Dresna Pty Ltd v Misu Nominees Pty Ltd

THE PROPOSED FURTHER AMENDED STATEMENT OF CLAIM 18 The PFASC is a lengthy and complex document. It runs for forty-three pages and contains one hundred and thirteen paragraphs. It pleads many causes of action against the respondents, including: · a claim in contract against Franklins for breach of the Mentone BSA; · a claim in contract against Franklins for breach of the Litigation Agreement, and a claim in equity for breach of fiduciary duty; · a claim in tort against Coles for inducing breach of contract; · a claim in tort against Franklins and Coles for conspiracy; · a separate claim in tort against the Lessor and Coles for conspiracy; and · a claim against Franklins for breach of s 52 of the TPA. 19 I discuss each of these causes of action in some detail below.

Breach of the Mentone BSA 20 Dresna alleges that Franklins breached the terms of the Mentone BSA, outlined at [9] above, by: · entering into an agreement, arrangement or understanding with Coles, some time between September and November 2001, whereby Franklins agreed to sell the businesses that were conducted at a number of stores that were the subject of the Franklins Undertakings; · alternatively, entering into an agreement, arrangement or understanding with Coles that it would sell the business conducted at the Mentone store; · not disclosing to Dresna the fact that Coles had entered into an agreement with the Lessor to lease the Mentone premises; · not disclosing to Dresna the fact that it had provided to the ACCC the confidential submission seeking its consent to the sale to Coles of the supermarket business carried on at the nine stores that were the subject of the Franklins Undertakings; · terminating the Mentone BSA on the grounds that it had not been possible to procure the Lessor's consent to the assignment of the Mentone lease so that Franklins could give effect to the agreement, arrangement or understanding that it had with Coles; · selling the supermarket business that it conducted at the Mentone store to Coles, on or about 20 December 2001, for approximately $2.3 million plus stock; and · failing to make full and frank disclosure to Dresna of all matters within its knowledge relevant to the implementation of the Mentone BSA, including the assignment of the Mentone lease. 21 Dresna claims that, as a result of Franklins' breaches of the Mentone BSA, it suffered loss and damage.

Breach of the Litigation Agreement and breach of fiduciary duty 22 Dresna claims that the Litigation Agreement was a "joint venture" between itself and Franklins, that gave rise to contractual obligations and fiduciary duties. It claims that Franklins breached these obligations, and these duties, when it withdrew as plaintiff from the Supreme Court proceeding. Dresna identifies the breaches as having occurred when Franklins: · entered into one or other of the agreements, arrangements or understandings to which reference is made at [20] above; · failed to disclose that it had entered into one or other of these agreements, arrangements or understandings; · failed to disclose that, on 23 November 2001, it had provided the confidential submission to the ACCC; and · failed to act in good faith in implementing the Litigation Agreement. 23 Dresna claims that by reason of Franklins' breaches of its contractual obligations, and of its fiduciary duties, it lost the benefit of the Mentone BSA, and otherwise suffered loss and damage.

Inducing breach of contract 24 Dresna claims that Coles acted tortiously by inducing Franklins to breach the Mentone BSA. It supports that claim by referring to the conduct specified in pars 59, 60, 61, 63, 65, 68, 71, 72, 73, and 74 of the PFASC. Essentially, that conduct includes the site visit, approval of the letter agreement, reaching an agreement with Franklins to purchase the various businesses conducted at a number of its stores, carrying out various "due diligence" exercises, and providing the supporting letter to the ACCC. 25 Dresna claims that Coles knew, as from August 2001, of the Mentone BSA or, alternatively, that Franklins had agreed to sell the Mentone supermarket business. It claims that as a result of Coles' actions, it lost the benefit of the Mentone BSA, and otherwise suffered loss and damage.

Conspiracy by unlawful means between Franklins and Coles 26 Dresna alleges that Franklins and Coles conspired, by unlawful means, to injure it by engaging in the conduct specified in pars 65, 68, 69, 70, 71, 72, 73, and 74 of the PFASC. Essentially, that conduct includes agreeing to sell the various businesses conducted at the stores listed in the Franklins Undertakings, providing the ACCC with the confidential submission, carrying out the various "due diligence" exercises, and providing the supporting letter. 27 Dresna claims that by engaging in this conduct, Franklins and Coles "acted in combination", by unlawful means, to deprive Dresna of the benefit of the Mentone BSA, and thereby cause it harm. Dresna specifically identifies the "unlawful means" as:

• breaches of the Franklins Undertakings;
• "false suggestions";
• contraventions of s 52 of the TPA; and
• the various breaches of the Mentone BSA and the Litigation Agreement to which I have previously referred. 28 Dresna claims that as a result of the conspiracy, it lost the benefit of the Mentone BSA, and otherwise suffered loss or damage.

Conspiracy by unlawful means between the Lessor and Coles 29 Dresna claims that the Lessor and Coles conspired, by unlawful means, to injure it by engaging in the conduct specified in pars 53, 55, 56, 58, 60, 61, 62, 63, and 64 of the PFASC. Essentially that conduct includes dealing with the Lessor in relation to leasing the Mentone store, offering to lease that store (that is, the letter agreement), approving the letter agreement, inducing the Lessor to refuse consent to the assignment of the lease to Dresna, and undertaking to the Lessor that in the event it was able to purchase the business at the Mentone store, Coles would honour the terms of the lease that had been agreed between itself and the Lessor (rather than take an assignment of the lease). 30 Dresna claims that the conspiracy occurred in two stages. The first stage occurred prior to 10 August 2001. Dresna says that, at that time, the Lessor and Coles entered into an agreement whereby Coles would purchase the Mentone business with the intention of depriving the "independent operator" that entered into an agreement to purchase that business of the benefit of that agreement. 31 The second stage of the conspiracy occurred after 10 August 2001. Dresna claims that after that date, the Lessor and Coles, now having knowledge of the Mentone BSA, conspired to deprive Dresna of the benefit of that agreement. 32 Dresna identifies the "unlawful means", by which the conspiracy was said to be implemented, as the Lessor's refusal to consent to the assignment of the Mentone lease. It should be noted, in that regard, that the Lessor claimed, when it refused to assign the lease, that Franklins had not proved to its reasonable satisfaction that Dresna was "of comparable commercial standing" to Franklins. The Lessor also claimed that the lease provided for an assignment to "a major supermarket chain with national representation". Manifestly, the Lessor argued, Dresna did not meet that description. 33 Dresna claims that the Lessor was not entitled to refuse consent to the assignment upon either of these grounds. It takes particular exception to the second ground, since it claims that the Mentone lease did not contain any such requirement. It argues that the refusal to consent was unreasonable, and that the Lessor thereby breached the terms of the lease. 34 Dresna claims that the conspiracy resulted in its having lost the benefit of the Mentone BSA, and otherwise having suffered loss and damage.

Franklins' contraventions of s 52 of the TPA 35 Dresna claims that Franklins engaged in misleading or deceptive conduct, in breach of s 52 of the TPA, by representing that it knew of no reason why Dresna should not be successful in obtaining an assignment of the Mentone lease. It further claims that Franklins contravened that section by falsely representing that it had disclosed, and would disclose, any matter relevant to the assignment of the lease. 36 Dresna argues that Franklins made these representations at a time when it was fully aware that Coles had "done a deal in principle" with the Lessor with respect to the Mentone store, based on vacant possession. It further contends that at the time the representations were made, Franklins had already entered into an agreement, arrangement or understanding with Coles in relation to the Mentone store, and indeed, other stores as well. It claims that Franklins was aware that there was little chance that the Lessor would consent to the assignment, given the prospect that Coles might become a tenant. It argues that Coles must have been seen as a more attractive tenant than Dresna. 37 Dresna claims that Franklins had a duty to disclose the various matters set out in the preceding paragraph. It argues that by remaining silent about those matters, Franklins engaged in misleading or deceptive conduct. It alleges that, as a result, it lost the benefit of the Mentone BSA.

