International Entertainment (Aust) Pty Ltd & Anor v Churchill& Ors [2003] QSC 247

PROCEDURE - Production and Inspection-Legal Professional Privilege - For purposes of or in contemplation of litigation - whether an affidavit sworn pursuant to r213 is valid - where affidavit is sworn by a person without knowledge of facts giving rise to the claim - where documents are not described in a manner that enable an order for production to be made - whether the Plaintiffs were in pursuit of illegal or fraudulent purposes - where Plaintiffs retained and communicated with private investigators -whether there is prime facie evidence that the allegation has some foundation in fact.

EQUITY - General Principles and Maxims of Equity - whether particulars had an immediate and necessary relation to the equity sued for - where Defendant's allege Plaintiff's "hands unclean" - whether application for striking-out is an abuse of process.

Trade Practices Act 1974 (Cth), s 52, s 53(c) and s 53(d)

Uniform Civil Procedure Rules, r 213, 214, 214(1)(a)

Armstrong v Sheppard & Short (1959) 2 QB 384

Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500

Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52

Dow Securities Pty Ltd v Manufacturing Investments Limited (1981) 5 ACLR 501

FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552

Meyers v Casey [1913] HCA 50; (1913) 17 CLR 90

O'Rourke v Darbishire [1920] AC 581

Williams v Spautz (1991-1992) 171 CLR 509

[1] The plaintiffs carry on the business of telemarketing. At least a large part of their business involves the raising of funds for charitable or service organisations such as Lions, Rotary and Police & Citizens Youth Clubs. The plaintiffs organise events such as magic shows or film festivals, to be attended by disadvantaged families and underprivileged children. Potential donors are telephoned and asked to contribute by "sponsoring" one or more children to attend such an event. Money collected from sponsors is divided between the plaintiffs, the relevant charity or service organisation, and persons described by the plaintiffs as "promotional directors", with whom the plaintiffs effectively subcontract the work of contacting potential sponsors. Upon the plaintiffs' case, they have been organising and promoting magic shows in this way in Australia since 1988, and film festivals since 1992. The first and second defendants, who are husband and wife, commenced working for the second plaintiff as telemarketers in New Zealand in about 1994. It is alleged that in 1996 they moved to Australia to conduct on behalf of the plaintiffs certain events, and that in about that year the plaintiffs engaged the first defendant as a promotional director.

[2] The plaintiffs allege that they entered into a written Promotional Agreement with the first defendant in January 1998, the validity of which is denied by the defendants. It is alleged that the first defendant conducted a number of campaigns for sponsorship of events from 1996 until March 2002, when the first defendant resigned. The third defendant is a company controlled by the first and second defendants and was allegedly engaged at various times as a promotional director for the plaintiffs. The plaintiffs say that since March 2002 the first defendant and/or the third defendant have begun telemarketing operations upon their own account in competition with the plaintiffs, and have wrongfully made use of information said to be confidential to the plaintiffs. Broadly speaking, the confidential information is said to comprise the identity of previous and/or potential sponsors and of the "contact person" within each "donor organisation", together with the history of donations received from that party. The alleged misuse of confidential information is said to entitle the plaintiffs to equitable relief against each defendant and, in particular, to injunctions and "damages (and in addition exemplary damages) for breaches of equitable obligations of confidence". It is also said to constitute a breach of the alleged Promotion Agreement.

[3] The plaintiffs also claim that the third defendant has passed itself off as the plaintiffs or has having some association with or sponsorship or approval of the plaintiffs, or at least of a certain charitable organisation which is a client of the plaintiffs. That conduct is alleged to have contravened s 52, s 53(c) and s 53(d) of the Trade Practices Act 1974 (Cth), and the first and second defendants are said to have been parties to those contraventions.

[4] The case has been placed upon the Supervised Cases List. It has already been the subject of several interlocutory hearings, including a hearing that occupied Holmes J for most of 5 September 2002, which resulted in some orders for interlocutory injunctions against the defendants.

[5] There are two applications made by the defendants and one by the plaintiffs. The defendants seek further particulars of the passing off/misrepresentation case. They also seek orders for further disclosure. The plaintiffs have applied to strike out some parts of the Defence and its Particulars.

