's use of the WS Transfer Stations in connection with Thiess's own expression of interest and tender (36). By 27 August 1998, WS had refused to have discussions with Collex (37). If WS had not owned the only putrescible waste transfer stations in the Region, it would not have refused Collex's request and would, instead, have held discussions with both Collex and Thiess (38). Accordingly, WS's refusal of Collex's request constituted a taking advantage by WS of its market power (39). WS's purpose in refusing to have discussions with Collex was to prevent Collex from entering into the market of supplying putrescible waste acceptance, transfer and disposal services (40), and to deter Collex from engaging in competitive activity in connection with tendering in the future for contracts to supply waste acceptance, transfer and disposal services in relation to waste generated in areas outside the Region (41). WS's refusal constituted conduct in contravention of s 46 of the Competition Code or, in the alternative, s 46 of the Trade Practices Act 1974 (Cth) ("the TPA Act") (42). By reason of the contraventions, Collex has suffered and will suffer damage, namely, its costs of commencing this proceeding and the unlikelihood that it will be able to fulfil the condition of its contract with the Board, that is, reaching agreement with WS for the acceptance, transfer and disposal of the putrescible waste received in the WS Transfer Stations (42A). 15 At some time prior to 15 August 1998, WS and Thiess entered into a contract, arrangement or understanding ("the Strategic Alliance") (43) under which WS was to give to Thiess, to the exclusion of Collex, access to the WS Transfer Stations sufficient to enable Thiess to submit a tender including a statement that a concluded agreement fulfilling the condition of the Board's draft contract had been made between Thiess and Waste (44). That provision had the purpose or would be likely to have the effect of substantially lessening competition in the market for the supply of putrescible waste transfer stations to enable users to provide putrescible waste acceptance, transfer and disposal services in the Region (45). By reason of these matters, the Strategic Alliance contravened s 45(2)(a)(ii) of the Competition Code or, in the alternative, s 45(2)(a)(ii) of the TP Act (46). Thiess gave effect to that provision by notifying the Board that it had entered into an agreement that satisfied the terms of the draft contract and in doing so contravened s 45(2)(b)(ii) of the Competition Code or, in the alternative, s 45(2)(b)(ii) of the TP Act (47). 16 In consequence of all the matters pleaded, Collex has suffered and will suffer loss and damage, particulars of which are its costs of commencing this proceeding and the unlikelihood that it will be able to fulfil the condition of its contract with the Board (47A). The Application 17 In its application filed on 26 August 1998, Collex claims the following relief: "1. A declaration that by entering into discussions with the second respondent to the exclusion of the applicant in relation to the use of the WS Transfer Stations identified to [sic] in paragraph 9(a) of the statement of claim ("the WS Transfer Stations") in connection with the tenders called by the Northern Sydney Waste Board on or about 11 July 1998, the first respondent has contravened s 46 of the Competition Code. 2. A declaration that by refusing to enter into discussions with the applicant in relation to the use of the WS Transfer Stations in connection with the applicant's tender to the Northern Sydney Waste Board, due to be submitted by 28 August 1998 the first respondent has contravened s 46 of the Competition Code. 3. An order that the first respondent make an offer, on terms to be determined by the Court, upon which it will be prepared to make available the WS Transfer Stations to each of the applicant and the second respondent, such offer to be capable of acceptance by whichever of the applicant and the first respondent [sic - second respondent] is awarded the contract to be awarded by the Northern Sydney Waste Board for the supply of acceptance, transfer and disposal services in respect of putrescible waste generated from the Northern Sydney Waste Region on and from 1 January 2001. 4. Alternatively, an order that the first respondent negotiate with the applicant for the use by it of the WS Transfer Stations in connection with the applicant's provision of putrescible waste acceptance, transfer and disposal services in respect of putrescible waste generated in the Northern Sydney Waste Region in the period from 1 January 2001 without reference to the anti-competitive purpose of preventing the applicant from entering into: (a) the markets referred to in paragraph 27 of the statement of claim; and (b) the markets referred to in paragraph 41 of the statement of claim. 