THE APPLICATION FOR LEAVE TO FILE THE PFASC 38 When Dresna originally commenced this proceeding in the Supreme Court of Victoria, its case was essentially quite straightforward. It claimed, at that stage, that the Lessor had acted wrongfully, and in breach of the Mentone lease, by refusing to consent to the assignment of that lease. As indicated earlier, because Dresna was not a party to that lease, it could not itself sue for that breach. Rather, it needed Franklins to bring that proceeding. The Litigation Agreement was the mechanism by which Franklins was to undertake that role. Dresna agreed to indemnify Franklins for any costs incurred as a result of agreeing to act as plaintiff in that proceeding. 39 Once Franklins terminated the Litigation Agreement, and Coles' involvement in what had occurred became clear, the nature of Dresna's claim changed fundamentally. Franklins was no longer a plaintiff, and had to be joined as a defendant instead. Coles, too, was brought in to the proceeding as a defendant. The case became significantly more complex. It was inevitable that Dresna would have to make substantial amendments to its statement of claim. New causes of action were included, while others were discarded. At least with regard to these early amendments, Dresna was not to blame. 40 In December 2002, Dresna's case changed dramatically. For the first time, it pleaded a claim of misuse of market power under s 46 of the TPA. It was virtually inevitable thereafter that the Supreme Court of Victoria would transfer this proceeding to the Federal Court, given its exclusive jurisdiction under Pt IV of that Act. Indeed, the proceeding was transferred on 13 December 2002. 41 Shortly thereafter, Dresna sought yet again to amend its statement of claim. According to an affidavit sworn by its solicitor, on 12 March 2003, these amendments resulted from a "review" of its "conspiracy related claims". Importantly, Dresna now sought to abandon its misuse of market power claim, the very matter that had led to the transfer. It also sought to abandon certain conspiracy claims that it formerly made against Coles. On 20 March 2003, I granted Dresna leave to file an "Amended Statement of Claim" reflecting these changes. 42 The application to this Court for leave to file the PFASC is, as I have previously indicated, either its ninth or eleventh application to amend its statement of claim. As against the Lessor, it is said to be the eleventh such application. As against Franklins, it is said to be the ninth such application. It is the fourth application to amend the case against Coles. 43 Dresna says that leave should be granted in order that the "real questions raised" can be determined, in accordance with O 13 r 2(2) of the Federal Court Rules. That sub-rule provides: "All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings." 44 Dresna submits that the principles governing the operation of this rule, and others like it, are well established. In The Commonwealth v Verwayen (1990) 170 CLR 394, Dawson J said at 456: "The rules of court have always provided that leave to amend pleadings may be given for the purpose of determining the real question in controversy between the parties … and an amendment should ordinarily be allowed if any harm arising from so doing can be compensated for by the imposition of terms upon the party asking for the amendment… The usual terms which are imposed are an order for costs or an adjournment. In granting leave to amend, a court is concerned with the raising of issues and not with their merits. Of course, an amendment which is futile because it is obviously bad in law will not be allowed. But it is no ground for refusing an amendment that it raises a claim or defence which ought not to succeed. That will be an issue upon trial. An amendment may, however, be refused because it is made at such a late stage that neither costs nor an adjournment can compensate the other side for the failure to raise the issue at an earlier stage." 45 Dresna argues that, subject to certain specific objections, to which I shall return, leave to amend should be granted. It claims that any prejudice to the respondents arising from the grant of such leave can be the subject of compensation by an appropriate order for costs. It accepts that it has had a number of opportunities, in the past, to plead its case. However, it contends that the earlier pleadings, at least, should be disregarded because it lacked the information necessary to enable it to formulate its case with precision. 46 Dresna relies, in support of its application for leave to amend, upon Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 ("JL Holdings"). In that case, the High Court referred to the well known passage in the judgment of Bowen LJ in Cropper v Smith (1884) 26 ChD 700 where his Lordship said at 710: "…the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases…." 47 Dresna argues that the High Court made it clear in JL Holdings that justice is the paramount consideration in determining an application for leave to amend. It contends that save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its past mistakes. 48 In responding to the specific objections raised by the respondents to particular paragraphs in the PFASC, Dresna adopts what Dawson J said in Verwayen. An amendment that is futile because it is obviously bad in law will not be allowed. But it is no ground for refusing an amendment that it raises a claim that ought not to succeed. Dresna argues that the well known statements in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, and General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 at 129, should govern this aspect of its application.

The respondents' position 49 As I understand the respondents' position, they do not challenge Dresna's formulation of the general principles governing an application for leave to amend. They contend, however, that this case has a number of unusual features that warrant the refusal of leave. They claim that some of the causes of action pleaded in the PFASC are obviously untenable, in the Dey and General Steel sense. They say that it would therefore be futile to permit Dresna to rely upon them. They also claim that the Court should, in any event, refuse leave, in the exercise of its discretion, because of the lengthy and chequered history of this matter, and Dresna's obvious inability to formulate a case against them. 50 It may be convenient, at this stage, to summarise the specific objections taken by the respondents to a number of Dresna's proposed causes of action.

The Lessor's specific objections 51 Dresna's only cause of action against the Lessor in the PFASC is a claim that it conspired with Coles, by unlawful means, to injure Dresna. That cause of action is pleaded in pars 99 to 104. The Lessor claims that these paragraphs do not disclose a reasonable cause of action, have a tendency to cause prejudice, embarrassment or delay, and are an abuse of process of the Court. 52 The Lessor claims that the conspiracy pleading is defective for the following reasons: · In relation to the period prior to 10 August 2001, the target of the alleged conspiracy is not identified with sufficient particularity. Rather, the target seems to be "the world at large". In addition, Dresna does not plead any facts that support its allegation that the Lessor and Coles agreed, or combined, to deprive "the independent operator" of the benefit of any agreement to purchase Franklins' business, and thereby cause "it"harm. In substance, the Lessor claims that the pleading is defective because it does not, and cannot, allege that there was an agreement, the object of which was to injure Dresna. · In relation to the period after 10 August 2001, the Lessor argues that Dresna has not pleaded any facts that support its allegation that the Lessor, together with Coles, "breached the Mentone lease". Nor does Dresna plead any facts that support its allegation that the Lessor, together with Coles, sought to deprive Dresna of the benefit of the Mentone BSA, or otherwise cause it harm. · The Lessor further contends that the PFASC fails to plead any facts to suggest that, but for the supposedly unlawful means agreed upon between the Lessor and Coles, there is any basis for concluding that Dresna, or some other "independent operator", would have received the benefit of the Mentone lease. Thus Dresna cannot establish that it sustained any loss or damage as a result of anything that the alleged conspirators supposedly did. 53 The Lessor also argues that the PFASC offends a number of the rules governing pleadings. It refers, in that regard, to O 11 of the Federal Court Rules, which requires a statement of claim to state, with sufficient clarity, the case that must be met. It also makes clear that the purpose of a statement of claim is, in substance, to define the issues. A pleading must contain, and contain only, a statement in a summary form of the material facts upon which a party relies. The material facts are those necessary for the purpose of formulating a complete cause of action. Statements that are conclusory, drawn from facts not alleged in a statement of claim, are not material facts. Particulars are no substitute for material facts. 54 The Lessor submits that the PFASC does not plead all material facts. Pars 99 - 104 allege that the Lessor, together with Coles, acted in combination, in two stages, to injure Dresna. There is the pre-10 August 2001 stage, and the post-10 August 2001 stage. Dresna seeks to rely upon the same unlawful means, namely the breaches of the Mentone lease, as the basis for both stages of the conspiracy. However, the Lessor contends that this cannot be done. In order to sustain a cause of action for conspiracy by unlawful means, Dresna must plead facts that, if proved, would establish that the Lessor agreed with Coles to use unlawful means in order to injure it. Dresna must also prove that it thereby sustained harm. The Lessor argues that par 103 of the PFASC fails to plead any facts capable of leading to either of these conclusions. 55 More specifically, the Lessor claims that the pleading regarding the first stage of the conspiracy is irredeemably defective because it fails to allege what must be a material fact, namely that the conspirators intended, by unlawful means, to injure Dresna. The pleading alleges that the parties "acted in combination", intending to injure "the independent operator", whoever that might be. The Lessor submits that this is tantamount to targeting "the world at large". It says that it is not surprising that the pleading is drafted in this way. The Mentone BSA was not executed until about 10 August 2001. Prior to that time, Dresna could not have been the target of the alleged conspiracy. 56 The Lessor questions whether an unlawful means conspiracy can be pleaded in this way. It notes that the PFASC does not define "the independent operator". Nor does it provide any basis for the assertion that the Lessor was aware that this entity, whoever it might be, intended to enter into an agreement with Franklins to purchase the Franklins business. 57 The Lessor argues that an intention merely to harm some entity cannot found a cause of action in conspiracy. The party targeted by the conspirators must be identified. It is not sufficient simply to establish that the conspirators combined to do an unlawful act, and that the applicant suffered loss or damage as a result of that act. 58 The Lessor accepts that there may be cases where it will be sufficient to allege that the conspirators intended to cause harm to a number of persons as a "class". However, that principle has no application to the present case. It can only be invoked where all members of the class are targeted, and the class is finite. The allegation in the PFASC is that the conspirators combined, by unlawful means, to harm anyone who might fall within the category of "independent operator" (that is, anyone other than the miniscule class of national supermarket operators). The class is almost infinite. 59 As for the period after 10 August 2001, the Lessor argues that the PFASC does not contain any facts that, if proved, would establish that it intended to injure Dresna. There is nothing in the PFASC to suggest that the Lessor was even aware of the existence of the Mentone BSA, still less that the Lessor was aware that Dresna was a party to that agreement. Likewise, Dresna has not pleaded any facts to support its allegation that the Lessor set out to harm it by depriving it of the benefit of that agreement. 60 The Lessor submits that a critical aspect of any pleading alleging a conspiracy by unlawful means must be an allegation, supported by material facts, that the conspirators intend to adopt "unlawful means" to effect their purpose. The only unlawful act identified in the pleading is the breach of the Mentone lease. However, Dresna does not plead any facts that, if proved, would establish that the Lessor, or for that matter Coles, in fact breached the lease. Dresna pleads only that Coles induced the Lessor to refuse consent to the assignment, and that the Lessor ultimately refused such consent. No facts establishing a causal link between the inducement and the refusal are pleaded. Moreover, it cannot be assumed that even if there had been such an inducement, the Lessor could not validly have refused consent. In fact, the Lessor contends, consent was validly refused. 61 Another of the Lessor's arguments is that the unlawful means alleged for depriving Dresna of the benefit of the Mentone BSA is not the same act on its part, as the act on the part of Coles. To speak of "breaches of the Mentone lease" as the unlawful means employed is to conceal the fact that the lease involved a contract between the Lessor and Franklins. Coles was not, at any time, a party to that lease. It could not breach a contract to which it was not a party. The Lessor argues that one party cannot conspire with another to breach its own contract with a third party. Because the acts allegedly committed by the Lessor and by Coles must necessarily be different, there can be no combination between them "to do the same act". 62 Finally, the Lessor contends that even if "the unlawful means" alleged are sufficient to found a cause of action, Dresna has failed to plead that, but for those unlawful means, it would not have suffered damage. The breach alleged is a refusal on the part of the Lessor, and Coles, to consent to the assignment by Franklins of its lease to Dresna. The Lessor submits that it was impossible for Coles to either grant or withhold such consent. 63 The Lessor further notes that, the terms of the Mentone lease provided that consent to an assignment ought not be unreasonably withheld. The Lessor was required to consent to the assignment if Franklins proved to its reasonable satisfaction that the proposed assignee was a "respectable, responsible and solvent person or company of sound financial standing of comparable commercial standing" to the assignor. The Lessor argues that all that can be said, assuming that the facts pleaded in the PFASC are proved, is that the Lessor considered that Dresna did not meet this description. It was open to the Lessor to come to that conclusion.