[6] Paragraph 29.6 of the Further Amended Statement of Claim alleges that telemarketers employed by the third defendant phoned persons who have previously sponsored a certain event and represented that a similar event would not be conducted in 2002 but that another service organisation "had taken over and were running a film festival instead". In paragraph 29A.4, it is alleged that telemarketers employed by the third defendant have misrepresented to sponsors that they were from an organisation which had previously received donations from them (the pleading going on to allege that the donations had been made through the plaintiffs). On 19 June 2003, the defendants sought particulars of those paragraphs. Some particulars were provided on 23 June. On 7 July the defendants' solicitors wrote to assert that those particulars were insufficient in that they failed to provide:

"(i) The name of the telemarketer alleged to have made each alleged representation; and/or

(ii) Sufficient details of the dates on which it is alleged each respective representation was made."

The plaintiffs say that they are unable to provide those particulars, at least at present.

[7] The defendants' interest in the information sought by the particulars is heightened by some circumstances which are relevant also to the other applications the subject of this judgment. Those circumstances involve the plaintiffs' retention of private investigators, and in particular a person who apparently sought and obtained employment with the third defendant under the false name of "Michelle Anderson". The defendants assert that this person, whom I shall call Ms Anderson, purportedly on the defendants' behalf, has engaged in conduct involving misrepresentations as complained of by the plaintiffs, but that she did so contrary to the instructions of the defendants, and for the purpose of manufacturing evidence for the plaintiffs. Quite apart from those circumstances, however, the particulars which are now sought should be provided, if they can be provided. The plaintiffs say that they cannot provide them, which does not seem at all unlikely. Putting on one side the possibility that Ms Anderson or some other operative has made these alleged misrepresentations, the plaintiffs' case would rely upon information provided by sponsors, who are unlikely to have recorded the particular date of the call from the telemarketer, let alone the name (if any) given by that person during the call. Of course, the failure to provide these particulars has a potentially limiting effect upon the plaintiffs' case at trial. It is in the plaintiffs' interests to provide the particulars if possible. In my view, however, the case has been pleaded with sufficient particularity to define the relevant issues and to prevent surprise at the trial. The particular events or "campaigns" the subject of these allegations have been specified. In relation to paragraph 29A.4, the particulars which have been provided specify a large number of individual calls identifying the particular sponsor telephoned on each occasion relied upon, together with the charity or service organisation on whose behalf of the defendants' telemarketer was calling.

[8] I conclude that the application for further particulars of paragraphs 29.6 and 29A.4 should be dismissed.

[9] The first category of documents in question relate to certain software used by the plaintiffs. The software is called "Campaign Manager". Paragraphs 17.1 to 17.8 of the statement of claim, as at 16 May 2003, pleaded a case in relation to this software which had two parts. The first was an allegation of misuse of confidential information, upon the basis that the software "contains" confidential information, which the first defendant was said to have "unlawfully divulged to" the third defendant. Secondly, by the then paragraphs 17.6 and 17.7, it was alleged that the first defendant had wrongfully failed to return to the plaintiffs all copies, "both electronic and hard form" and had provided copies to the third defendant. On 16 May, the defendants' solicitors wrote seeking disclosure of documents relating to "the cost of developing the software and of its capabilities". By the Further Amended Statement of Claim filed 17 June 2003, paragraphs 17.6 and 17.7 were deleted. The claim in relation to "Campaign Manager" is one for misuse of allegedly confidential information. On the plaintiffs' present pleading, I am not persuaded that documents relating to the cost of developing this software and its "capabilities" are directly relevant to any issue. There is certainly an issue as to whether the software contains confidential information, but the defendants have not explained how documents of this kind relate to that issue. The alleged confidential information is itself particularised in paragraphs 17.4, and the defendants seem to make no complaint as to those particulars. The defendants have made an alternative submission, which is to the effect that these documents in some way relate to the defendants' proposed case that the proceedings are "vexatious, oppressive and an abuse of process" and "that the injunctive/equitable relief sought would be harsh and oppressive". This case is considered below in relation to the plaintiffs' application. In relation to "Campaign Manager" the argument seems to proceed as follows: the plaintiffs have made and now withdrawn an allegation, thereby indicating that they had no belief in that case but were prepared to plead it nevertheless until pressed with an application for disclosure. From there it is argued that documents which would have been relevant to the abandoned case go to demonstrate its demerit, and the likelihood that the plaintiffs had no belief in it. However, it still does not appear to me that documents going to "the cost of developing the software and its capabilities" would be directly relevant to that case either. I do not see within the defence, as pleaded in response to the now deleted allegations, something to the effect that the software, or more particularly the copies of it allegedly in the defendants' possession, was or were valueless because of the cost of development or lack of "capabilities". In summary, the documents sought relating to "Campaign Manager" are not shown to be directly relevant to any issue and at least this part of the disclosure application should be dismissed.

