Laing v Construction, Forestry, Mining and Energy Union

(c) paragraphs 55-64 and paragraphs 42-50 and 52-3 and paragraphs 5, 43, 51 and 54 be struck out; (or alternatively)

2. That the Applicant be given leave to re-plead, in such form, as he is advised.'

Background 2 The original application was made under s 170NC of the Workplace Relations Act 1996 (Cth)("the Act") on the basis of an allegation that the first and second respondents, the Construction, Forestry, Mining and Energy Union ("the CFMEU") and the second respondent, John Cummins, ("the second respondent") had taken action with intent to coerce W.M. Loud Pty Ltd ("W.M. Loud") into entering into a certified agreement. By further amended application and statement of claim dated 26 July 2004 the applicant alleged, amongst other things, that the third respondent and Sheedy had similarly contravened s 170NC of the Act. The third respondent and Sheedy subsequently contended that the further amended application and statement of claim were deficient for failing to disclose a reasonable cause of action. 3 By a letter dated 28 October 2004 the solicitors for the applicant sought the consent of the third respondent and Sheedy to the filing and service of a yet further amended application and statement of claim. The third respondent and Sheedy later indicated that they would contend that the proposed further amended application and statement of claim did not disclose a reasonable cause of action. 4 The question presently requiring resolution arises out of the motions on notice respectively filed by the applicant on 30 November 2003 and by the third respondent and Sheedy on 3 December 2004 which seek directions as to how the applicant can formulate a further amended statement of claim and application appropriate to charge those respondents.

The Rules of Court 5 Order 13 r 2 of the Rules of this Court provides: '(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.

(2) 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.

(7) An amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law:

(a) arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment; or

(b) subject to subrule (9), arises, in whole or in part, out of facts or matters that have occurred or arisen since the commencement of the proceeding.

(8) Subject to subrule (9), an amendment of a pleading may be made even if the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.

(9) Paragraph (7) (b) and subrule (8) do not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or a proceeding of a particular kind may be brought or instituted.'

(a) a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved; and

(b) paragraph (a) has effect subject to this Order and to Order 4 (which relates to commencement of proceedings) and to Order 12 (which relates to particulars.'

7 Order 11 r 5 provides: 'A party need not plead a fact if:

(b) the burden of disproving the fact lies on the other party;

except so far as may be necessary to meet a specific denial of that fact by the other party in his pleading or failure to plead such fact is likely to cause the other party to be taken by surprise.'

8 Order 11 r 10 provides: 'In a pleading subsequent to a statement of claim a party shall plead specifically any matter of fact or point of law (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) that:

(b) if not specifically pleaded might take the other party by surprise.'

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or

(c) is otherwise an abuse of the process of the Court;

the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.'

Relevant principles 10 Counsel for the applicant submitted that, pursuant to O 13 r 2 (set out at [5] above), the Court should grant leave to amend the pleadings, unless the proposed amendments are so obviously futile that they should be struck out; see Leotta v Public Transport Commission (1976) 9 ALR 437. 11 It was contended for the applicant that the principles governing the Court's power to strike out a pleading pursuant to O 11 r 16 are relevant in this respect. Counsel for the applicant submitted that the power will be exercised only where the applicant's case is manifestly untenable and cannot possibly succeed; see General Steel Industries Inc. v Cmr for Railways (NSW) (1964) 112 CLR 125 at 130. It was said that, for impugned sections of a statement of claim to be struck out, they must be plainly unarguable and bound to fail; see Murex Diagnostics Australia Pty Ltd v Chiron Corp (1995) 55 FCR 194. Counsel for the applicant submitted that the Court's discretion to strike out a pleading should be exercised sparingly and with caution, as established by Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164. 12 For the applicant it was contended that, if a cause of action raised by a pleading is fairly arguable, it will not be struck out and, in assessing whether a cause of action is arguable it should be assumed that the factual allegations in the statement of claim can be made out at trial; see Empire Shipping Co Inc v Owners of the Ship Shin Kobe Maru (1991) 32 FCR 78. Counsel for the applicant submitted that, where the dispute between the parties depends upon disputed issues of fact, it will never be appropriate for the claim to be struck out; see Unilam Holdings Pty Ltd v Kerin (1992) 107 ALR 709. The well-established principle that a statement of claim will not be struck out unless it is manifestly untenable or defective was said to militate against the resolution of detailed submissions inviting a minute analysis of the impugned statement of claim; see Scottish Pacific Business Finance Pty Ltd v Soundstage Australia Ltd (1993) ATPR 41-273 per French J at 41,677.