Franklins' specific objections 64 As noted earlier, the PFASC includes a series of claims against Franklins. Dresna alleges that Franklins breached the Mentone BSA, the Litigation Agreement, and also its fiduciary duty. It also alleges that Franklins and Coles conspired, by unlawful means, to derive it of the benefit of the Mentone BSA, and that Franklins engaged in misleading or deceptive conduct, in breach of s 52 of the TPA. 65 Franklins argues that the conspiracy allegations, in particular, are misconceived. It says that the various matters that Dresna relies upon to constitute unlawful acts, namely "false suggestions", breaches of the Franklins Undertakings, and "the s 52 claim", cannot form the basis for the tort of conspiracy. It also argues that the conspiracy pleading is defective because it does not allege a common intention on the part of the supposed conspirators "to perform the same unlawful act". Finally, Franklins contends that Dresna's pleading regarding "loss and damage" is hopelessly defective. I shall deal with each of these contentions in turn.

False suggestions 66 Dresna alleges, in par 82 of the PFASC, that Franklins' confidential submission to the ACCC contained "false suggestions", and was thereby unlawful. Franklins argues that the pleading is based upon a misconception that merely making a false statement to a government official, in circumstances where what is sought is some form of licence or consent, is an unlawful act. It submits that there is no warrant for that assumption, notwithstanding the observations of Gummow J in Prestige Group (Australia) Pty Ltd v Dart Industries Inc (1990) 26 FCR 197 ("Prestige") at 213-219, upon which Dresna relies. 67 Franklins argues that Prestige was concerned solely with the statutory grounds for revocation of a patent. A patent can be revoked if obtained by fraud, "false suggestion" or misrepresentation: see Patents Act 1952 (Cth) s 100(1)(k) and Patents Act 1990 (Cth) s 138. The expression "false suggestion" derives from statute, and has no application outside the realm of patent law. 68 Dresna replies by noting that it relies not merely upon Prestige, but also upon the line of authority in England that culminated in the two "Lonrho cases", Lonrho plc v Fayed [1990] 2 QB 479 at 489-490 and 492, in the Court of Appeal, and Lonrho plc v Fayed [1992] 1 AC 448 at 470, in the House of Lords. For convenience, I shall refer to these two cases collectively as Lonrho v Fayed. 69 In Lonrho v Fayed, it was held that certain false statements made to the Secretary of State could form a proper basis for the tort of conspiracy by unlawful means. Dresna submits that its reliance upon "false suggestions" is supported by these two cases. However, Franklins submits that nothing in either case supports Dresna's claim.

Breach of the Franklins Undertakings 70 Dresna alleges in pars 77-81 of the PFASC that Franklins breached its undertakings to the ACCC by entering into various agreements with Coles, and other matters. It argues that this breach of the undertakings constitutes "unlawful means" for the purposes of the alleged conspiracy between Franklins and Coles. 71 Franklins replies by noting that Dresna does not seek any compensation arising out of the alleged breach of these undertakings. Nor could Dresna do so. Section 87B of the TPA enables the ACCC to apply to the Court for an order directing the person in breach of any such undertaking to compensate any other person who has suffered loss or damage as a result of the breach. However, the section does not confer standing on any private person to allege a breach of any undertaking, or to contend that any failure to comply with an undertaking is unlawful. Franklins submits that it is not unlawful, in any relevant sense, to breach a s 87B undertaking. Such a breach cannot therefore constitute "unlawful means" for the purposes of the tort conspiracy.

Section 52 claim 72 Dresna alleges in par 83(a) of the PFASC that, in providing its confidential submission to the ACCC on 23 November 2001, Franklins engaged in misleading or deceptive conduct, in breach of s 52 of the TPA. 73 Franklins argues that this allegation is obviously untenable. The conduct in question could not conceivably be described as having taken place "in trade or commerce". Not all conduct engaged in by a corporation in the course of its trading, or other activities is conduct "in trade or commerce". The High Court has given that expression a narrow interpretation. In Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 it was held that the expression was confined to "the central conception" of trading and commercial activities of a corporation. Franklins argues that merely providing a confidential submission to the ACCC cannot be regarded as falling within this "central conception".

Unlawful means conspiracy 74 Dresna alleges in par 94 of the PFASC that Franklins conspired with Coles, by unlawful means, to deprive Dresna of the benefit of the Mentone BSA. As noted earlier, Dresna relies upon "false suggestions", the breaches of the Franklins Undertakings, and the misleading or deceptive conduct in breach of s 52, as well as Franklins' breaches of the Mentone BSA and the Litigation Agreement to which I have previously referred, as the "unlawful means" in question. 75 Franklins contends that, for the reasons it advances, none of these allegations, even if proved, is capable of amounting to "unlawful means". Accordingly, the conspiracy claim itself is untenable. 76 Franklins also argues that the alleged conspiracy adds nothing to Dresna's other claims against it. It is therefore "mere surplusage". The purpose of the conspiracy, as alleged, is to deprive Dresna of the benefit of the Mentone BSA. Dresna says that this purpose was to be achieved, at least in part, by breaching that same agreement (as well as the Litigation Agreement). Yet the breaches of the Mentone BSA, and of the Litigation Agreement, are pleaded as distinct causes of action in pars 84-93 of the PFASC. Franklins argues that it is not generally open to a party to plead, as an alternative to a substantive cause of action already pleaded, the tort of conspiracy to commit that substantive wrong. 77 In addition, Franklins complains that Dresna has failed to allege a mutual intention on the part of the supposed conspirators "to perform the same unlawful act". This too is said to constitute an irremediable defect. 78 Finally, Franklins contends that there are major deficiencies in the PFASC's treatment of Dresna's supposed loss and damage. Par 89 alleges that as a result of the breaches of the Mentone BSA, Dresna lost the benefit of that agreement and "otherwise suffered loss and damage". Particulars are then provided for amounts totalling over $11 million. That figure is said to represent lost profits anticipated from operating the supermarket, costs incurred in this proceeding during the period September to December 2001, and costs ordered to be paid by Dresna. Dresna claims that but for these breaches, it would have learned that Coles had entered into an agreement to lease the Mentone store. It would then have notified the ACCC of that fact, and taken legal action seeking interim and interlocutory injunctive relief against Coles to restrain it from entering into that lease. 79 Franklins argues that the claim for loss of profits is plainly doomed to fail. Irrespective of anything that it may have done, Dresna could only have obtained and operated the Mentone store if the Lessor had consented to an assignment, which, plainly, it did not do. There would also need to be proof that an expedited hearing of the matter would have been granted in the Supreme Court of Victoria, and that Dresna would have succeeded, against the Lessor, in having its refusal to assign the lease declared unreasonable. Franklins submits that all of this is highly problematic. 80 Franklins also advances lengthy and detailed arguments as to why Dresna cannot possibly hope to succeed in relation to its claims for costs actually incurred. In the interests of keeping these reasons for judgment within reasonable bounds, I shall not attempt to set these out.

Coles' specific objections 81 Dresna relies upon three distinct causes of action in its claim against Coles. It alleges that Coles induced Franklins to breach the Mentone BSA, and that it conspired with each of Franklins, and the Lessor, by unlawful means, to injure Dresna. 82 In summary, Coles' specific objections to the PFASC are dealt with below.

Inducing breach of contract 83 Coles argues that the PFASC is defective in so far as it pleads the tort of inducing breach of contact. Dresna seeks to rely, in support of that claim, upon the letter that Coles provided to the ACCC, on 5 December 2001. However, that letter post-dated the alleged breach of the Mentone BSA. It could not therefore be relevant to the tort as pleaded. Coles submits that Dresna has now apparently conceded this point.