[10] The next category of relevant documents relates to the plaintiffs' engagement of private investigators. The documents are said to be relevant to a number of issues, including but not limited to those the subject of the plaintiffs' strike-out application. The plaintiffs appear to admit the relevance of the documents, because they have disclosed them in Schedule 1 Part 3 of their List dated 5 June 2003. At the same time the plaintiffs claimed legal professional privilege over them, describing them as "all documents produced by and in relation to any private enquiry agent retained by the plaintiffs for the purposes of gathering evidence for the dominant purpose of this litigation".

[11] The defendants challenged that claim of privilege, thereby requiring the plaintiffs to file and serve an affidavit stating the claim, being an affidavit made by an individual who knows the facts giving rise to the claim: r 213. The plaintiffs rely upon an affidavit of Simone Watson of their solicitors, sworn on 15 July 2003. Upon information given to her by a director of the plaintiffs, and also by a representative of the firm of the investigators, Ms Watson believes that the documents are privileged. Her affidavit also makes it clear that neither she nor anyone else from her firm was involved in giving any instructions to the private investigators. The defendants submit that this affidavit does not comply with r 213, because Ms Watson is not a person who knows the facts giving rise to the claim. In my view that submission should be accepted. An affidavit claiming privilege might in many cases be sworn by the party's solicitor, because the solicitor would be able to give original evidence of the facts justifying the claim. But Ms Watson makes it clear that this is not such a case.

[12] The defendants also submit that the documents have not been specifically listed, as they should have been pursuant to r 214(1)(a). Again, this point seems to be well taken. Documents must be described in a way that enables an order for production to be made and enforced.

[13] Notwithstanding these defaults, the plaintiffs should not be denied a proper claim for privilege if the defaults can be remedied with no substantial injustice to the defendants. But the principal issue in the argument of this application concerned whether the privilege could be claimed, having regard to the defendants' allegations that in retaining and communicating with their private investigators, the plaintiffs were in pursuit of illegal or fraudulent purposes, including the fabrication of evidence for use in these proceedings, the pursuit of these proceedings as an abuse of process and the collection of evidence by means which are illegal or fraudulent. Clearly, no privilege can subsist in communications made in furtherance of an illegal or fraudulent purpose: Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52; Re Compass Airlines Pty Ltd (1992) 35 FCR 447. The party seeking to displace the privilege must demonstrate more than a mere allegation of "fraud or crime or an illegal purpose" and there should be some prima facie evidence that the allegation has some foundation in fact: see Cross on Evidence at [25285] where the test is alternatively expressed as being whether there are reasonable grounds for believing that the relevant communication was made for the illegal or improper purpose.[1] But it is not necessary to establish the alleged fraud or illegality for "the policy considerations underlying the privilege must be weighed with the gravity of the charge of fraud made".[2] In Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500, Gibbs CJ (with whom Mason and Brennan JJ relevantly agreed) quoted with approval the following statement from O'Rourke v Darbishire [1920] AC 581 at 604:

"The statement must be made in clear and definite terms, and there must be some prima facie evidence that it has some foundation in fact. It is with reference to cases of this kind that it can be correctly said that the Court has a discretion as to ordering inspection of documents. It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud. The Court will exercise its discretion, not merely as to the terms on which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications."

