Issue 1: The Applicants' Amendment Application
27 The current form of the applicants' originating application is the Amended Originating Application filed on 18 June 2013. The current form of Statement of Claim is the Statement of Claim filed on 18 June 2013 with paragraphs 2(v)-(viii), 3, 5(ii), 5(iii), 7, 8, 9 and 10 struck out.
28 The current form of Originating Application and current form of Statement of Claim can be readily seen from Attachments A and B to these Reasons for Judgment.
29 The proposed amendments are indicated in those Attachments in the manner which I have described at [9(a)] above.
30 The causes of action which the applicants currently plead may be summarised as follows.
31 First, the applicants contend that the Commonwealth effected an acquisition of their property other than on just terms in contravention of the constitutional guarantee in s 51(xxxi) of the Constitution. It is their case that the action of the Commonwealth in imposing a national park over their developable land was sufficient to constitute an acquisition of property requiring just terms. In particular, they argue that, but for a decision made by the Commonwealth Minister administering the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) made on 13 March 2009 (the EPBC Act decision), the Council intended and proposed that all of the land in the estate be rezoned as residential land with the consequence that each landowner within the estate had a legitimate expectation that his or her land had significant development potential and use as residential land with a corresponding market value as developable land. The applicants seek declaratory and pecuniary relief as a result of this alleged acquisition other than on just terms.
32 Second, apparently in the alternative, the applicants seek a declaration that the EPBC Act decision to which I have referred at [31] above and the inter-governmental or informal agreement made in or about July 2011 and associated arrangements be declared invalid.
33 Third, the applicants seek damages or compensation against at least the Commonwealth, the State and the Council (and possibly the Foundation) for negligent misrepresentation and misleading and deceptive conduct in breach of the Australian Consumer Law and cognate State legislation.
34 A substantial plank in the proposed amendments now being advanced by the applicants is the allegation which the applicants wish to make to the effect that the Commonwealth, the State, the Council and the Foundation have collaborated and conspired together to acquire the applicants' property other than on just terms. The applicants also wish to allege that the respondents made an informal arrangement whose object and purpose was, by circuitous means, to evade the constitutional guarantee binding the Commonwealth and any person who might participate in the Commonwealth's conduct so as to be an instrument by which property was acquired without appropriate compensation. The applicants rely upon the reasoning of the then Chief Justice of the High Court in PJ Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382 at 401 per Latham CJ.
35 The applicants propose minor amendments to par 1 of the Statement of Claim. Those amendments are not opposed and leave to make them will be granted. In addition, the applicants propose to introduce claims for judicial review of the EPBC Act decision. These claims are pleaded in proposed pars 6A and 6B. These amendments were not seriously opposed. I propose to grant leave to the applicants to include pars 6A and 6B in their Amended Statement of Claim.
36 The first amendments which attracted serious opposition were the proposed amendments to par 2 of the Statement of Claim. In essence, these are the amendments contemplated by subpars (v) to (xii) of par 2.
37 The structure of par 2 is infelicitous. The material facts pleaded are those which are pleaded in the first six lines of par 2. That is, the applicants allege that, by operation of a law of the Commonwealth (viz the EPBC Act) and by the exercise of the executive power of the Commonwealth, the Commonwealth acquired other than on just terms property of the applicants thereby impairing or contravening the constitutional guarantee in s 51(xxxi) of the Constitution. In endeavouring to provide particulars of the relevant acquisition, the applicants refer in particular to the EPBC Act decision and to certain specified consequences of that decision. The applicants allege that, as a result of the EPBC Act decision, the market value of their land fell dramatically. That contention is supported by the expert evidence of a valuer whom the applicants propose to call to give evidence at the hearing.
38 Commencing at subpar (v), the applicants endeavour to add to their contentions concerning the way in which their property was acquired by asserting that the Commonwealth entered into an informal arrangement with the other respondents, the fundamental purpose of which was to require the State to acquire the property of the applicants and the other landowners in the estate other than on just terms and in accordance with an agreement made on 25 February 2012 between the State and the Foundation designed to fund the said acquisition. The applicants contend that, as part of this alleged informal arrangement, the Commonwealth agreed to fund the acquisition through the Caring for Country program and the Council was to rezone land in the estate to 2 Environmental Conservation (called in the proposed pleading "the E2 Zone Arrangement") in order to render the land in the estate permanently undevelopable and unusable for any purpose other than as part of the National Reserve System.