5. Further or other orders. 6. Damages. 7. Interest. 8. Costs." The only relief above sought against Thiess is "damages". Reasoning General 18 Order 20 r 2 of the Federal Court Rules provides as follows: "2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding - (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding. (2) The Court may receive evidence on the hearing of an application for an order under sub-rule(1)." 19 After the commencement of this proceeding on 26 August 1998, the Board resolved on 24 September 1998 not to accept any tenders but to negotiate with Collex and, most importantly, on 22 or 23 December 1998 Collex and the Board entered into a contract by which Collex was to provide the putrescible waste acceptance, transfer and disposal services within the Region subject to a condition. The condition was that Collex should reach agreement with, in effect, WS for the acceptance, transfer and disposal of the waste received into the WS Transfer Stations. Negotiations between Collex and WS have been taking place and are continuing in relation to satisfaction of this condition. The Pleading does not allege that WS has not been, and is not, negotiating with Collex in good faith or that it is part of the alleged Strategic Alliance between WS and Thiess that WS would engage in a subterfuge of pretending to negotiate in good faith while, in reality, having no intention of reaching an agreement with Collex which would satisfy the condition of the contract between Collex and the Board. 20 If the condition of the contract dated 22 or 23 December 1998 between Collex and the Board is fulfilled by 22 June 1999 or by such later date as may be agreed, Collex will have achieved the commercial result that it seeks. If the condition is not fulfilled, Collex will not have achieved that result and it may or may not then have a cause of action against someone. Any cause of action to accrue to Collex will be on account of facts which are not presently in evidence before me and which could not be because they necessarily include at least one future fact, that is, the non-fulfilment of the condition of the contract between the Board and Collex. 21 The only relief Collex seeks against Thiess is " damages". Collex seeks damages and other relief against WS. Collex particularises its loss and damage as (1) the costs incurred in commencing this proceeding, and (2) the unlikelihood of its being able to fulfil the condition of its contract with the Board, that is, the unlikelihood that it will reach agreement with WS for acceptance, transfer and disposal of the waste received into the WS Transfer Stations. In my opinion neither is relevant loss or damage. In order for Collex to have a reasonable cause of action, actual loss or damage must have been caused to it by the pleaded conduct of WS and by the pleaded conduct of Thiess by the time of the commencement of the proceeding (26 August 1998). But the costs of commencing the proceeding are caused by the decision of Collex to seek a curial remedy for what it perceives to be an infringement of its legal rights, and the "unlikelihood" to which the Pleading refers is not loss or damage at all and, in any event, is not loss or damage which pre-dated 26 August 1998, since the contract between Collex and the Board was entered into months later on 22 or 23 December 1998. The suffering of loss and damage in this case has always been, and still is, entirely anticipatory. 22 In my opinion, it would be wrong on the evidence to permit Collex to subject the respondents any further to the present proceeding. There is ample and detailed evidence showing that the proceeding has been and will continue to be very costly to them. I have been told that a "massive discovery fight" is going on and will require judicial resolution. I need not recount the detail. The discovery to be given by the respondents, in particular, is very onerous. In my view, Collex seeks discovery in order to see if it has a cause of action. But so far as the evidence before me reveals, the "alliance" between Thiess and WS became a spent force once the Board contracted with Collex on 22 or 23 December 1998. I do not think Collex should be allowed to subject the respondents to a continuation of the proceeding in the hope that, with the benefit of discovery, it will be able to prove that of which there is not the slightest evidence at present: that the alliance between Thiess and WS continues in the face of the Board's having entered into a contract with Collex and infects Collex's dealings with WS. Ordinarily an applicant is treated as entitled to the benefit of discovery before suffering a summary dismissal, but in my view, the position is otherwise where, as here, the applicant has no evidence at all to support its claim and seeks discovery in the hope of finding such evidence. More detail 23 Collex objected to certain affidavit evidence sought to be read on behalf of WS and Thiess on the ground that it was hearsay. 