Unlawful means 84 Coles argues that Dresna's conspiracy pleading is defective because a number of the acts that are relied upon to constitute "unlawful means" are not relevantly unlawful. Even if Coles' supporting letter contained "false suggestions", as alleged, a proposition that it denies, the making of such suggestions is not of itself "unlawful". Moreover, the sending of the letter to the ACCC was not conduct "in trade or commerce". As such, it could not give rise to a breach of s 52 and could not therefore be "unlawful". Finally, Coles contends that the particulars of the common intent of the alleged conspirators provided in the PFASC do not point to any "joint or combined intent or agreement to commit the (allegedly) unlawful acts relied upon". 85 Coles argues, as does the Lessor, that Dresna's allegation that it conspired with the Lessor, prior to 10 August 2001, to injure "the independent operator" does not give rise to any cause of action. It also argues, as does Franklins, that it is incorrect to assert that merely making "false suggestions" to a government agency is unlawful. It submits that neither Prestige, nor Lonrho v Fayed, establish any such principle. 86 With regard to the allegation that Coles engaged in misleading or deceptive conduct, in contravention of s 52 of the TPA, by sending the supporting letter to the ACCC, Coles submits that this claim is misconceived. Whatever Coles did, was not relevantly conduct "in trade or commerce". It did not, of its nature, bear a "trading or commercial" character. It submits that this issue need not await the evidence adduced at trial, but can be determined at this stage.

Dresna's reply to the respondents' specific objections 87 Dresna's reply to the respondents' specific objections is divided into the various components set out below.

Whether the victim of a conspiracy must be specifically identified 88 Dresna submits that it is not correct to claim, as both the Lessor and Coles do, that the target of the alleged conspiracy, prior to 10 August 2001, was "the world at large". The target was "the independent operator" that purchased the Franklins business at Mentone, whoever that might be. 89 Dresna argues that although the target of a conspiracy may not be able to be identified with precision at a particular time, there is no difficulty with the concept that the conspirators intend harm to that person, whoever that might be, at that time. It is sufficient to plead an intention to injure the applicant, or a class of persons of which the applicant is a member. That, in substance, is what Dresna has done.

Whether "false suggestions" can constitute "unlawful means" 90 Dresna submits that there is no magic in the term "false suggestion". Expressions such as "false statement" or "false representation" would be equally apposite. 91 Dresna argues that the two Lonrho cases are directly in point. Both the Court of Appeal and the House of Lords held, at least implicitly, that the defendants' false statements to the Secretary of State about their financial capacity to acquire share capital, and develop a business, could form the basis of a conspiracy by unlawful means. Dresna draws further support for this contention from the observations of Gummow J in Prestige. It submits that there is no authority that holds to the contrary, and contends that the point is at least arguable.

Whether breach of an undertaking given under s 87B can constitute "unlawful means" 92 Dresna submits that it is not correct to claim, as Franklins does, that breach of an undertaking to the ACCC cannot constitute unlawful conduct. It says that there is no authority to support Franklins' contention, and that the courts have repeatedly said that the categories of "unlawful means" are not closed. It follows, so Dresna submits, that this aspect of its claim must at least be arguable.

Whether the submission to the ACCC was conduct "in trade or commerce" 93 Dresna submits that it is not correct to claim, as both Franklins and Coles do, that the confidential submission and supporting letter provided to the ACCC were not made "in trade or commerce". Each communication was made in order to advance the commercial and business interests of the alleged conspirators. Franklins desired to divest itself of the stores. Coles wished to acquire them. A corporation can engage in conduct "in trade or commerce" even though dealing with a regulator, and not a consumer. Contrary to Coles' submission, whether conduct is "in trade or commerce" will generally depend upon the evidence, taken as a whole. Dresna contends that its claim is at least arguable.

Whether the unlawful act or means must be "the same act" 94 Dresna argues that it is not correct to claim, as the Lessor does, that all parties to a conspiracy by unlawful means must intend to commit, and commit, "the same act". The assumption underlying this proposition is that the conspirators must agree on the performance of an act that is "the unlawful act" of them all. That assumption is misconceived. There is no reason, for example, why one person cannot conspire with another to have that other breach a contract with a third party.

Whether the conspiracy claim is "mere surplusage" 95 Dresna submits that it is not correct to say, as Franklins does, that the conspiracy claim in this case is "mere surplusage". Here, Dresna does not, and arguably cannot, seek relief in relation to any of the unlawful acts upon which it relies. It is therefore justified in pleading a conspiracy by unlawful means in order to seek redress for those acts. In any event, Dresna is entitled to rely upon a claim of conspiracy in order to add parties to this proceeding who might otherwise escape liability. The claim in conspiracy also allows Dresna more readily to seek aggravated damages.

Whether unlawful acts must be actionable at the suit of the applicant 96 Dresna submits that, contrary to Coles' argument, there is no principle that a conspiracy by unlawful means requires proof of unlawful acts that are themselves actionable at the suit of the applicant. It is true that this principle finds support in some English cases. However, Dresna argues, it is not part of Australian law.

Consideration 97 In broad terms, the respondents argue that Dresna should not be given leave to file the PFASC for two quite separate reasons. First, they say that the pleading is defective, particularly in relation to the manner in which it alleges the tort of conspiracy. Second, they say that leave should be refused on discretionary grounds. 98 Before dealing with these objections, it may be useful to set out, in summary form, my understanding of the principles that govern this variant of the tort of conspiracy.

General principles 99 The traditional formulation of the tort of conspiracy is as follows. Conspiracy is "the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means": Mulcahy v R (1868) LR 3 HL 306 at 307. See also Ahern v The Queen (1988) 165 CLR 87 at 93. In other words, conspiracy takes two distinct forms:

1. an "unlawful means" conspiracy in which the parties combine together to perform acts which are themselves unlawful; and
2. a combination to perform acts which, although not themselves unlawful, are done with the sole or predominant purpose of injuring the claimant. 100 There is now a substantial body of authority dealing with these two forms of conspiracy. The major English cases include: Allen v Flood [1898] AC 1 at 108; Quinn v Leathem [1901] AC 495; Sorrell v Smith [1925] AC 700; Crofter Hand Woven Harris Tweed Co v Veitch [1942] AC 435; Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 ("Lonrho v Shell"); and Lonrho v Fayed. This Court has considered a number of these cases in recent years. See for example: Elliott v Seymour [1999] FCA 976; McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409; and Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34. 101 In Bullen & Leake & Jacob's Precedents of Pleadings, 14th ed., 2001, at 823, the necessary elements of an action in conspiracy are said to be: · a combination or agreement between two or more individuals (required for both types of conspiracy); · an intent to injure (required for both types of conspiracy but must be shown as the sole or predominant purpose for type 2 above); · pursuant to which combination or agreement and with that intention certain acts were carried out; · resulting loss or damage to the claimant. 102 In Maritime Union v Geraldton, RD Nicholson J elaborated upon the legal requirements necessary to establish the tortious conspiracy pleaded by the applicants. His Honour said, at 102, that the following matters had to be proved: "(a) each of the alleged three co-conspirators was a party to an agreement or combination with either of the other two co-conspirators; (b) the purpose of that agreement or combination was to injure the applicants by unlawful means; (c) the agreement or combination was carried into effect by the commission of agreed unlawful acts; and (d) those unlawful acts caused damage to the applicants." 103 A conspiracy can be proved without evidence of an express agreement. A court is entitled to have regard to the overt acts pleaded, and to infer from those acts that there was an agreement to further the common object of the combination. All of those said to be parties to the conspiracy should be sufficiently aware of the surrounding circumstances, and share the same object, for it properly to be said that they are acting in concert. 104 As indicated above, the two forms of conspiracy differ in relation to the mental element that must be proved. It is now established that, for an "unlawful means" conspiracy, it is not necessary to show a predominant intent to injure: see the House of Lords' decision in Lonrho v Fayed, overruling Metall und Rohstoff A.G. v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391, and explaining Lonrho v Shell. However, an "unlawful means" conspiracy still requires proof of an intention to injure. Regrettably, a number of the cases tend to be decided on assumed facts, or on applications to strike out. This means that the concept of "intention" is often glossed over, and analysed with less precision than it ought to be. 105 Lonrho v Shell provides a useful illustration of the difficulties associated with this concept. Shell had constructed an oil refinery in what was then Southern Rhodesia. Lonrho constructed a pipeline to that refinery from a port in Mozambique. In November 1965, the government of Southern Rhodesia unilaterally declared independence. The United Kingdom enacted legislation, the "sanctions order", making it a criminal offence to supply oil to Southern Rhodesia. No further oil was shipped to Lonrho's pipeline, causing that company loss and damage. The facts to be assumed by the House of Lords for the purpose of the appeal were that Shell, and others, had, in breach of the "sanctions order", covertly supplied Southern Rhodesia with oil by other means, thereby prolonging the state of illegal independence, and the time during which Lonrho's pipeline was out of use. 106 It was clear that the breach of the "sanctions order" did not give rise to any action in tort for breach of statutory duty. However, Lonrho also framed its case as a conspiracy by Shell and others to contravene the "sanctions order". That claim, too, failed because although Shell might well have been aware of the effect of its actions on Lonrho, in no sense did it, and the alleged co-conspirators, "intend" to injure Lonrho. 107 It is generally thought that the correct test of intention in this context is that stated by Lord Denning MR in the Court of Appealdecision in Lonrho Ltd v Shell Petroleum Co Ltd [1981] Com LR 74. His Lordship said at 75: "I would suggest that a conspiracy to do an unlawful act - when there is no intent to injure the plaintiff and it is not aimed or directed at him - is not actionable … But if there is an intent to injure him then it is actionable. The intent to injure may not be the predominant motive. It may be mixed with other motives … It is sufficient if the conspiracy is aimed or directed at the plaintiff, and it can reasonably be foreseen that it may injure him, and does in fact injure him." 108 In Grupo Torras SA v Sheikh Fahad Mohammed Al-Sabah [1999] All ER (D) 698, Mance LJ adopted Lord Denning's formulation. His Lordship said that it was a requirement of this form of conspiracy that it be "aimed or directed" at the claimant. In McKellar, I too adopted this formulation. I said, at 435, that the requirement, though perhaps difficult to apply in some cases, was intended to prevent claims by those who suffered incidental, though foreseeable loss, as a result of the commission of what is sometimes described as "undirected conduct". 109 In Grupo Torras, Mance LJ went on to say that the tort required that it be shown that the defendant reasonably foresaw that the unlawful acts would injure the claimant. However, his Lordship noted that reasonable foreseeability would not, of itself, give rise to liability. Importantly for present purposes, he made it clear that the target "aimed at" could be "a general one". Where, for example: "…persons combine to abstract monies from a group and then to cover up and account for the abstraction in any way they can, an intent to injure or defraud any company which, as a result of their operations, ends up bearing the loss, may readily be inferred." 110 Grupo Torras was ultimately reversed on appeal. However, this passage was not subjected to criticism. 111 Grupo Torras is discussed in Winfield & Jolowicz on Tort, 16th ed., 2002, at 653. The learned authors observe that, on the approach taken by Mance LJ, a conspiracy by unlawful means could be established in circumstances where, for example, A and B conspired to use such means with the aim of driving competitor C out of the market, thereby creating a monopoly. There would be no need to establish any malice on the part of A and B towards C. 112 In Bullen & Leake & Jacob,the requirements for pleading an "unlawful means" conspiracy are set out in some detail at 824. It is suggested that each unlawful act should be pleaded as a separate cause of action. The learned authors note, however, that the cause of action for such a conspiracy: "…is probably not limited to circumstances where the wrongful means are themselves actionable by the claimant in the conspiracy action". 113 Winfield & Jolowicz, at654, agree with this proposition. 114 There is, however, an alternative view. Some cases suggest that each unlawful act relied upon in an unlawful means conspiracy must itself be actionable. See generally Rookes v Barnard [1964] AC 1129 at 1204; Lonrho v Shell at 186; Credit Lyonnais Bank Nederland NV v Export Credit Guarantee Department [1998] 1 Lloyds LR 19 at 32; Yukong Line Ltd of Korea v Rendsburg Investments Corp of Liberia (No. 2) [1998] 4 All ER 83 at 98-101; Michaels v Taylor Woodrow Developments Ltd [2001] Ch 493 at 503-511. See also Surzur Overseas Ltd v Koros [1999] 2 Lloyds CR 611 at 616-617; Grupo Torras; and Fatimi Ltd v Bryant (2002) Aust Tort Rep 81-677. 115 There is also an ongoing debate regarding the nature of the "unlawful means" required for the purpose of this variant of the tort of conspiracy. In Michaels v Taylor Woodrow, it was said that the cases at present "do not present an entirely consistent picture". That statement seems to be borne out by an analysis of the authorities. What is clear, however, is that the unlawful act may be a tort, or a breach of statute. See, for example, Williams v Hursey (1959) 103 CLR 30 at 76-79 per Fullagar J, and 104-108 per Taylor J; Coal Miners' Industrial Union of Workers (WA), Collie v True (1959) 33 ALJR 224; and Maritime Union of Australia v Geraldton Port Authority at 104. 116 There are dicta that suggest that a conspiracy by unlawful means can be committed where a third party was deceived in a way that ultimately caused the claimant loss i.e. where the unlawful act relied upon was not actionable at the suit of the plaintiff: see the Court of Appeal decision in Lonrho v Fayed at 489 and 492, referring to National Phonograph Company v Edison-Bell Consolidated Phonograph Company [1908] 1 Ch 335. In Yukong Line, Toulson J took the opposite view. See also the discussion of this point by Mance LJ in Grupo Torras, and by Laddie Jin Michaels v Taylor Woodrow.