39 The Commonwealth opposed leave to amend par 2 of the Statement of Claim on pleading grounds. The Commonwealth submitted that the proposed pleading was deficient and thus embarrassing in a technical sense. The Commonwealth submitted that the applicants had failed to identify how and when the alleged informal arrangement was made and had failed to specify its essential terms. In addition, the Commonwealth submitted that the applicant had failed to identify the Commonwealth law or executive action which had effected the acquisition about which complaint is made.
40 Counsel who appeared for the State adopted the submissions made on behalf of the Commonwealth and supplemented those submissions. He submitted that the applicants ought not to be permitted to plead and maintain a case based upon the alleged informal arrangement in circumstances where, as a fundamental integer in another part of their case, they assert that the acquisition of which they complain was effected by the EPBC Act decision and by that decision alone. In addition, he added that, if the applicants wished to plead and to rely upon some alleged informal arrangement, it was incumbent upon them to articulate precisely what it was that this arrangement added to the relevant formal agreements entered into between the State and the Commonwealth (including, in particular, the inter-governmental agreement dated 12 June 2012).
41 The particulars to par 2 make clear (and Counsel for the applicants confirmed in argument) that the applicants intend to endeavour to prove the alleged informal arrangement by the tender of documents coming from the possession of the respondents. They do not intend to call a witness to prove the alleged arrangement. The main documents to be relied upon by the applicants are referred to in the particulars provided in par 2 of the Statement of Claim. The essential terms of the alleged informal agreement can be discerned from the particulars provided. The only criticism of par 2 which has substance, it seems to me, is that the applicants have failed to specify with any particularity the date when the alleged informal arrangement was made. However, the applicants' case is that the arrangement was a developing one which commenced in 2009 and came to fruition in 2012.
42 It may be that, after all the evidence is in and all submissions have been made, the applicants fail to establish the existence and/or terms of the alleged informal arrangement. But that is not the present question. The question for me at the moment is whether there is sufficient in par 2 of the proposed Amended Statement of Claim to justify allowing the amendment. I think that there is and that the respondents will be able to respond to the allegations without further ado. I pause to note that each of the respondents which has filed a Defence had no difficulty in denying the existence of such an informal arrangement when it was pleaded in the applicants' original Statement of Claim.
43 For these reasons, I propose to allow the amendments propounded in respect of par 2 of the Statement of Claim.
44 For similar reasons, I propose to allow the amendments to pars 3 and 4 of the Statement of Claim.
45 By the amendments sought to par 6 of the Statement of Claim, the applicants seek to introduce into their pleading a basis for declaring the EPBC Act decision, the E2 Zone Arrangement and the laws authorising the same invalid by reason of the fact that those Acts and statutory provisions effected an acquisition of property other than on just terms in breach of the constitutional guarantee and were otherwise contrary to law. Although the thinking made manifest in par 6 is a little garbled, it seems to me that the applicants are endeavouring to support their claims for declarations that the relevant decisions said to have effected an acquisition were invalid on the basis of contentions embodied in the particulars to par 6. Inelegant though the language may be, I think that there is sufficient in par 6 to justify leave to amend and that the pleaded allegations make sufficiently clear the matters to which the respondents must respond.
46 Paragraphs 7, 7A, 8, 8A and 8B seek to introduce into the proceeding a claim for damages for civil conspiracy.
47 A claim of this nature is a very serious one, should not be lightly made and must be specifically pleaded and particularised (Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [59] per Hely J).
48 In Newkirk, at [60]-[64], Hely J said:
60 Conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. Historically, there are two kinds of conspiracy, the elements of which are distinct:
(1) an 'unlawful means' conspiracy in which the participants 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.
See Bullen & Leake & Jacob's Precedents of Pleadings, Vol 2, 15th edn, Sweet & Maxwell, London, 2004, at [50-01]; McKellar v Container Terminal Management Services Ltd (supra) at [135] - [154].