24 Section 75 of the Evidence Act 1995 (Cth) provides: "In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source." (emphasis supplied) Order 33 r 2 of the Federal Court Rules allows the Court or a Judge to admit hearsay evidence in the circumstances there set out on an "interlocutory hearing" (see the definition of "trial" in O 1 r 4). 25 The distinction between final and interlocutory orders is a difficult one that has been much discussed in the context of rights of appeal: see, for example, in the High Court alone, Hall v Nominal Defendant (1966) 117 CLR 423 at 439-440 (Taylor J with whom Owen J concurred) 443-445 (Windeyer J); Tampion v Anderson (1973) 48 ALJR 11 (PC) at 12; Licul v Corney (1976) 180 CLR 213 at 219-220 (Barwick CJ), 225 (Gibbs J); Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 248 (Gibbs CJ), 256-257 (Mason J); Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147 at 152-153 (Gibbs CJ, Stephen and Mason JJ). The test in Australia appears to be whether the legal effect of the order was to dispose finally of the rights of the parties. 26 There is a strong line of authority showing that an order for summary dismissal as sought by the present motions would be an "interlocutory" rather than a "final" order for the purpose of appeal rights: see Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326 especially at 1328; Hall v Nominal Defendant, above, at 440 (Taylor J) and the English cases there referred to; Tampion v Anderson, above, at 12; Wickstead v Browne (1992) 30 NSWLR 1 (CA) at 11 (Handley and Cripps JJA with whom Kirby P agreed). Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 is distinguishable. That was a case of a permanent stay based on the abuse of process ground founded upon an estoppel arising from a special form of res judicata. In that case, the order, although made on an interlocutory application, was held to be a final order for the purpose of appeal rights because it finally disposed of the rights of the parties. 27 It has been recognised that the terms "final" and "interlocutory" may mean different things in different contexts; see Salter Rex & Co v Ghosh [1971] 2 QB 597 (CA) at 600-601; Tampion v Anderson, above, at 12-13; Malouf v Malouf [1999] FCA 284 at para 33 (Beaumont, Lee and Dowsett JJ). On the basis that the present motions could give rise only to an order for dismissal that was interlocutory, that is, an order that would not finally determine the rights of the parties and would therefore, at least theoretically, leave it open to Collex to bring a fresh proceeding based on the very same facts, it might be thought odd if the "proceeding" on and "hearing" of the motions were not also to be classified as interlocutory for the purpose of the admissibility of hearsay evidence. On the other hand, it is to be noted that an order for summary dismissal will finally dispose of the "proceeding", and that the "hearing" is at least final in that respect. Moreover, the seriousness and "finality" of a summary dismissal is assumed in the cases referred to below which caution against a too ready summary dismissal of proceedings. Another matter to note is that even if the "proceeding" and the "hearing" are interlocutory for hearsay purposes, the Court would have the discretion granted by s 135 of the Evidence Act 1995 (Cth) to refuse to admit evidence if its probative value was substantially outweighed by one or more of the considerations mentioned in the section. The provision might have particular relevance to hearsay evidence on a motion for summary dismissal. 28 I do not find it necessary to resolve the present issue because (a) it was not fully debated before me; and (b) in my view, even on the basis of evidence to which Collex did not object, the proceeding should be dismissed. 29 Collex must not be deprived of a final hearing unless the case for summary dismissal is very clear: of the many cases that could be cited, see the well known authorities, Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 (Dixon J); General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 especially at 128-129 (Barwick CJ); Webster v Lampard (1993) 116 ALR 545 especially at 548 (Mason CJ, Deane and Dawson JJ); Walton v Gardiner (1993) 177 CLR 378 at 392-393 (Mason CJ, Deane and Dawson JJ). 30 I turn now to the evidence in more detail. 