Section 170NC 13 Counsel for the applicant contended that s 170NC of the Act relevantly prohibits a person from taking or threatening to take industrial action or other action, with the intention of coercing another person to agree or not to agree to do one of the things specified in s 170NC(1)(c) and (d). 14 It was submitted that the principles relevant to the operation of s 170NC included the following: (a) the expression "other action" includes conduct of a kind taken by a person which does not fall within the definition of "industrial action" but which is related to the performance of work by employees for an employer; see National Tertiary Education Union v Commonwealth of Australia (2002) 117 FCR 114 at [138]-[139]. (However, in oral submissions Counsel for the applicant conceded that the High Court had observed in Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] 209 ALR 116that this proposition is not settled law). (b) the requisite coercion requires conduct that is compulsive in the sense that the pressure brought to bear, from a practical perspective, negates choice, and is unlawful, illegitimate or unconscionable; see Finance Sector Union v Commonwealth Bank of Australia (2000) 106 FCR 16 at [18]-[38]; National Union of Workers v Quenos (2001) 108 FCR 90 at [128]; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("CEPU") (2001) 109 FCR 378 at [41]; Anglo Coal Pty Ltd v CFMEU [2003] FCA 1073 at [19]; (c) a respondent must have actual knowledge of the circumstances that make the conduct coercive. Knowledge of the probability of the intended result is not required. A person will not escape liability by establishing a belief that the conduct was lawful. If a person deliberately refrains from making enquiries because the person knows the probable consequences of the enquiries, constructive knowledge equivalent to actual knowledge will be established; see Seven Network v CEPU (supra) at [33]-[37] and Anglo Coal v CFMEU (supra) at [19]; (d) the proscribed intent need not be the sole reason for the conduct, as long as it is a substantial or operative reason; see Hanley v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union ("AFMEPKIU") (2000) 100 FCR 530 at [45]; and (e) in judging whether coercion was intended, the Court may have regard to the characteristics of the parties; see Finance Sector Union v Commonwealth Bank (supra) at [38].

The causes of action against the third respondent and Sheedy 15 The applicant submitted that Sheedy had taken steps to cause the third respondent to cancel its contract dated 14 August 2003 with W.M. Loud, with the intent to coerce W.M. Loud into making an agreement with the CFMEU, or alternatively into making an agreement which complied with the Victorian Building Industry Agreement ("VBIA") or further alternatively into varying the agreement between W.M. Loud and the Australian Workers' Union ("AWU"); (see pars 44-48, 50, 52 and 56-58 of the new statement of claim). The applicant submitted that the ground for this cause of action is supplied by the contents of a draft affidavit of Sheedy provided to the applicant, before the third respondent and Sheedy had been joined to the present proceedings. The draft affidavit indicates that the third respondent took the view in or about August or September 2003 that W.M. Loud's enterprise agreement did not comply with the VBIA and the contract was cancelled because the third respondent wanted W.M. Loud to have a VBIA compliant enterprise agreement. In this respect, the applicant referred to par 57 of the new statement of claim. 16 Counsel for the applicant submitted that, for the purposes of s 170NC, the cause of action is entirely made out. It is said that sufficient material facts are pleaded to make good the allegations that: (a) the third respondent and Sheedy took or threatened to take action;

(b) the action was "other action" within the meaning of s 170NC; and

(c) the respondents had the requisite intent to coerce W. M. Loud.

17 Counsel for the applicant further contended that it is plainly arguable that the action taken by the third respondent and Sheedy is "other action" within the meaning of s 170NC. The action consisted essentially of the cancellation by the third respondent of the contract with W.M. Loud for reasons going to the nature and content of W.M. Loud's enterprise agreement. The cancellation took place in the context of significant communications between, on the one hand, the CFMEU and the second respondent, and, on the other hand, the third respondent and Sheedy. It was said for the applicant that the nature of the action, together with its "industrial" context, makes it strongly arguable that it amounted to "other action". 18 It was next urged on behalf of the applicant that, given the content of the draft affidavit of Sheedy, it is also plainly arguable that the respondents intended to coerce W.M. Loud into making an enterprise agreement which, in the view of the third respondent and Sheedy, complied with the VBIA. It was said that, in this respect, the characteristics of the parties are also relevant in that the fact that W.M. Loud is a small asphalting sub-contractor whereas the third respondent is a much larger contractor in the building industry may be significant when the Court comes to consider whether the requisite intent has been proved. 19 Counsel for the applicant submitted that it is plainly arguable that the action taken was unlawful, illegitimate or unconscionable in view of the fact that: (a) a valid contract existed between W.M. Loud and the third respondent; (b) Sheedy took steps to cause the third respondent to cancel the contract; and (c) there was no valid reason for the cancellation. 20 It was submitted that any factual disputes concerning, for example, the meaning or content of the contract or of W.M. Loud's enterprise agreement, cannot be resolved on a motion to strike out the statement of claim but must await determination at trial.