Accordingly, something less than what the criminal law requires of a prima facie case of some illegality may be sufficient, in all the circumstances, to displace the privilege. In the present case, the claim is attacked in reliance upon the evidence of what at least one investigator, Ms Anderson, did in her work for the plaintiffs. Of course, that could be consistent with innocence on the part of the plaintiffs, because if the alleged misconduct did occur it might have resulted not from any instructions given to the investigator, but instead from her own initiative. In the present context, evidence which is on information and belief from Ms Anderson is not particularly compelling, especially as that evidence would be at least very difficult to test absent an affidavit by her. What presently appears more serious is the plaintiffs' reliance, in their particulars paragraph 29A.4 of the statement of claim, upon representations allegedly made on behalf of the defendants, but apparently made by Ms Anderson as their purported representative. Those particulars relate to two alleged conversations, amongst a much greater number relied upon to support the relevant allegation, but the defendants assert that there may be others of the same kind within the particulars. There may well be enough in the defendants' challenge to the privilege claim to permit cross examination upon an affidavit which properly claims the privilege.[3] The defendants are disadvantaged at present because they do not have an affidavit from a person with knowledge of the facts upon which privilege is claimed, so as to be able to test that evidence by cross examination. In my view it is inappropriate to assess now whether a privilege claim, if and when properly made, is displaced by the present evidence. The evidence from cross examination of the plaintiffs' deponent, if ultimately allowed, would be part of the evidence to be considered with the present evidence, in deciding the validity of the privilege claim. Until the claim is properly made, the court should not assess whether it is valid, unless it is already clear that any claim for privilege must fail. The present case is not so clear. The result is that as there is at least a substantial prospect of a valid claim for privilege, the plaintiffs should have any necessary extension of time to comply with r 213 and r 214. That would leave open the defendants' right to challenge the claim, and to thereby obtain an order for production.

[14] In relation to the documents the subject of that privilege claim, I will order that within seven days, the plaintiffs, in compliance with r 214, shall cause to be delivered a list of documents in relation to which privilege from disclosure is claimed, and the plaintiffs will also cause to be filed and served an affidavit stating the plaintiffs' claim for privilege in relation to those documents, and sworn by a person knowing the facts giving rise to the claim. I extend the time for the filing and service on behalf of the plaintiffs of an affidavit in compliance with r 213 until seven days from this order.

[15] The other documents sought by the disclosure application were the subject of indications from the plaintiffs on the day prior to the hearing that the documents would be disclosed. I do not think it is necessary to make orders as to them. Having regard to the result in relation to the allegedly privileged documents, the defendants' application for disclosure should otherwise be adjourned to a date to be fixed, on at least two clear day's notice.

[16] As filed on 11 June 2003, this was an application to strike out paragraph 39 of the Defence and its particulars. Paragraph 39 pleaded simply that the plaintiffs' hands were unclean. Presumably this was directed to those parts of the plaintiffs' claim which sought equitable relief. Upon its face, the pleading indicated neither the relevant conduct of the plaintiffs nor the particular relief sought by them for which that conduct would have the required relevance. The then particulars of paragraph 39 began with the statement "The defendants refer to paragraphs 51 and 52 of their outline of submission (sic) of 5 September 2002". They continued in terms of an allegation that the plaintiffs had authorised Ms Anderson "to seek to obtain from the third defendant evidence for use in these proceedings by fraudulent and illegal means ...". The reader was therefore at first directed to paragraphs 51 and 52 of that outline. Paragraph 51 alleges that the plaintiffs "authorised and/or acquiesced in the obtaining of evidence by illegal means", and the conduct of certain private investigators is then alleged. Paragraph 52 alleges that the plaintiffs "have relied on seemingly false evidence, which is said to have "misled (the defendants) and the public". As a matter of form, particulars should not be provided simply by reference to another document in this way. In addition, the facts relied upon ought to be pleaded in the Defence so that they can be the subject of a pleading in reply. But there is also a problem with at least some of these matters as particulars of an unclean hands defence, in that they do not appear to have "an immediate and necessary relation to the equity sued for": Dow Securities Pty Ltd v Manufacturing Investments Limited (1981) 5 ACLR 501, 508-509. On 7 July, amended particulars were filed which added an extensive list of allegations as particulars of this Defence and, alternatively, as particulars of other allegations then added to the Defence. With one exception, they are attacked by the plaintiffs principally on the basis that they lack the requisite nexus with the plaintiffs' claims.