61 Bullen & Leake identifies the necessary elements in an action in conspiracy at [50-01.1]:
'The claimant must plead and prove the following necessary elements:
(i) a combination or agreement between two or more individuals (required for both types of conspiracy);
(ii) an intent to injure (required for both types of conspiracy but must be shown as the sole or predominant purpose for type (2) above);
(iii) pursuant to which combination or agreement and with that intention certain acts were carried out;
(iv) resulting loss and damage to the claimant.'
62 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 express 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 circumstance, and share the same object, for it properly to be said that they are acting in concert.
63 'Unlawful means' includes crimes and tort and breaches of statutory provisions: Trindade & Cane, The Law of Torts in Australia, 3rd edn, Oxford University Press, Melbourne, 1999 at p 230. A person is using unlawful means if they are doing an act which they are not at liberty to commit: Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169. 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 the substantive wrong, nor can there be a common law conspiracy to contravene the TPA outside the form of conspiracy expressly provided for in s 75B(1)(d) of the TPA: McKellar (supra) at [195] and [197]. But the first respondent has not taken any objection to the ASC on this account, hence these matters can be put to one side.
64 The tort requires an intention to injure. As Kiefel and Jacobson JJ observed in Dresna Pty Ltd v Misu Nominees Pty Ltd (supra, at [7]) 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. In order to prove a conspiracy a claimant must show that the wrongful act complained of was done with a design of injuring the claimant and that it did so. According to their Honours, a conspiracy could be directed not only at a particular individual, but also at a class, in the sense of all members of the class. Their Honours went on to say (at [123]) that the test for an action in conspiracy is: 'what was the object of those combining when they acted as they did'. They must have acted in order that, not with the result that, the claimant should suffer damage.
49 In proposed par 7, the applicants allege that the respondents wrongfully injured the applicants by a combination or agreement made with intent to injure the applicants by unlawful means. The unlawful means are said to be effecting an acquisition of the applicants' property in disregard of the constitutional guarantee in s 51(xxxi) of the Constitution and also doing so as a result of misrepresentations made by the Foundation to the applicants and others on behalf of the Commonwealth, the State and the Council.
50 In par 8A, the applicants seek to allege that the respondents wrongfully, and with the predominant purpose of injuring the applicants, entered into a civil conspiracy. This seems to be intended as an allegation that the respondents combined to perform acts which, although not themselves unlawful, were done with the sole or predominant purpose of injuring the applicants.
51 The particulars of intention to injure provided as part of par 8A go no further than an allegation that certain steps were taken by each of the respondents with knowledge that those steps would render the applicants' land undevelopable.
52 All of the respondents opposed leave being granted to the applicants to plead the tort of conspiracy. They complained that the particulars of the alleged combination or agreement are not sufficient. In addition, they submitted that 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 same substantive wrong. In addition, they argued that there cannot be a common law conspiracy to contravene the Australian Consumer Law and cognate State legislation which provide for statutory relief for misleading and deceptive conduct outside the form of conspiracy expressly provided for in the statutory provisions contained within those enactments which expressly provide for accessorial liability (see McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 445-446 [195] and [197] per Weinberg J; and Newkirk at [63]).
53 Here, insofar as the allegation of conspiracy sought to be made in par 7 is concerned, reliance is placed upon substantive wrongs pleaded elsewhere in the Statement of Claim (impairment of the constitutional guarantee and breach of the Australian Consumer Law). Counsel for the applicants submitted that a pleading based upon impairment of the constitutional guarantee embodied in s 51(xxxi) of the Constitution was not unlawful means within the relevant principles. I do not agree (see Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169).
54 I think that the submissions advanced by the respondents in respect of pars 7 and 8 of the proposed Amended Statement of Claim are sound and are fatal to the applicants' application for leave to amend in order to plead those paragraphs. I refuse leave to amend in the terms of pars 7 and 8.