The position of Sheedy 21 The line of authority exemplified by Said v Butt (1920) 3 KB 497 and O'Brien v Dawson (1942) 66 CLR 18 relied on by the third respondent and Sheedy was said by the applicant to be concerned essentially with the tort of interference with contractual relations. According to the third respondent and Sheedy, that line of authority precludes the assertion that Sheedy's alleged contravention of s 170NC has caused the third respondent to contravene the same section. 22 That submission was said by Counsel for the applicant to be misconceived because cases like Said v Butt and O'Brien v Dawson are authority for the proposition that, in respect of the tort of interference with contractual relations, a director of a company which has unlawfully cancelled a contract cannot be said to be a third party (independent of the company) who has caused the company to cancel the contract. This was said to follow because the actions of the director are taken to be the actions of the company, a proposition which has no application to a proceeding like the present which does not involve the cause of action of interference with contractual relations. Rather, the present proceeding is founded on an alleged breach of a statutory provision imposing a penalty. It was further submitted that it is abundantly clear from Hanley v AFMEPKIU and Seven Network v CEPU that a person, like a union official or a company director, may behave in such a way that both the natural person, and the relevant organisation or company are in breach of s 170NC. The proposition that cases like Said v Butt and O'Brien v Dawson preclude the Court from finding that Sheedy has caused the third respondent to contravene s 170NC was said to be wholly without substance. Accordingly, the attack by the third respondent and Sheedy on the new statement of claim could not be sustained and orders should be made in the form sought by the applicant's notice of motion dated 30 November 2004.

Respondents' submissions 23 By their motion on notice dated 3 December 2004, the third respondent and Sheedy opposed a grant of leave to file and serve the new statement of claim on the ground that it does not disclose a reasonable cause of action. Alternatively, it was contended that some paragraphs of the new statement of claim should be struck out as not contributing to the disclosure of a reasonable cause of action or as being otherwise embarrassing.

The new statement of claim 24 Counsel for the third respondent and Sheedy submitted that in the new statement of claim the applicant has pleaded evidence rather than material facts and so has not complied with O 11 r 12. It was submitted that the proposed further amended application and the new statement of claim do not identify whether one, or more than one, contravention of s 170NC is alleged. Nor do they separate the alleged contraventions. 25 It was pointed out that pars 63 and 64 of the new statement of claim assert that the matters pleaded amount to "a breach" of s 170NC(1) but it is not clear from pars 5 and 6 of the application whether one contravention, or more than one contravention, of s 170NC is alleged. Counsel for the third respondent and Sheedy submitted that each contravention has to be identified in order to put those respondents properly on notice of the case which they have to meet. 26 Counsel for the third respondent and Sheedy submitted that the proposed further amended application and the new statement of claim seek to allege contraventions (including contraventions by Sheedy) which could not, on any view, fall within the scope of s 170NC. It was further said that the new statement of claim failed to identify the material facts constituting the alleged "unlawfulness", "unconscionability" and "illegitimacy", all of which should, in any event, have been alleged in the alternative.

Section 170NC is a Penalty Proceeding 27 It was next submitted for the third respondent and Sheedy that the proceeding is a penalty proceeding; (see Alfred v Walter Construction Group Ltd [2003] FCA 993 (19 September 2003); and Rich v Australian Securities and Investment Commission (2004) 209 ALR 271) so as to entitle those respondents to the protection of the penalty privilege. The rationale of the asserted privilege was said to be that "those who allege criminality or other illegal conduct should prove it"; (see Rich at [24]). Thus, in a penalty case, the respondents, and particularly Sheedy, are entitled to a proper pleading.