[17] In Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th ed 2002) at para [3-130] the importance of this nexus is emphasised by the warning that unless courts insist upon it, "almost no equitable relief could ever be granted as defendants excavate the remote misdeeds of plaintiffs". The required nexus was explained by Isaacs J in Meyers v Casey [1913] HCA 50; (1913) 17 CLR 90 at 124 as follows:

"It is altogether different from the cases where the right relied on, and which the Court of equity is asked to protect or assist, is itself to some extent brought into existence or induced by some illegal or unconscionable conduct of the plaintiff, so that protection for what he claims involves protection for his own wrong. No Court of equity would aid a man to derive advantage from his own wrong, and this is really the meaning of the maxim."

[18] The matter was extensively discussed by Young J in FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 552, who said at p 561:

"I have gone through such a lengthy history and examination of the rule because, it seems to me, with great respect, that the submissions of the defendants are too shallow, but yet have the temptation to induce a judge (who has, after all, some characteristics common with jurors) by appeal to the emotions, to think that these matters should be left to the trial to be ventilated. However, the more one examines the rule in its application in the cases, the more one can see that it is only if the right being sought to be vindicated by the plaintiff in a court of equity, is one which if protected, would mean the plaintiff was taking advantage of his own wrong, that the court will either debar him from relief or perhaps say he is not a proper plaintiff in a representative suit."

However the clean hands defence has been said to deny equitable relief outside the category of cases described by Young J. For example in Spry _Equitable Remedies (_6th ed 2001) (at pp 245-246) it is said that a plaintiff will be denied the remedy of specific performance where the plaintiff is shown to have materially misled the court or to have abused its process, or to have attempted to do so, and (at p 414), that an applicant who culpably misleads the court may be refused equitable relief on this ground, for which the author cites Armstrong v Sheppard & Short (1959) 2 QB 384. At least upon this application, the plaintiffs accept that circumstances of those kinds might be relevant to the exercise of the trial judge's discretion in relation to equitable relief, but it is submitted that the conduct complained of by the defendants is still not of this kind.

[19] No objection is taken to paragraph (b) of paragraph 33 of the particulars, which is one of the paragraphs added on 7 July. The matters there particularised would plainly appear to have the required nexus with the relief sought. It is there alleged that the information which the plaintiffs seek to protect was information improperly obtained on their behalf, by misrepresentation, breaches of duty owed to persons from whom the information was obtained and other improper means. The plaintiffs' attack was upon the balance of the particulars as unsupportive of the clean hands plea or of alternative pleas in the recently added paragraphs 40.A and 40.B in which the defendants plead:

"40.A Further or alternatively, the equitable and injunctive relief sought would, if granted, be harsh and oppressive to the defendants.

40.B Further or alternatively the proceedings are vexatious and oppressive, and an abuse of the process of this Honourable Court."

[20] I have discussed paragraphs (a) and (b) of those particulars. Paragraph (a) seems to contain nothing to which is not within one or more of paragraphs (c) through (f). Paragraph 33(c) alleges that the plaintiffs "aided and abetted the generation of false evidence for use in relation to these proceedings", and some facts are then given as particulars. If that allegation was proved at the trial, then it is a matter potentially relevant to the grant of equitable relief because, as is conceded, a plaintiff might be denied equitable relief if it has attempted to mislead the court or otherwise abuse its process. Of course, assuming for the moment that the plaintiff has been involved in collecting such evidence, it remains to be seen whether it will attempt to adduce that evidence. If the plaintiffs' conduct goes no further than the original gathering of the evidence, it is relatively unlikely that the conduct would be relevant. But if it should occur that that evidence has been fabricated, by steps in which the plaintiffs were knowingly involved, and yet that evidence was adduced at the trial, the conduct would be potentially relevant, and it is surely preferable for this potential defence to be specifically raised by the defendants in their pleading. In my view, the matters alleged in paragraph 33(c) of the particulars are not so irrelevant or otherwise likely to prejudice or delay the fair trial of the proceeding, that they should be struck out.