31 It seems that what prompted the commencement of the proceeding on 26 August 1998 was the writing of a letter by WS to Collex dated 3 August 1998. By that letter, WS advised that after lengthy deliberation, it had decided that Thiess's proposal was more consistent with "the short and long term commercial, strategic and public interest goals" of WS than the various alternative proposals advanced by Collex. The letter continued: "In these circumstances, the various alternate proposals put forward by your company are not acceptable and we confirm our intention to enter into further negotiations with Thiess Environmental Services. If those negotiations are ultimately unsuccessful, we shall give your proposals further consideration." WS wrote to Thiess on 4 August 1998 in generally similar terms, that is, accepting Thiess's proposal and expressing its wish to develop "an agreement for a strategic alliance to establish a new waste management centre". 32 It is necessary to refer to the background to these letters. Thiess's successful proposal was for what it had described as a "partnering" with WS. Agreement by WS was the culmination of a course of communication between Thiess and WS which went back at least to 29 September 1997. 33 In late 1997 the Board invited expressions of interest for the receival, transportation and disposal to landfill of, initially, 400,000 tonnes per annum of putrescible waste. By Memorandum dated 29 September 1997, Thiess suggested that the two entities should have "a co-operative relationship rather than a competing one". On 22 December 1997, Thiess submitted to the Board its "Expression of Interest" in which it stated that it had reached agreement with WS for the use of WS Transfer Stations "for the receival, compacting and loading of waste". In March 1998, the Board advised WS that its own submission in response to the Board's invitation had not succeeded and announced that the Board would be seeking tenders from Thiess and Collex. Their expressions of interest can be described by reference to the respective landfill sites in question as follows: Thiess: Ravensworth Mine Site near Singleton Collex: Bells Ridge Site at Muswellbrook Collex: Woodlawn Mine Site in Mulwaree Shire 34 On 23 April 1998, Thiess wrote to WS suggesting that the Board's tender process was premature and expressing a wish to enter into a "strategic alliance" with WS. 35 As noted earlier, on 24 April 1998 the Board notified Collex and Thiess that it required them to make arrangements with WS for the use of the WS Transfer Stations as part of their tenders. 36 Thiess pursued its communications with WS. On 15 May 1998, WS invited Thiess to provide a "written, fully particularised and costed proposal for consideration", reminding it that this was necessary because it was not the only pre-selected tenderer. 37 On 18 May 1998, Collex wrote to WS a letter which included the following: "We are seriously concerned at the approach being taken by Waste Service. In particular we are concerned that Waste Service is seeking to take advantage of its position as a government owned entity, and to deprive Collex of access to facilities, in each case contrary to the objectives of the National Competition Policy and the agreements in that regard entered into by the NSW Government. There is also material to suggest that this conduct is in breach of the Trade Practices Act. In the circumstances I suggest that a full and frank discussion needs to be held without delay to address the proper parameters of possible co-operation and competition." 38 Apparently the Board issued tender documents in July 1998 with a closing date of 21 August 1998 although the period was later extended. 39 On 28 July 1998, Collex wrote to WS asserting that its most recent discussions with senior management of WS had been "less than productive" and noting that it had been advised that WS was "not at all interested in furthering discussions with Collex while [WS was] pursuing a landfill option in Cessnock" but that "if Cessnock was not successful then there may be an opportunity". 40 The next communication of present significance is WS's letters of 3 and 4 August 1998 to Collex and Thiess to which I have previously referred. 41 On 14 August, Thiess wrote to the Singleton Shire Council advising that its proposal had been accepted by WS and that it understood that Collex's had been rejected. It advised the Council that it understood that Collex did not have access to the WS Transfer Stations. A Thiess briefing paper dated 17 August 1998 claimed that WS had entered into a strategic alliance with Thiess whereas Collex would have to construct new transfer stations in the Region and negotiate directly with the constituent councils to procure their waste. 42 Collex commenced this proceeding on 26 August 1998. 