The causes of action against the third respondent and Sheedy 28 Counsel for the third respondent and Sheedy submitted that the ingredients of the cause of action alleged by the applicant are action or threatened action with "intent to coerce". It was noted that the applicant accepts that two elements must be established to prove "intent to coerce" under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, would negate choice. Second, the exertion of that pressure must involve conduct that is unlawful, illegitimate or unconscionable"; (see Seven Network v CEPU (supra) at [41].) 29 It was said, in relation to this point, that the applicant has introduced an allegation of "unlawful, illegitimate and/or unconscionable" behaviour, at par 59 of the new statement of claim and has made consequential amendments to par 38 but has not made corresponding allegations in relation to the third respondent's conduct. In the same context, it was acknowledged that, by deleting the former par 33, the applicant has abandoned any suggestion that the third respondent had acted as a result of pressure from the CFMEU.

The Contraventions 30 Counsel for the third respondent and Sheedy submitted that it was not possible to discern from the new statement of claim whether pars 44, 46, 48, 50, 52 and 53 are intended to allege separate contraventions. It was contended that pars 55 and 56 are inconsistent with pars 62 and 63 of the new statement of claim and pars 5 and 6 of the proposed further amended application. 31 Moreover, it was said, the "rolled up" nature of the plea in pars 46-48 of the new statement of claim tends to divert attention from the need for the elements of each contravention to be pleaded separately. It was also noted that the criticism of this type of "rolled up" or global pleading had been made before the applicant had prepared the new statement of claim but had been ignored. (Mr Stuart Wood of Counsel for the third respondent and Sheedy had set out his criticisms of the applicant's pleading in a memorandum dated 17 September 2004 to Mr Jacobs of Counsel for the applicant (which forms exhibit "APM-2" to the affidavit of Mr Andrew Maher served on 3 December 2004; see eg pars 58-64).)

Attempting to plead contraventions which could not, on any view, fall within the scope of s 170NC. 32 Counsel for the third respondent and Sheedy noted that each element of Sheedy's alleged conduct, namely, the "advice" given and Sheedy's "enquiry" on 24 August 2003 (see par 44); the "advice" given on 26 August (see par 46); the "advice" given on 4 or 5 September (par 48) and Sheedy's "instructions" to send a letter (par 52) is now said to be "unlawful, alternatively illegitimate and/or unconscionable"; (see par 59 of the new statement of claim) but no similar allegation has been made in relation to the conduct of the third respondent. 33 It was said that the applicant's pleading was deficient in that it failed to allege that the "action" taken by the third respondent to cancel the contract or, in the alternative, purporting to do so (see par 50) was "unlawful etc". 34 Counsel for the third respondent and Sheedy further submitted that, although each element of Sheedy's conduct was alleged to be "unlawful, alternatively, illegitimate and/or unconscionable", a proper analysis of that conduct, for example, Sheedy's "advice" and his "enquiry:" on 24 August 2003 (par 44) or his "instructions" to send a letter (par 52), shows that the allegation of "unlawfulness etc" cannot be made good without establishing further facts yet to be pleaded.

Identifying the material facts upon which the allegations of "unlawfulness", "unconscionability" and "illegitimacy" are based 35 Counsel for the third respondent and Sheedy advanced two reasons why the material facts upon which the applicant's allegations are based should be pleaded. First, the pleading should be expanded to avoid taking the respondents by surprise (see O11 r 5 and O 11 r 10(b)). Second, it was submitted that the material facts ought to be pleaded as this is a penalty proceeding and "those who allege criminality or other illegal conduct should prove it"; (see Rich at [24], referred to at [27] above; see also par 63 of Mr Wood's memorandum of 17 September 2004). As to the elements of any unlawfulness etc., it was submitted by Counsel for the third respondent and Sheedy that they should not be forced to guess at the unlawfulness relied on; (see par 14 of Mr Wood's memorandum). If the unlawfulness alleged is, for example, a breach of contract, it was submitted that the contract, the term and the breach should each be specifically identified. The applicant should have no difficulty in complying with that requirement because it is clear from par 53 of the new statement of claim it is aware of the terms of the contract with W. M. Loud. 36 It was further submitted for the third respondent and Sheedy that the same goes for unconscionability. No attempt has been made to plead facts establishing "a special disability" and "an absence of a reasonable degree of equality" and "that the disability was sufficiently evident" and so on; (see, for example, Louth v Diprose (1992) 175 CLR 621, at 637). Counsel submitted that the allegation of unconscionability etc. has been added to the pleadings because Seven Network v CEPU refers to those concepts, not because the facts of the present case support those pleas (unless there are additional facts yet to be pleaded). It was contended, for example, that it is highly unlikely that the applicant will be able to establish facts necessary to plead some "special disability", as between the two companies.