Is the "target" too general? - the conspiracy prior to 10 August 2001 117 Dresna alleges in par 103(b) of the PFASC that there was an: "…intention to deprive the independent operator that entered into an agreement to purchase the Franklins' business at Mentone, of the benefit of that agreement, and thereby cause it harm". 118 The Mentone BSA was not executed until 10 August 2001. It follows, so the respondents say, that the Lessor and Coles could not have acted in concert, with the intention of depriving Dresna of anything, prior to that date. 119 In my view, the respondents' submission should be accepted. It is not sufficient for Dresna to plead a cause of action in conspiracy in this form. The tort requires an intention to injure: Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 150 per Drummond J. An agreement to do an unlawful act that results in damage to another party is not the same as a conspiracy to injure that party. 120 The starting point in considering this issue is Vickery v Taylor (1910) 11 SR (NSW) 119. By his statement of claim, the plaintiff in that case alleged that the defendant company conspired with the other defendants to raise the price of its shares and to induce members of the public to pay more for those shares than would otherwise be the case. 121 Street J said at 130: "the authorities… show that when a conspiracy is aimed, not at an individual or at a class of individuals, but at the public, the damage sustained by a member of the public is too remote to give a right of action. If the law were otherwise, the result would be that if, for instance, persons combined to raise the price of flour by making false statements as to the available supplies of wheat, and if, as a result of this, the price of flour rose, any member of the public who had to pay more for his flour would have a right of action against the members of the combination." 122 His Honour went on to say, at 130-131, that the judgments in Quinn v Leathem, if carefully examined, showed that, in order to prove conspiracy, it was necessary for the plaintiff to demonstrate that "the wrongful act complained of was done with the design of injuring him" (emphasis added), and that it did in fact injure him. Otherwise the damage would be too remote. 123 It is true that Street J also said, at 130, that a conspiracy could be directed, not at a particular individual, but at a "class". However, it is tolerably clear that what his Honour had in mind in making that observation was a conspiracy directed at all the members of the class, and not simply at any members of the public who might be affected by what was being done. As the Lessor submits, Dresna has not pleaded, and cannot plead, that either the Lessor, or Coles, intended to injure the entire class of persons known as "independent operators". The PFASC refers to "the independent operator". This could be any member of the public, apart from a national supermarket chain. 124 Several cases cited by the Lessor implicitly support this conclusion. In Beach Petroleum NL v Johnson (1993) 43 FCR 1, von Doussa J said at 19: "As the alleged conspiracy is one involving unlawful means, it is sufficient merely for the applicants to prove that the combination of the defendants to do one or more of those unlawful acts resulted in damage to them. It is not necessary for the applicants to further prove that the predominant purpose of the conspirators was an intention to injure the applicants: Lonrho plc v Fayed [1992] 1 AC 448; Williams v Hursey (1959) 103 CLR 30..." (emphasis added) 125 In McWilliam v Penthouse Publications Ltd [2001] NSWCA 237, Mason P, with whom Handley and Hodgson JJA agreed, stated, in relation to an allegation of conspiracy to injure by unlawful means, that an agreement to do an unlawful act, such as a tort or breach of contract, will be an actionable conspiracy if carried into effect and causative of damage. After citing various authorities, his Honour said at [13]: "These principles emphasise that a plaintiff in a case such as the present must establish intent to injure the plaintiff. It is not enough to establish that the acts of the conspirators necessarily involved injury to the plaintiff or that the plaintiff was a person reasonably within the contemplation of the conspirators as a person likely to suffer damage…" (emphasis added). 126 I am unable to accept Dresna's submission that expressions of this kind do not mean what they say. It is true that in Grupo Torras, Mance LJ held that an intention to injure "any" company within a group that was targeted would suffice. However, that is a far cry from what is pleaded in the PFASC. There is no small, and easily ascertainable group of the kind that his Lordship must have had in mind when he used the word "any". 127 There has been considerable debate, in the criminal law, regarding the question of how precise the terms of one or more of the alleged conspirators' purpose or agreement must be before liability for conspiracy is incurred. The better view seems to be that a conspiracy should not be charged in generalised terms. There must be a sufficient degree of precision, as identified in the particulars, to enable the accused to know the nature of the allegations brought against him. Where there is clearly an agreement for a relevant unlawful purpose, in acceptably specific terms, it does not matter that the precise details of its implementation have not been settled. But if the failure to agree on aspects of a scheme goes beyond transactional details to more fundamental matters, the conspiracy will not be established. See generally P Gillies, The Law of Criminal Conspiracy, 2nd ed., 1990, at 34-36. 128 In Elliott v Seymour, Ryan J indicated that he would only be prepared to allow the applicant to continue to allege a conspiracy between the National Crime Authority, and various other alleged co-conspirators, if the statement of claim specified with sufficient particularity the time and making of each agreement between the alleged conspirators, the unlawful means agreed to be employed, and the facts or circumstances which made them unlawful. 129 The degree of precision required by the authorities tells strongly against Dresna's somewhat amorphous formulation, where the intent to injure is expressed in terms that are nebulous at best. This part of the PFASC does not identify any specific targets, or any group within which such a target could readily be ascertained. In these circumstances, I am of the view that Dresna should not be granted leave to plead a conspiracy, by unlawful means, to injure "the independent operator", in the form contemplated.