[21] Paragraph 33(d) alleges that the plaintiffs have knowingly pleaded false allegations, part of which is particularised as "the matters referred to in para 52" of that same outline of submissions on 5 September 2002. Paragraph 52 of those submissions refers to a number of matters, the relevance of some of which is not at all apparent in this context. This reference to paragraph 52 has the tendency to prejudice a fair trial. Paragraph 33(d)(ii) refers to the plaintiffs' allegations of a passing off and breaches of the Trade Practices Act insofar as they depend upon fabricated evidence as referred to para 33(c). For the same reasons that para 33(c) can be justified, I think that para 33(d)(ii) is potentially relevant, but it should not be allowed to remain in its present form: instead the defendants should identify the relevant allegations by reference to certain paragraphs or sub paragraphs of the statement of claim and/or its particulars. Similarly, paragraph 33(d)(iii) and (iv) should more precisely identify the relevant paragraph or paragraphs of the plaintiffs' pleadings and particulars. Paragraph 33(d) in its present terms should be struck out.

[22] To discuss paragraph 33(e) it is necessary to set it out in full:

"The proceedings are an abuse of process, in that the Plaintiffs, in commencing and/or continuing to prosecute these proceedings, are actuated by the purpose of eliminating the Defendants as trade rivals and/or of breaking up the marriage of the First and Second Defendants and in that allegations are made or continued to be made which are "fishing" or which have no reasonable prospects of success. The best particulars the Defendants are able to give pending disclosure and interrogatories are: all of the particulars of unclean hands contained herein, including the said affidavits and Court documents."

This paragraph covers a great deal of ground, but its broad effect is that the entire proceedings are an abuse of process. It is alleged that they are brought for an improper purpose or purposes. One is the purpose of eliminating the defendants as trade rivals. Another is the purpose of breaking up the marriage of the first and second defendants. Each of those matters seems to be inspired by comments attributed to Ms Anderson. It is necessary to keep in mind the fact that these are matters said to disentitle the plaintiffs to equitable relief, should they otherwise establish their case. They are not allegations raised for the purposes of staying or striking out the proceedings. They are relevant allegations only in the event that the plaintiffs' prosecute the proceedings to a judgment and, accordingly, they assume that the plaintiffs intend to do so to the end of obtaining the relief, including the equitable relief, which is claimed. Upon that premise, nevertheless, it is alleged that the proceedings are an abuse of process because the plaintiffs have the purpose of putting paid to the defendants' business and/or their marriage. The alleged purposes of the plaintiffs are to bring the proceedings to a successful conclusion so as to take advantage of suggested consequences of that outcome.

[23] Put another way, the plaintiffs' immediate purpose is to obtain the relief claimed, to the ultimate end or ends which are alleged in these particulars. Is it then an abuse of process to pursue a judgment, to which the plaintiffs are otherwise entitled, if the plaintiffs intend to obtain a further and consequential advantage from that judgment? In my view, those ultimate purposes would not make these proceedings an abuse of process, and nor would they provide some other basis for denying the plaintiffs whatever equitable protection which they should otherwise have. The present allegations seem to me to be outside the boundaries of abuse of process for reasons explained in Williams v Spautz (1991-1992) 171 CLR 509 by Mason CJ, Dawson, Toohey and McHugh JJ at pp 526-7:

"Thus, to take an example mentioned in argument, an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent's conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor's favour.

It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed (58) or some collateral advantage beyond what the law offers (59)."

It is then said that allegations are made which are "fishing" or which have no reasonable prospect of success. That in itself would not seem to make the proceedings an abuse of process. I am mindful of the need to consider that allegation in the context of other circumstances alleged by the defendants, but the allegation of abuse of process within paragraph 33(e) is apparently self contained. A further problem is that if the reader wishes to identify the defendants' case by reference to which particular allegations are "fishing" and which have no reasonable prospects of success, the reader is left only with the reference to "all of the particulars of unclean hands contained herein, including the said affidavits and court documents". In summary paragraph 33(e) should be struck out.