Plea in the alternative 37 Counsel for the third respondent and Sheedy also contended that it is not possible to respond in a concise fashion to the allegations made in pars 5, 43, 51 and 54 in the form in which they appear in the new statement of claim. It was submitted that the allegations in those paragraphs ought to be in the alternative.

The adequacy of the proposed further amended application to charge the third respondent 38 The relief claimed against the third respondent in the proposed further amended application is expressed as follows: '5. The imposition of a penalty under s.170NF of the Act upon the Third Respondent in relation to the contravention of s.170NC in that during the period 22August 2003 to November 2003 the Third Respondent:

(a) threatened and/or advised W.M. Loud that it was considering not utilising the services of W.M. Loud to perform construction work for the Third Respondent; and/or

(b) threatened and/or advised W.M. Loud that it was considering and/or would be cancelling the contract, and not providing W.M. Loud with further work;and / or

(c) purported to cancel, alternatively cancelled, the contract

(i) to make an agreement with the First Respondent under Division 2 or 3 of Part VIB of the Act;

(ii) alternatively, to make an agreement under Division 2 or 3 of Part VIB of the Act that complied with the terms of the industrial instrument described as the Victorian Building Industry Agreement 2000-2005 (VBIA);

(iii) alternatively, to vary the certified agreement between W.M. Loud and the Australian Workers Union entitled "AWU WM Loud Agreement 2003" made under Division 2 of Part VIB of the Act ("2003 Agreement").'

39 Section 170NC(1) of the Act provides: 'A person must not:

(a) take or threaten to take any industrial action or other action; or

(b) refrain or threaten to refrain from taking any action;

with intent to coerce another person to agree, or not to agree, to:

(c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or

(d) approving any of the things mentioned in paragraph (c).'