The post-10 August 2001 conspiracy 130 That takes me to the second stage of the conspiracy alleged against the Lessor and Coles. As indicated earlier, the Lessor submits that Dresna has failed to plead any facts that, if proved, would establish that the Lessor and Coles intended to injure it. In particular, the Lessor submits that the PFASC pleads no facts to support the allegation that it was aware of the Mentone BSA, or that Dresna was a party to that agreement. The Lessor further submits that no facts are alleged that, if proved, would establish that it, or for that matter, Coles, breached the Mentone lease. It argues that all that Dresna has asserted is that the Lessor refused consent to the assignment after Coles induced it to do so. However, that is of no consequence if such refusal was justified as, the Lessor submits, it was. Accordingly, the Lessor contends no "unlawful means" could ever be established, in relation to the period post-10 August 2001. 131 In addition, the Lessor argues that even if Dresna was deprived of the benefit of the Mentone BSA by unlawful means, any unlawful act on the part of the Lessor was not "the same" as any unlawful act on the part of Coles. The Mentone lease was a contract between the Lessor and Franklins. Coles was not a party to that contract. Obviously, the Lessor could breach its contract with Franklins. It could not, however, conspire with Coles to breach its contract with Franklins. See IMAC Security Services Pty Ltd v Tyco Australia Pty Ltd [2002] VSC 592 at [27] per Redlich J. 132 The Lessor relies upon O'Brien v Dawson (1942) 66 CLR 18 as support for this contention. There, Starke J dealt with an allegation that the defendant company and one of its directors conspired to procure a breach of an agreement between the director and the plaintiff. His Honour made it clear that, in his view, this contention was untenable. The director breached his contract and the company knowingly procured him to do so. However, as his Honour observed at 27: "Both committed an unlawful act, but they were acts of a different nature and not a combination to do the same act." 133 Dresna argues that the Lessor's submission on each of these points is misconceived. It denies having alleged that Coles breached the Mentone lease. It says that it has pleaded sufficient facts to support the allegation contained in par 103(c) of the PFASC that the Lessor and Coles combined, from about 10 August 2001, to use unlawful means to breach the Mentone lease with the intention of depriving Dresna of the benefit of the Mentone BSA. It refers to the particulars of that allegation: "That this was the intention of Coles and the Lessor is to be inferred from the fact that a prerequisite for a lease of the premises to Coles was that the sale of the business to the Applicant (pursuant to the Mentone BSA) could not proceed. Both Coles and the Lessor were aware, as at or about August 2001 of the Mentone BSA (see paragraphs 34 and 57 above)." 134 Dresna submits that these particulars provide a proper foundation for this inference. It says that if the matters set out in the particulars ought to have been pleaded as material facts, then that is a matter that can be rectified. 135 Dresna further submits that a breach of contract is capable of amounting to "unlawful means" for the purposes of the tort of conspiracy: Clerk and Lindsell on Torts, 18th ed., 2000, par 24-128. It says that the Lessor is wrong in suggesting that "both participants in a conspiracy must commit the [same] unlawful act or acts": Clerk and Lindsell, par 24-120. 136 Were this the trial of the proceeding, I would have to resolve the debate surrounding this issue. However, I am being asked to deal with these matters on a quite different basis. The only question that I need to consider, for present purposes, is whether Dresna's proposed claim is arguable. Both the Lessor and Coles submit that it is not. I am unable to accept their submission. 137 If there are material facts that Dresna ought to have pleaded, but has omitted to plead, that is a matter that can be cured. If some of the facts alleged have been set out in the particulars, rather than in the pleadings, as they ought to have been, then that too is a matter that can be rectified. 138 The respondents may be correct in a number of their legal submissions. It is certainly arguable that a conspiracy by unlawful means requires that the unlawful acts relied upon themselves be actionable on the part of the applicant. It is also arguable that such a conspiracy requires that the alleged conspirators commit the same unlawful act or acts. There is case law to support both propositions. 139 It cannot be said, however, that these propositions are self-evident. Nor can it be said that the contrary views are untenable. 140 Dresna argues that there is no requirement that unlawful acts be actionable at the suit of the plaintiff if they are to be relied upon in an unlawful means conspiracy. In Fatimi, Campbell J referred at [183] to the observations of Laddie J in Michaels v Taylor Woodrow. His Honour held that the view expressed by his Lordship to the effect that the unlawful activities had to be actionable in their own right, did not correctly state the law applicable in New South Wales. He referred to various statements by the High Court in Coal Miners at 227 and Williams v Hursey at 78-80, 108, and 122, and by the New South Wales Supreme Court in Southan v Grounds (1916) 16 SR (NSW) 274, as authority for the proposition that "unlawful means" did not need to be activity which, if committed by one person alone, without any conspiracy, would be actionable in damages. Moreover, as Dresna submits, none of the Australian textbooks on tort, and none of the Australian cases dealing with conspiracy, refer to this limitation. It seems to me, therefore, that Dresna's contention must at least be arguable. 141 The same is true of Dresna's submission that there is no requirement that the unlawful act or means must be "the same act". The Lessor relies for this limitation largely upon what Starke J said in O'Brien v Dawson. It can be argued, however, that his Honour was not seeking to lay down any proposition of general application. 142 Dresna makes the same point regarding Redlich J's proposition in IMAC Security Services that "a party cannot conspire with another to breach its own contract with a third party". It argues that in principle, there is no difficulty with the notion that a party can conspire in this way. Dresna's point seems to me to be at least arguable. 143 The principles that govern summary dismissal of a claim because it discloses no reasonable cause of action require that this remedy be "sparingly invoked": Dey v Victorian Railways Commissioners, and General Steel Industries. I discussed these and other similar cases at some length in McKellar at 415-417. The respondents accept that a similar approach must be adopted when determining whether specific objections to a proposed pleading should prevail on an application for leave to amend. They say, however, that this is a case where it is clear that a number of the pleadings in the PFASC are untenable. 144 Having given this matter careful consideration, and approaching the issue in accordance with the Dey and General Steel principles, I am not persuaded by the respondents that Dresna's claims regarding the second stage of the alleged conspiracy, post 10 August 2001, are untenable.