43 On 28 August 1998, WS and Thiess entered into "Heads of Agreement". The Heads of Agreement recited that the parties had agreed to enter into a "strategic alliance" to establish a new waste management centre. The Heads of Agreement were expressed to be subject to the preparation of final documentation to be agreed by the parties' solicitors. It was recited that Thiess was to submit a tender agreed to by both Thiess and WS to the Board for the acceptance, transport and disposal of residual putrescible waste. The document did not limit the description of the waste by reference to the Region. The document referred to the work as "the Project" and recited that the parties had agreed on the division of the work and services between them in the execution of the Project, if Thiess should be the successful tenderer and should enter into a contract with the Board. WS undertook, inter alia, to bear the transfer station modification and operational costs in relation to, inter alia, the WS Transfer Stations, but also in relation to transfer stations at Belrose and Auburn, and to grant Thiess access. Thiess was to procure and bear landfill development and operational costs in relation to any one of the "Ravensworth site" or the "Big Ben site (also referred to as the Ashtonfields site)". There was also reference to the "Old Maitland Road, Cessnock, site". The Heads of Agreement touched on various other matters including the sharing of profits from the Project, and included the following: "Should the contract not be awarded to Thiess [by the Board], the Parties agree that the intent is to proceed with the Project on the same basis as if the contract had been awarded." There was some argument before me about the meaning of this sentence. While its meaning is not obvious, I think it clear that it did not mean that even if Thiess should not be the successful tenderer to the Board, nonetheless the parties would proceed with a project covering the very services which Thiess would have been denied, by its failure before the Board, the opportunity of supplying. The sentence was probably intended to cover other activities encompassed within the Project. It will be recalled too that the Heads of Agreement referred to Belrose and Auburn transfer stations as well as the WS Transfer Stations and to landfill sites other than the Ravensworth site. 44 On 9 October 1998 Mr Dean, the Managing Director of Collex, wrote to Ms Lenehan, the Chairperson of WS, referring to a recent statement by her that WS was "not interested in competing with itself" by allowing Collex access to the WS Transfer Stations while proposals of WS itself (involving landfill sites at Neath, Bloomfield and Singleton) were still alive. The letter noted that Ms Lenehan had said that if WS were unsuccessful, it would be prepared to discuss access with Collex. Finally, Mr Dean's letter referred to "personal animosity" which some senior staff of WS seemed to bear to Collex and suggested that the fact that WS was in competition in some areas with Collex, "one of [WS's] 'biggest customers'", should not preclude a "professional relationship" between WS and Collex. 45 A letter of 27 November 1998 from WS to Collex included the following: "Since our letter to you of 3 August 1998, the NSWB has nominated your company as its preferred tenderer. Although the position is not entirely clear, it would seem that as matters presently stand, your company is well placed to secure the NSWB Contract. As you are no doubt aware, part of our current business is to receive residual putrescible waste collected on behalf of councils in the NSWB region. You have indicated in the past a desire to utilise the transfer stations now operated by us in the NSWB region. We also understand that any Contract awarded by the NSWB to your company will be on the basis that you will transport waste from an identified rail head by rail to locations outside of Sydney. As our transfer stations are currently configured, they will not compact waste in a form suitable for rail transportation and would require substantial modification. Your various proposals made in your letter to us dated 24 June 1998 each contemplated, in effect, your company having control over our transfer stations. The purpose of this letter is to ascertain whether your company is prepared to enter into discussions contemplating your company having access to but not control over our northern Sydney transfer stations. Should this be the case, we would appreciate a written proposal from you setting out your thoughts on access and how it might best be affected. We look forward to receiving your Proposal and discussing it with you." 46 On 9 December 1998, Collex wrote to WS seeking a meeting and discussion and an assurance that Thiess was not "a necessary party to these negotiations". In the letter Collex advised that it appreciated WS's oral assurance that an earlier letter from WS faxed to Collex on 1 December (perhaps the reference was to WS's letter dated 27 November) was "intended as a genuine approach to resolve the issues between [Collex and WS]." 47 On 15 December 1998, WS replied to Collex agreeing to a meeting and discussion and advising that the arrangement between Thiess and WS did not relate to waste controlled by Collex. WS enclosed an agenda for a meeting between WS and Collex proposed for 21 December which included the item "Suspension of litigation". 