40 Thus, an element of any contravention of the subsection is the taking or threatening to take action, or refraining, or threatening to refrain, from taking action with the proscribed intent directed to one of the matters identified in pars (c) and (d). As I understand it, the "action", which the applicant intends to allege that either or both the third respondent and Sheedy have taken or threatened to take in contravention of s 170NC(1)(a), is either or both: (i) the cancellation of the existing contract between W.M. Loud and the third respondent; (ii) refusing to consider W.M. Loud in the allocation of future sub-contracts which, in the ordinary course, W.M. Loud would be capable of performing. 41 As s 170NC(1) (b) is expressed as an alternative to s 170NC(1)(a), it is open to the applicant, if the allocation of future sub-contracts is regarded as "action" within the sub-section, to plead facts to make out an allegation of refraining, or threatening to refrain from taking that action. 42 Additionally to the elements required by one or other of pars (a) and (b) of s 170NC(1), a contravention requires that the taking or threatening to take action, or the refraining or threatening to refrain from taking action be "with intent to coerce" W.M. Loud to agree to making a certified agreement with the CFMEU or a certified agreement which complied with the VBIA, or to varying its existing agreement with the AWU. 43 I do not understand it to be suggested that the third respondent had any intent to coerce W.M. Loud to agree to terminate, or extend the nominal expiry date of a certified agreement with the CFMEU, or of one complying with the VBIA since, ex hypothesi, no such agreement was in existence at the time of the alleged action. Nor is there any suggestion that any action by the third respondent was directed to W.M. Loud's agreeing to "approve" the making etc of a certified agreement with the CFMEU or one complying with the VBIA. 44 This analysis of the provisions of s 170NC(1) indicates that sub-pars (a) and (b) of par 5 of the prayer for relief in the proposed further amended application are inappropriate to identify "action" in the sense used in s 170NC(1)(a) or (b). The "action" does not consist of "threatening and/or advising" anything. However, proof of a threat to take or refrain from taking "action" is one way of establishing a contravention based on one or other of those paragraphs. I also consider that there is much force in the complaint of the third respondent and Sheedy that it is not clear from the proposed further amended application whether each of them is alleged to have committed more than one contravention of s 170NC(1) or whether it is intended to allege a number of single contraventions, each an alternative to the other. If the latter is the applicant's intention, par 5 of the further amended application could be cast in some such form as the following; "The imposition of a penalty under s 170NF of the Act upon the Third Respondent for its contravention between 22 August 2003 and November 2003 of s 170NC constituted by: (a) refusing to consider W.M. Loud in the allocation of future sub-contracts for work which W.M. Loud was capable of performing with the intent to coerce W.M. Loud to agree:- (i) to make an agreement with the First Respondent under Division 2 or 3 of Part VIB of the Act ("the first proscribed agreement"); or alternatively; (ii) to make an agreement under Division 2 or 3 of Part VIB of the Act that complied with the terms of the industrial instrument described as the Victorian Building Industry Agreement 2000-2005 (VBIA) ("the second proscribed agreement") or alternatively; (iii) to vary the certified agreement between W.M. Loud and the Australian Workers Union entitled "AWU W M Loud Agreement 2003 made under Division 2 of Part VIB of the Act ("2003 Agreement") ("the proscribed variation"). (b) alternatively, threatening to refuse to consider W.M. Loud in the allocation of future sub-contracts for work which W.M. Loud was capable of performing with the intent to coerce W.M. Loud to agree; (i) to make the first proscribed agreement; or alternatively (ii) to make the second proscribed agreement; or alternatively (iii) to make the proscribed variation. (c) alternatively cancelling or purporting to cancel the contract with the intent to coerce W.M. Loud to agree; (i) to make the first proscribed agreement; or alternatively (ii) to make the second proscribed agreement; or alternatively (iii) to make the proscribed variation. (d) alternatively, threatening to cancel the contract with the intent to coerce W.M. Loud to agree; (i) to make the first proscribed agreement; or alternatively (ii) to make the second proscribed agreement; or alternatively (iii) to make the proscribed variation. (e) alternatively refraining from allocating to W.M. Loud future sub-contracts for work which W.M. Loud was capable of performing with the intent to coerce W.M. Loud to agree; (i) to make the first proscribed agreement; or alternatively (ii) to make the second proscribed agreement; or alternatively (iii) to make the proscribed variation. (f) alternatively threatening to refrain from allocating to W.M. Loud future sub-contracts for work which W.M. Loud was capable of performing with the intent to coerce W.M. Loud to agree; (i) to make the first proscribed agreement; or alternatively (ii) to make the second proscribed agreement; or alternatively (iii) to make the proscribed variation." 45 If the applicant intends to allege that the third respondent and Sheedy have committed more than one contravention of s 170NC(1), the structure of the paragraph of the prayer for relief suggested at [44] above will have to be adjusted to indicate clearly which contraventions are additional and which are alleged in the alternative.

Which paragraphs of the new statement of claim are effective to charge the third respondent? 46 Paragraph 21 of the new statement of claim alleges; '21 At all material times the Third Respondent had knowledge of the fact that W.M. Loud was a party to a certified agreement made under the Act with the AWU.' Particulars are then given of the means by which the third respondent derived the knowledge imputed to it. 47 Paragraph 21 has been criticised by Mr Stuart Wood of Counsel for the third respondent and Sheedy as not supporting an inference that the third respondent had an "intent to coerce" W.M. Loud. However, the allegation is necessary to support the assertion identified in sub-subpars (a)(iii), (b)(iii), (c)(iii), (e)(iii) and (f)(iii) of the claim for relief suggested at [44] above. It should therefore be retained in the reformulated statement of claim ("the new version") which I shall give the applicant leave to file and serve.

Paragraph 23 48 This paragraph pleads a contract ("the contract") between W.M. Loud and the third respondent for the construction of a car park and associated works at the Roxburgh Park Secondary College ("the site"). Counsel for the third respondent and Sheedy has taken no exception to it and it is a clearly necessary preface to the claim that the third respondent cancelled or threatened to cancel the contract.

Paragraph 25 49 This paragraph alleges that at all material times W.M. Loud was performing work for the third respondent at two other sites. No exception has been taken to it and it should be retained as relevant to the coercive effect of a cancellation or threatened cancellation of the contract referable to the site at Roxburgh Park.