Can false suggestions constitute unlawful means? 145 Dresna relies heavily upon the House of Lords' decision in Lonrho v Fayed in support of its contention that "false suggestions" can constitute unlawful means. In that case, Lonrho wished to acquire control over a company that owned, inter alia, Harrods. It was prevented from increasing its stake in that company by an undertaking given to the Secretary of State, pending the outcome of a reference to the Monopolies and Mergers Commission. 146 The first three defendants, by the medium of the fourth defendant, made a rival bid for one hundred per cent of the share capital of the company. The directors of the company approved that offer, and the defendants gained control. The plaintiff issued a writ against the defendants and, in its statement of claim, alleged that the first three defendants, by false statements about their financial capacity to acquire the share capital and develop the company's business, had persuaded the board of directors to accept their bid, and the Secretary of State not to refer their bid to the Commission. Lonrho claimed that by such action the defendants had tortiously interfered with its right to bid for the shares. Alternatively, it claimed that the defendants had conspired against it. 147 The defendants applied for an order striking out the statement of claim on the ground that it disclosed no cause of action. The Court of Appeal held that since the statement of claim did not allege that the predominant purpose of the alleged conspiracy was to injure the plaintiff, the Court was bound by previous authority to hold that the pleaded cause of action in conspiracy must fail. However, the plaintiff reserved the right to contest that issue in the House of Lords. 148 On appeal to the House of Lords, it was held that where the primary or predominant purpose of the alleged conspirators was to further or protect their own legitimate interests, but where there was also the intent to injure the plaintiff, it sufficed to render their conduct tortious that they used unlawful means. The case was not one that should be struck out, but should proceed to trial. 149 Dresna submits that in Lonrho v Fayed, the House of Lords implicitly accepted that the false statements allegedly made constituted a sufficient basis for the tort of conspiracy by unlawful means. 150 As noted earlier, Dresna also relies upon the analysis of Gummow J in Prestige as support for the proposition that an interest or benefit obtained from the Crown by a material falsehood is amenable to impeachment at common law, or in equity. By analogy, it claims that "false suggestions" are "unlawful means" for the purposes of the tort of conspiracy. 151 Franklins and Coles submit that these arguments are misconceived. They say that Lonrho v Fayed is not in point. There was no plea of "false suggestion" in that case. The judgment did not specifically address the question whether proof of such conduct could amount to unlawful means. They submit that the plea of "false suggestion" adds nothing to Dresna's claim, except to complicate it unnecessarily. Dresna already has a s 52 claim against Franklins in relation to the confidential submission made to the ACCC. They argue that striking out a pleading that is speculative, and likely to be time-consuming, would be in everyone's interest. 152 In my view, there is substance in some, at least, of the respondents' submissions. Prestige is of no real assistance to Dresna. That case dealt specifically with the construction of the expression "obtained on a false suggestion or representation" in s 100(1)(k) of the Patents Act 1952 (Cth). It is true that Lockhart J observed, at 198, that the words "false suggestion or representation" were of wide import, and that this expression was based on "equitable notions of good faith, fairness, conscionable conduct and honesty". However, his Honour did so in a specific context. He had to determine whether an applicant for a patent who had misled the Commissioner, in a material respect, in the course of procedures that led to the grant of the patent, should be deprived of the benefit of his misleading conduct. He concluded that such conduct warranted the revocation of the patent. He did not conclude, however, that merely making a false suggestion was an unlawful act. 153 Gummow J construed the relevant expression against the historical background of "recall of grants not regularly made" by writ of scire facias. His Honour observed, at 204, that the term "false suggestion" had a long history in relation to the repeal of patents. He noted, for example, that a United States statute of 1793 provided for repeal if a patent had been "obtained surreptitiously or upon false suggestion". He also noted that the writ of scire facias had been utilised, prior to its final abolition in the United Kingdom in 1947, to repeal grants made by letters patent. He dealt, at 216, with the alternative procedure for revocation of letters patent by bill in equity, based upon equitable fraud. Once again, however, there was nothing in his Honour's reasons for judgment that suggested that the making of a "false suggestion" to a body such as the ACCC was, of itself, unlawful. 154 It is important to note that Pt II of the TPA provides for the establishment of the ACCC, and confers upon that body various powers. The TPA makes provision for persons to appear before the ACCC to give evidence, and makes it an offence to give evidence that is false or misleading in a material particular. There are also provisions, such as s 152DH, that make it an offence to produce documents in answer to a summons that, to the knowledge of the person producing them, are false or misleading in a material particular. There are, however, no provisions within the TPA, of which I am aware, that render the making of a "false statement", or "false suggestion", unlawful per se. 155 The common law has always proceeded upon the basis that what is not specifically prohibited is permitted. It may be morally reprehensible to make a "false suggestion" to the ACCC. Much will depend upon whether the word "false", in that context, means objectively incorrect, or deliberately untrue. See generally Murphy v Farmer (1988) 165 CLR 19, and Musgrave v Martin [2003] FCA 920. Whatever conclusion one comes to regarding that proposition, I doubt that merely telling a lie to a regulatory agency, such as the ACCC, could, of itself, be regarded as unlawful. It would require a specific statutory proscription to bring about that result. 156 The only statutory proscription that I have been able to discover that might conceivably be relevant is the current form of what was formerly the offence of imposition under s 29B of the Crimes Act 1914 (Cth) (now repealed). That section provided: "Any person who imposes or endeavours to impose upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain money or any other benefit or advantage, shall be guilty of an offence." 157 The offence of imposition carried a maximum penalty of two years' imprisonment. On one view, it made it unlawful to make a "false suggestion" to a body such as the ACCC, assuming that it is "a public authority under the Commonwealth", and provided that this was done with a view to obtaining money or any other benefit or advantage. The offence did not require proof of dishonesty. 158 The offence of imposition dates back to the Middle Ages. Its origins lie in legislation providing for the punishment of rogues and vagabonds. The history of the offence was considered in detail in Joyce v Grimshaw (2000) 105 FCR 232 at 241-243. As noted in that case, there are the clearest links between the Vagrancy Acts of the nineteenth century, and the offence under s 29B introduced in 1926. 159 Section 29B was repealed by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth). That Act came into force on 24 May 2001 and was in force at the time the "false suggestions" pleaded in the PFASC were made. Imposition was no longer an offence. It was replaced by two new offences, contained in ss 136 and 137 of the Criminal Code Act 1995 (Cth). Section 136.1 prohibits the making of false or misleading statements in "an application for a licence, permit or authority", "an application for registration", or "an application or claim for a benefit". It is difficult to see how either the confidential submission provided by Franklins, or the letter of support sent by Coles, could be characterised as falling within any of these descriptions. 160 Section 137.1 is more problematic. It prohibits knowingly giving false or misleading information to, inter alia, "a Commonwealth entity". It seems to me to be arguable that knowingly making a "false suggestion" to the ACCC could constitute an offence under this section, assuming that the "false suggestion" contains "information", and assuming that the ACCC is a Commonwealth entity. The question is whether the pleading, as presently drafted, alleges facts that, if proved, might give rise to an offence of that kind. 161 Dresna alleges in par 82 of the PFASC that, by reason of the matters set out in pars 65, 66 and 68, Franklins' confidential submission made "false suggestions" in the respects referred to in par 70, and Coles' supporting letter made "false suggestions" in the respects referred to in par 74. Par 70 describes Franklins' confidential submission as "misleading or deceptive". It alleges that the submission did not refer to the fact, which Franklins knew, that Coles had entered into an agreement with the Lessor, contingent on the Lessor obtaining vacant possession, and did not refer to the "agreement, arrangement or understanding" between Coles and Franklins referred to in par 65, or alternatively par 68. Par 74 does not refer to Coles' letter as misleading or deceptive. However, it contrasts what is said to be the true position with what the supporting letter itself represented. 162 To describe this method of pleading "an unlawful act" for the purpose of this form of conspiracy as complex would perhaps be an understatement. There is, of course, no reference in the pleading to any possible statutory offence, still less to an offence under s 137.1. It is unlikely that those responsible for drafting the PFASC ever considered the possibility that the conduct alleged might amount to a criminal offence. 163 If s 137.1 can be invoked as the basis for Dresna's contention that the confidential submission and the supporting letter were relevantly "unlawful means", the pleading would need to be amended in order to make that allegation clear. Neither Franklins nor Coles can reasonably be expected to plead to the allegation in its present form. For that reason, I would not grant leave to Dresna to pursue its "false suggestion" allegation without first making some significant amendments. 164 Because Dresna has relied upon the making of "false suggestions" to the ACCC as a basis for its claim of conspiracy by unlawful means, and because I consider that there may be some justification (though not presently pleaded) for the contention that the making of such suggestions is unlawful, I am unable to say that the PFASC raises a cause of action that is obviously untenable. It follows that subject to a properly drawn pleading being filed regarding this issue, I would be disposed to permit Dresna to rely upon the alleged "false suggestions" as the unlawful means. I shall return to the question whether Dresna should be permitted to file the PFASC, as a matter of general discretion, shortly.

Whether breach of an undertaking given under s 87B of the TPA can constitute "unlawful means" 165 Dresna alleges in pars 77-81 of the PFASC that Franklins, by entering into various agreements with Coles, and other matters, breached the undertakings that it gave to the ACCC. Under s 87B(4)(c) of the TPA, only the ACCC can apply to the Court for a compensation order. Dresna acknowledges that it has no standing directly to allege a breach of the Franklins Undertakings, or to seek compensation for any such alleged breach. Accordingly, it does not do so. 166 Franklins argues that Dresna's submission that a breach of a s 87B undertaking is relevantly an unlawful act is misconceived. It submits that the cases upon which Dresna relies, namely Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 at 139, and Davies v Nyland (1975) 10 SASR 76 at 96, both concerned industrial action, and union interference with contracts. Neither dealt with breach of an undertaking, still less breach of an undertaking given pursuant to a statute that prescribes its own specific sanctions. 167 It is true that the categories of "unlawful means" are not closed. They plainly include breach of statute. Nonetheless, I am unable to accept Dresna's contention that a breach of an undertaking given under s 87B is relevantly an "unlawful act" for the purposes of the tort of conspiracy by unlawful means. The section does not confer private rights and was plainly never intended to do so. It would be inappropriate, in those circumstances, to permit the section to be invoked indirectly as the "unlawful means" for the tort of conspiracy. To interpret the section in that way would be to give it greater scope in the area of private rights than the legislature intended. It follows that I will not permit Dresna to rely on the breach of the Franklins Undertakings as a basis upon which it grounds its conspiracy claim.

Whether the alleged breach of s 52 can constitute "unlawful means" 168 Both Franklins and Coles dispute Dresna's contention that the confidential submission, and the supporting letter, contained misleading or deceptive statements. It follows, they say, that the alleged breaches of s 52 of the TPA cannot amount to "unlawful means" for the purposes of the tort of conspiracy. 169 However, their main argument against Dresna's reliance upon s 52 is that the alleged conduct did not, and could not, have occurred "in trade or commerce". As indicated earlier, the leading authority on the meaning of that expression is Concrete Constructions. In that case, the High Court held that the phrase should be narrowly construed, confining it to "the central conception" of trading and commercial activities of a corporation. Franklins argues that its confidential submission to the ACCC could not conceivably be so described. Coles argues that self-evidently, neither could its supporting letter. 170 Dresna submits that both the confidential submission and the supporting letter were written for the purpose of advancing Franklins' and Coles' commercial and business interests. Franklins wanted to sell the stores, and Coles wanted to buy them. Whether a representation is made "in trade or commerce" will often depend upon the detailed evidence in the case. No a priori conclusion can be reached about this matter. The fact that neither Franklins nor Coles was dealing with a consumer, but rather with a regulator, did not mean that their conduct was not "in trade or commerce". 171 In my opinion, Concrete Constructions dictates that neither the provision of the confidential submission, nor the sending of the supporting letter, can be viewed as conduct "in trade or commerce". It is not sufficient that these documents were written with a view to gain. That does not bring them within "the central conception" of trading and commercial activities. At most, it places them within some proximity of that conception. Accordingly, I will not permit Dresna to rely upon any alleged breach of s 52, arising out of the documents provided to the ACCC, as a basis for the tort of conspiracy by unlawful means.