55 As far as the alleged conspiracy in proposed par 8A is concerned, I think that the pleading is deficient. The allegations as to the making of the alleged combination or agreement are somewhat vague (as I have already noted when dealing with par 2 of the proposed Amended Statement of Claim above) and lack precision. Although, of itself, this may not be fatal, the lack of specificity in the identification of the combination or agreement has contributed to a more fundamental deficiency. The applicants must plead and prove that the alleged combination or agreement and overt acts carried out in giving effect to that agreement were done with a design of injuring the applicants. As Kiefel and Jacobson JJ observed in Dresna Pty Ltd, 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. So, here, an agreement to do certain acts, even with knowledge of the potential consequences of those acts, is not sufficient to constitute a conspiracy. The agreement must be made with a design of injuring the target of the conspiracy. In my view, in par 8A the applicants do not plead such a design. The pleading is deficient for that reason. I will therefore refuse leave to the applicants to amend their Statement of Claim to include pars 8A and 8B.
56 In par 9 of the proposed Amended Statement of Claim, the applicants seek to propound a case for compensation by reason of alleged unjust enrichment. This case is pleaded only against the State.
57 Counsel for the State objected to leave being granted to the applicants to plead par 9. He submitted that, in order to support pecuniary relief based upon unjust enrichment, it was not sufficient for the applicants to plead and to rely upon a mistake as the basis upon which they transferred or agreed to transfer their landholdings within the estate. He submitted that the applicants were required both to plead and to prove unconscionability in the sense of an unconscientious taking advantage by the State of the alleged mistake.
58 I think that there is sufficient in subpar (iii) of the particulars contained in proposed par 9 to support the unjust enrichment case. I say nothing, of course, about the merits of that case.
59 Paragraph 10 is designed to support the misrepresentation case left standing in pars 11 and 12 of the existing Statement of Claim.
60 By par 10, the applicants allege that the Commonwealth and the State, by their servant or agent, the Foundation, made representations in letters sent by the Foundation to landowners in the estate which were misleading or deceptive or which were made negligently. These letters are alleged to have been sent in 2012 and 2013. The loss alleged to have been suffered by the applicants is pleaded in proposed par 8.
61 Principal among the heads of loss is the loss in value of the land. The applicants have informed the Court that they will prove that loss by calling an expert valuer who will testify that the loss was suffered in March 2009 when the Minister made the EPBC Act decision.
62 During argument, I taxed Counsel for the applicants with the proposition that such a loss could not possibly have been caused by mail outs sent in 2012 and 2013. Counsel did not, with great respect to him, provide a satisfactory answer to this proposition. He did, however, say that the applicants were also claiming wasted expenditure but was unable to specify what that might be.
63 I do not think that I should allow the misrepresentation case to go forward. It is internally inconsistent, as pleaded, and has no real prospects of succeeding. The only relief sought in the proposed pleading based upon the misrepresentation case is financial compensation. As I have said, the loss which the applicants claim in the proceeding, being the diminution in value of their property, was suffered long before any of the alleged representations are said to have been made.
64 Accordingly, I will not allow the amendment to par 10. For this reason, I will also strike out pars 11, 12, 13 and 14 of the existing Statement of Claim since all of those paragraphs are dependent upon par 10.
65 For all of the above reasons, I will allow the amendments propounded in pars 1, 2, 3, 4, 5, 6, 6A and 6B of Attachment B. I refuse leave to amend in respect of proposed pars 7, 8, 8A, 8B, 10, 11, 13 and 14. I will strike out pars 11, 12, 13 and 14 of the current Statement of Claim.
66 Consistent with those rulings, I will allow the amendments to pars 3A and 3B of the Amended Originating Application. I refuse the amendments embodied in par 7A. That amendment could only be brought forward if I were to allow the conspiracy pleadings to stand. I have not done so. Accordingly, that amendment should be refused. I will also strike out pars 5 and 7 of the Amended Originating Application as those claims for relief are no longer supported by any cause of action pleaded in the Statement of Claim.
67 As far as the common questions are concerned, I will consider the amendments sought to those when dealing with Issue 5 below.
68 At the very end of the hearing on 1 October 2013, Counsel for the applicants submitted that the Court should give the applicants a further opportunity to plead their case in the event that I disallowed any of the amendments sought by them on 1 October 2013 or struck out any paragraphs of their existing pleadings.
69 Given the proximity of the commencement of the hearing and the ample opportunities already afforded to the applicants to plead their case, I am not prepared to grant leave to re-plead. The time has come for the applicants to run their case. The Court will not allow the hearing to be delayed by further applications for leave to amend their pleadings.