Paragraph 27 50 This paragraph alleges: '27. W.M. Loud from time to time enters into contracts to perform work of the kind referred to in paragraphs 23 and 25 by tendering for subcontracts with contracting companies in competition with a number of other similar companies.' No exception has been taken to it and it should be retained as giving point to the asserted refusal or threat of refusal to allocate future sub-contracts to W.M. Loud for the performance of work which, in the ordinary course, it would be capable of carrying out.

Paragraph 33 51 In this paragraph it is pleaded: '33. The loss of the contract and/or other contracts of a similar kind and/or the inability of W.M. Loud to make similar contracts with other builders or contracting companies or perform the contract or similar contracts, has and will have a significant adverse effect on the business of W.M. Loud.' 52 This paragraph, in its terms, makes no allegation relevant to the claim against the third respondent and Sheedy except for the assertion that "the inability of W.M. Loud to … perform the contract … has and will have a significant adverse effect on the business of W.M. Loud." That assertion supports the ultimate allegation that the cancellation, or threatened cancellation, of the contract would have the requisite coercive effect on W.M. Loud. However, it would be embarrassing to require the third respondent to plead to the paragraph in its present "rolled up" form. If it is desired to retain, as against the third respondent, the allegation which I have extracted, it should be separated from the rest of the allegations referable to the first and second respondents and pleaded in a separate paragraph.

Paragraph 42 53 This paragraph is in the following terms: '42. On or about 22 August 2003 the Third Respondent advised W.M. Loud about what was described as an industrial problem at the site, being a concern that W.M. Loud was not complying with the VBIA.

The advice was given by Mr Harvey to Mr Martinis in a telephone conversation between them.'

It has been pointed out by Counsel for the third respondent and Sheedy that the claim for relief against those respondents has been based on action "during the period 14 August 2003 to November 2003," whereas par 42 suggests that the relevant action did not commence until, at the earliest, 22 August 2003. More significantly, the paragraph contains no allegation tending to establish the taking or threat of "action" or the intent of the third respondent in doing so. At best, it gives particulars which might support the inference that the third respondent had a particular state of mind at a relevant point of time which would have to be identified. Accordingly, a paragraph in the form of par 42 of the new statement of claim should not appear in the new version. It will be a matter for the drafter of the new version whether the substance of par 42 is incorporated in particulars of an allegation therein.

Paragraph 43 54 This paragraph recites that a Mr Harvey was at all material times employed by the respondent and authorised to act on its behalf in dealing with W.M. Loud. Mr Harvey is implicated in the allegations in pars 47, 61(b) and 62 of the new statement of claim which are discussed below. Accordingly, if the effect of any of those paragraphs is to be preserved in the new version, a paragraph or particulars in some such terms as the existing par 43 should be retained.

Paragraph 44 55 This paragraph alleges: '44 On or about 24 August 2003 the Third Respondent through Sheedy advised W.M. Loud through Mr Martinis that the CFMEU had contacted the Third Respondent to query whether W.M. Loud was adhering to the redundancy provisions of the VBIA. Sheedy further enquired whether W.M. Loud had considered entering into a certified agreement with the CFMEU in addition to its certified agreement with the AWU, in response to which he was advised by Mr Martinis that such a course would not work within W.M. Loud's business structure.

The advice was given by Sheedy on behalf of S.J. Higgins in a telephone conversation between Sheedy and Mr Martinis on or about 24 August 2003.'

Like the allegation in par 42 discussed at [53] above, this paragraph does not tend to establish the taking, or any threat, of "action" or the intent of the third respondent in taking or threatening it. By focusing on the third respondent's "advising", "querying" and "enquiring" of various matters to or of W.M. Loud, it does no more than lay a foundation for imputing to the third respondent a certain state of mind. That applies a fortiori to "advice" by Mr Martinis of W.M. Loud to Mr Sheedy. As such, this paragraph is appropriate only for incorporation in particulars of matters said to support an inference that the third respondent was concerned to persuade W.M. Loud to enter into a certified agreement to which the CFMEU was a party or which was compliant with the redundancy provisions of the VBIA or both.

Paragraph 45 56 This paragraph alleges: '45 Following upon the advice pleaded in paragraph 44 above:

(a) representatives of W.M. Loud, namely Keogh and Williamson, met with the Second Respondent and Mr Daryl Spivey of the CFMEU at the offices of the CFMEU at 500 Swanston Street, Carlton on 26 August 2003;

(b) at this meeting, the events pleaded in paragraph 29(c) above occurred;

(c) immediately after the meeting referred to in sub-paragraph (a) above Sheedy met with the Second Respondent and Mr Daryl Spivey at the CFMEU offices at 500 Swanston Street, Carlton.'