48 On 21 December 1998 the foreshadowed meeting between representatives of Collex and WS took place. 49 On 22 or 23 December 1998, the Board entered into the landfill contract with Collex. 50 On 23 December 1998, Thiess wrote to WS suggesting that the two entities enter into a contract "as has been discussed, as soon as possible". So far as the evidence reveals, nothing came of this suggestion and in any event the contract contemplated could hardly have been the one with WS that Collex has been seeking. 51 A further meeting between representatives of Collex and WS occurred on 27 January 1999. 52 On 28 January 1999 the Board wrote to WS advising it that the Board had signed the landfill contract with Collex on 23 December 1998. 53 On 9 February 1999 WS forwarded to Collex a draft deed providing for Collex to have access to the WS Transfer Stations. I need not discuss further the terms of the draft. 54 On 12 February 1999, Collex raised a number of points in relation to the draft. There was a further meeting of representatives of WS and Collex on 17 February. On 24 February, Collex proposed amendments and on 15 March 1999 it forwarded to WS a note of further changes it wanted to discuss. 55 There was a further meeting of representatives of Collex and WS on 19 March. On 30 March, WS's solicitors forwarded to Collex WS's proposed form of agreement. On 12 April, Collex's solicitors forwarded to WS's solicitors an annotated deed between WS and Collex and confirmed a meeting for the next day, 13 April. That meeting was postponed to 14 April when further discussions took place between representatives of WS and Collex. 56 Collex submits that when it commenced this proceeding it had a cause of action which might be referred to as "WS's exploitation of its market power by refusing to deal with Collex" and that the subsequent developments on which WS and Thiess rely should be pleaded by them by way of defence, in which event Collex would file a reply alleging that the purported negotiations between WS and Collex have not been accompanied by good faith on the part of WS. However, the difficulty with this proposition, as I see it, is that on the facts revealed by the evidence, the alleged refusal to deal cannot lead to the granting of any relief because it was, on the Pleading and on that evidence, a spent force by the end of 1998. It is incumbent on Collex to plead facts showing a causal connection between the alleged refusal to deal and the circumstances now warranting the granting of the relief sought in its application: see, for example, Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 71 ALR 615 at 622 (FC/French J); Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd (1998) ATPR 41-641 at p 41,096-41,097 (GoldbergJ); BT Australia Pty Ltd v State of New South Wales (1999) ATPR 46-187 at p 52,314 (Sackville J). It is not sufficient, in my view, for Collex to plead "a refusal to deal" and in response to clear evidence that WS has in fact been dealing with it, to refrain from making the allegation now essential to its case that in reality the refusal to deal is continuing because WS is engaged in a subterfuge. 57 Collex has had ample opportunity to put on evidence directed to showing that WS is not, and has not been, negotiating in good faith. It has not suggested that it actually has such evidence of a subterfuge by WS, although counsel appearing for it has said from the Bar Table that Collex would so allege by way of reply. Collex does not seek leave to amend the Pleading, contending that it is not required to allege and prove, as part of its case in chief, absence of good faith on the part of WS. Collex wishes to have the benefit of discovery in the hope of finding evidence of bad faith. 58 It is difficult to avoid the impression that because of its suspicion and distrust of WS and Thiess which took root in 1998, Collex is keeping the present proceeding on foot with a view to ensuring that WS deals with it honestly. I infer that it is doing so. It is, of course, an abuse of the Court's process to persist in a proceeding for that purpose, whether or not that purpose infected the commencement of the proceeding. 59 It appears to me that Collex does not have a reasonable cause of action for obtaining any of the relief which it seeks and that maintenance of the proceeding is vexatious and is an abuse of the Court's process. Conclusion 60 For the above reasons, the proceeding should be dismissed summarily. If Collex fails to reach an agreement with WS which satisfies the condition of Collex's contract with the Board, Collex will be at liberty to commence a fresh proceeding, albeit based in part on facts alleged in the Pleading. I will stand over the question of costs to a date for submissions.