Is the conspiracy claim "mere surplusage"? 172 Franklins contends that the conspiracy claim that Dresna has pleaded is "mere surplusage". The purpose of the conspiracy, as alleged, is to deprive Dresna of the benefit of the Mentone BSA. That purpose is to be achieved, in part, by breaching both the Mentone BSA and the Litigation Agreement. In pars 84-93 of the PFASC, Dresna alleges that Franklins breached both these agreements, and relies upon these breaches as separate and distinct causes of action. For that reason, Franklins submits, Dresna should not be permitted to maintain its conspiracy claim. 173 Franklins relies primarily upon a passage in the judgment of Campbell J in Fatimi. His Honour said at [195]: "…the line of authority which says that if a combination of persons do an act, which, if done by one of them would amount to a tort, an averment of conspiracy to do that act is "mere surplusage": Sorrell v Smith [1925] AC 700 at 716, Cabasi v Vila (1940) 64 CLR 130 at 142-143, 151; O'Brien v Dawson (1942) 66 CLR 18 at 27. Some cases go further and say that, in consequence, it is not open to a party to plead, as an alternative to a substantive cause of action already pleaded, the tort of conspiracy to commit that substantive wrong: Galland v Mineral Underwriters Ltd [1977] WAR 116 at 119-120; McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 445; Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 13 ACSR 117 at 128." 174 Dresna denies that its conspiracy claim is "mere surplusage". It does not seek relief in relation to a number of the primary contraventions that are said to constitute "unlawful means". These include the "false suggestions", the breach of the Franklins Undertakings, and the contraventions of s 52. They are merely the heads upon which the conspiracy claim is grounded. Moreover, as indicated earlier, Dresna argues that the conspiracy pleading increases the number of defendants, and allows aggravated damages to be claimed. 175 In my opinion, nothing said in Fatimi precludes Dresna from relying upon a claim in conspiracy against Franklins and Coles. Dresna has every reason to plead conspiracy, rather than rely upon the substantive matters that are said to constitute the "unlawful means", given that they are unlikely to be actionable in and of themselves. However, as I have already indicated, some of the "unlawful acts" upon which Dresna proposes to rely are problematic for other reasons.

Defects regarding the loss and damage claim 176 The respondents have put a number of arguments regarding supposed defects in the loss and damage claim. There may be substance in some of their contentions. However, most of the matters raised are capable of being rectified by the provision of further particulars, or by minor cosmetic adjustments to the PFASC. They do not seem to me to justify refusing Dresna leave to amend.

Discretionary grounds for refusal of leave 177 Franklins describes the history of this proceeding as "one of appalling delay, indecision and continual revision by Dresna". It says that Dresna has demonstrated an inability to plead a settled case against it, as well as the other respondents. It points out, in a chronology and summary of the various claims made against it, that in the two years or so since this proceeding was commenced in the Supreme Court, Dresna has attempted on no fewer than nine separate occasions to plead a case. Moreover, in the PFASC, Dresna now proposes to add still more new and substantial causes of action against it, including allegations of conspiracy, and breach of fiduciary duty. 178 The Lessor claims that this is Dresna's eleventh attempt, and the third in this Court, to draw and settle a statement of claim against it. The only cause of action that Dresna now pleads against the Lessor is a conspiracy with Coles, by unlawful means, to deprive it of the benefit of the Mentone BSA. The Lessor argues that Dresna has had ample opportunity to formulate a claim against it, and has been unable to do so. Accordingly, the proceeding against the Lessor should now be dismissed. 179 Coles cannot say that it has been subjected to the same number of attempts to plead a cause of action against it, as have the Lessor and Franklins. Nonetheless, it too submits that leave to file and serve the PFASC ought to be refused. 180 Dresna responds by pointing out that it is misleading to refer to either nine, or eleven, previous attempts to plead a cause of action against Franklins and the Lessor. The early pleadings, in the Supreme Court, were drawn at a time when Dresna believed that Franklins was on its side, and the only real defendant was the Lessor. It was not until certain documents came to light in answer to various notices to produce, and a subpoena, that the role that Coles had played first emerged. That necessitated a complete revision by Dresna of its case, with Franklins having to be joined as a defendant, and Coles added as well. 181 The only explanation that Dresna has proffered for seeking to reformulate its case yet again is that it is now represented by different senior and junior counsel. That is not, of itself, a particularly compelling consideration. I should also say that I am singularly unimpressed by the fact Dresna included a claim under Pt IV of the TPA in December 2002 (which led to the proceeding being transferred to this Court from the Supreme Court) only to abandon that claim within weeks of the case finding its way into my docket. 182 There must come a point at which a Court will conclude that an applicant who has repeatedly failed to plead a valid cause of action simply has no case. I have given anxious consideration to whether that point has been reached in this case. I have concluded, though not without some hesitation, that it has not. 183 In McKellar, I endeavoured to summarise the principles governing summary dismissal at 415-417. As I noted, the authorities make it plain that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of a motion brought for that purpose, to advance a highly implausible claim that will probably fail. Summary dismissal should be ordered only where the claim may properly be described as unarguable, and almost incontestably bad. 184 The statement of claim that I dealt with in McKellar was replete with defects. It was an incomparably worse pleading than the PFASC. However, it was only the second pleading in that case, and not the ninth or eleventh. In McKellar, I granted the applicants leave to replead their case. The question is whether I should do the same in the present case. 185 After careful consideration, I have concluded that Dresna should be given one last chance to plead its case. In the end, my reasons are simple. In JL Holdings, the High Court laid down a series of principles that govern the manner in which courts should approach applications for leave to amend pleadings. Those principles are binding upon me. They seem to me to support the grant of leave in this case. 186 The issue in JL Holdings was whether the defendants should have been permitted to amend their defence. The parties were engaged in a long-running commercial dispute concerning a lease to develop certain land. The estimated length of the trial was four months. There had been a number of interlocutory hearings, and the defence had previously been amended several times. The trial judge refused leave to add a defence that, though arguable, was likely to result in the trial date, which had been fixed for some six months, having to be vacated. Her Honour held that maintaining the trial date was a more pressing consideration than permitting the defendants to present a further defence. 187 On appeal, the Full Court of the Federal Court held, by majority, that the disruption that would be caused to the Court's lists by adjourning the case outweighed the potential injustice in denying the defendants the opportunity to ventilate the issue, which the proposed amendment raised. The Full Court referred to a passage from the judgment of Toohey and Gaudron JJ in Sali v SPC Ltd (1993) 116 ALR 625 at 636 as support for that proposition. 188 In JL Holdings, in a joint judgment, Dawson, Gaudron and McHugh JJ said at 154: "It may be said at once that in the passage which we have cited from Sali v SPC Ltd Toohey and Gaudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough and Rogers v Frog. Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim." 189 There is a particularly helpful exposition of principle in the judgment of Kirby J at 164-172. Without analysing his Honour's comments in detail, it is sufficient to note his endorsement of the following approach to pleading amendments. In summary, his Honour identified the following matters as relevant to the exercise of the discretion to grant leave to amend: · no rigid rules apply to the manner in which a discretion to permit an amendment of pleadings should be exercised; · the power to amend must be exercised for the purpose for which it was conferred, in the case of amendment, by rules of court; · modern techniques of case management, and particularly the advent of active judicial management, have altered the traditional approach taken to such matters; · among considerations which may tend to favour the extension of an indulgence to a party seeking it, are the fact that this is only way in which the true issues and the real merits can be litigated, that the oversight which occurred is adequately explained, that the proposed amendment is of considerable importance to the rights of a party, that any fault is that of the parties' legal representatives, that it was simply the product of unavoidable human error, or possibly the application to the case of fresh legal minds who perceived an important new point, and that costs orders, or the imposition of other conditions could adequately rebalance the competing claims to justice; and · among considerations which may tend to argue against the grant of an indulgence, include many which are the counterparts of the foregoing. In addition, courts now take into account the strain which litigation may place upon those involved, and the natural desire of most litigants to be freed, as quickly as possible, from the anxiety, distraction and disruption which litigation causes. Costs orders are not necessarily an adequate balm to the other party. 190 As Kirby J noted, justice will not necessarily require that a party should have multiple opportunities to plead and present its case. There must be a point at which a court will say, "enough is enough". 191 In concluding that Dresna should be permitted to file the PFASC, save for those paragraphs that I have held to be untenable, I am influenced by the fact that, with certain notable exceptions, the document in its present form is tolerably clear, and contains detailed allegations that are easily understood, and can readily be answered. In addition, this case is not yet so old as to enable it to be described as stale. Dresna can be ordered to pay any costs thrown away by reason of the amendments. There may also be additional costs consequences. 192 It seems to me that having arrived at this conclusion, the best course is simply to order that the parties bring in minutes of orders that give effect to these reasons for judgment. I will hear the parties as to the final form of those orders, and any issues relating to the costs of the application to amend, at the next directions hearing in this matter. I certify that the preceding one hundred and ninety-two (192) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Counsel for the Applicant: Mr R.M. Garratt QC with Mr M.K. Moshinsky

Solicitor for the Applicant: Foster Hart Lawyers

Counsel for the First and Second Respondents: Mr N.J. Young QC with Ms M.M. Gordon

Solicitors for the First and Second Respondents for the Respondent: Arnold Bloch Leibler

Counsel for the Third and Fourth Respondents: Mr M.J. Colbran QC with Mr G. Fitzgerald

Solicitors for the Third and Fourth Respondents: Home Wilkinson Lowry

Counsel for Fifth Respondent: Mr C.M. Scerri QC with Mr M.N. Connock

Solicitors for the Fifth Respondent: Allens Arthur Robinson

Date of Hearing: 4 September 2003

Date of Judgment: 19 December 2003