[24] There then follows a very extensive series of allegations occupying nearly two pages within the particulars, as going to the allegation at the commencement of paragraph 33(f) that "the proceedings are vexatious and oppressive". The first thing about that allegation is that it is apparently intended to be distinct from an allegation that the proceedings are an abuse of process. It seems to me however that the relevance of any of these matters, if established, would be in support of an abuse of process case: see Walton v Gardiner (1992-1993) 177 CLR 378 at pp 392-393. Indeed, what follows in some of the sub paragraphs of paragraph 33(f) seems a repetition of what is alleged in paragraph 33(e).

[25] The main problem with paragraph 33(f) is its consistent vagueness. It begins to particularise the assertion that the proceedings are vexatious and oppressive with the unhelpful statement that the particulars are "all of the particulars herein, including the aforesaid affidavits and Court documents". It then continues by reference to "the disproportionately large financial, legal and other resources the Plaintiffs are putting into this case as demonstrated by: the length and prolixity of the Plaintiffs' pleadings; the length and scope of the application for interlocutory injunctions and the numerous supporting affidavits filed in support ...". Should this trial have to involve some factual enquiry into whether the resources used by the plaintiffs were disproportionate, and if so, what is meant by "other resources"? What is the basis for the assertion that the plaintiffs' pleadings are prolix, especially absent any application to strike them out? What was it about the "length" of the application for interlocutory injunctions" (as distinct from its merit) which is relied upon by the defendants?

[26] Next there is paragraph 33(f)(iii), the effect of which could not be easily summarised. But it also has a tendency to prejudice or delay a fair trial by (again) alleging the making of allegations having "no reasonable prospect of success" but without an identification of each and every relevant allegation.

[27] Sub paragraph (iv) asserts that the plaintiffs have aimed to protect too much information, because "the greater part" of that relied upon is not confidential and that which is said to be confidential has "now become useless or (at least) of substantially reduced utility". The fact that information, once valuable and confidential to the plaintiffs, is now useless is not an answer to all of the equitable relief which is sought: for example, it may be the defendants who made it useless. Further, what is meant by "substantially reduced utility", and what are the facts and circumstances on which that is asserted? Similarly, sub paragraph (v) reads "even if the Plaintiffs succeed in this action, which is denied, then limited money relief at best will be recovered.". What is meant by "limited" is not clear nor am I sure of what the defendants mean by "recovered". Sub paragraph (vi) repeats some matters referred to earlier in relation to Ms Anderson and other investigators, but in the midst of a series of general and unparticularised allegations. That leaves sub paragraph (vii) which is made up of a series of broad and unparticularised allegations of serious misconduct involving misrepresentations to charities and prospective donors, including misrepresentations as to these proceedings which appear to have an element of alleged contempt. In my view the whole of paragraph 33(f) should be struck out pursuant to r 162.

[28] That leaves for consideration paragraph 40A and 40B of the Amended Defence. Paragraph 40A, read alone in its reference to the grant of equitable relief as "harsh and oppressive", would give the impression of a plea of hardship to the defendants. However, nothing in the purported particulars would seem to go to that case, and as I have mentioned, the proper characterisation of what the defendants are attempting to plead is that the proceedings, for various reasons, are an abuse of process. Paragraph 40A should be struck out.

[29] Paragraph 40B pleads that the proceedings are "vexatious, oppressive and an abuse of the process". As I have indicated, there is a good purpose to be served by a pleading of the defendants' case as to the gathering of false evidence. At present, paragraph 40B should be allowed to remain in the pleading, if it can be supported by further paragraphs within the defence which plead its proper factual basis.

[30] The result on the plaintiffs' application should be that:

(a) Paragraph 40A of the amended defence be struck out;

(b) The defendants be directed to file and serve within 21 days of this order a further amended defence which pleads the facts and circumstances relied upon for the allegations in paragraphs 39 and 40B.

(c) Paragraphs 33(a), (d), (e) and (f), 33A and 33B of the amended further and better particulars of the defence, filed 7 July 2003, be struck out.

[1] Citing Australian Federal Police Commissioner v Propend Finance Pty Ltd (1997) 108 CLR 502- 514.

[2] Cross at [25290] citing Derby & Co Ltd v Weldon (No 7) [1990] 3 All ER 161.

[3] See Re Compass Airlines Pty Ltd (1992) 35 FCR 447 at 463 and the cases there cited.