The "events" pleaded in par 29(c) are that: 'On 26 August 2003 the Second Respondent threatened W.M. Loud that in the absence of a certified agreement between W.M. Loud and the CFMEU the Second Respondent would tell builders not to use W.M. Loud and that the CFMEU would tell S.J. Higgins and other builders not to use W.M. Loud.' It follows that the proposed par 45 is only material to a cause of action against the third respondent in the sense that it permits an inference that it was aware, through Sheedy, of threats made by the first and second respondent. If that inference were drawn, it would permit the further inference that the third respondent was concerned, or had an interest, to reinforce those threats by "action" of its own. In that sense, for the reasons explained at [53] and [55] above, the proposed par 45 is appropriate only for incorporation in particulars of matters said to raise an inference as to the "intent" with which the third respondent undertook specific "action" or made threats alleged against it.

Paragraph 46 57 This paragraph, like pars 44 and 45 discussed above, does not contain any direct allegation of "action" taken or threatened by the third respondent. At best, by referring to "advice" to W.M. Loud from Sheedy as to what he had been told by the second respondent and what the third respondent would "need to consider", it provides a basis for an inference as to the intent with which the third respondent undertook, or threatened, specific action. Accordingly, if it is to be preserved, it must be consigned to an appropriate sub-paragraph of particulars.

Paragraph 47 58 As with the preceding paragraphs, this paragraph does not contain a substantive allegation of any actual or threatened "action" by the third respondent. For the reasons already explained, its references to "encouragement and/or advice" are appropriate only for inclusion in particulars of matters said to support an inference that, when it undertook or threatened specific "action", the third respondent had the intent to coerce W.M. Loud to make a proscribed agreement or the proscribed variation. (I observe parenthetically that the "particulars" annexed to the existing par 47 of the proposed statement of claim are inadequate because they fail to give the substance of the conversation between Mr Martinis and Mr Harvey.)

Paragraph 48 59 This paragraph alleges: '48 On or about 4 or 5 September 2003 the Third Respondent through Sheedy advised W.M. Loud that:

(a) the CFMEU had advised and/or made it clear to the Third Respondent that the Third Respondent was not to use W.M. Loud on any more of its projects;

(b) the reason the CFMEU had so advised or made it clear to the Third Respondent was that W.M. Loud did not have a certified agreement with the CFMEU and did not comply with the VBIA; and

(c) the Third Respondent would be cancelling the contract and terminating future work.

The advice was given to Mr Martinis by Sheedy in a telephone conversation on or about 4 or 5 September 2003.'

Except for the allegation in sub-par (c) this paragraph does not directly assert any "action" or threatened action by the third respondent against W.M. Loud. For the reasons already explained, sub-pars (a) and (b) are capable only of supporting an inference as to the intent with which the third respondent took or threatened "action" properly so called. If, as is by no means clear, sub-par (c) is intended to allege the making of a threat rather than the conveying of the existence of an established fact, the allegations in sub-pars (a) and (c) could be incorporated in particulars of facts said to give rise to the inference that the threat was made with the intent to coerce W.M. Loud to make a proscribed agreement or the proscribed variation.

Paragraph 49 60 This paragraph contains the assertion that, in response to the matters pleaded in par 48, W.M. Loud advised the third respondent "through Sheedy" that it did not regard having an additional certified agreement with the CFMEU as an option. Particulars annexed to par 49 indicate that the advice from W.M. Loud occurred on 4 or 5 September 2003. Like some of the earlier paragraphs discussed above, this paragraph is not directed to any "action" or threatened "action" by the third respondent. Its relevance is only to establish the time at which W.M. Loud intimated a refusal or unwillingness to make the first proscribed agreement or the proscribed variation. Accordingly, it should appear in particulars of the matters from which is to be inferred the "intent" with which the third respondent, after 5 September 2004, undertook or threatened specified forms of "action".

Paragraph 50 61 Paragraph 50 alleges that on or about 8 September 2003 the third respondent advised W.M. Loud that it would be sending a letter cancelling the contract. It is further alleged that shortly after that advice a letter was sent by facsimile cancelling, or purporting to cancel, the contract. This paragraph clearly alleges "action" or a threat of action by the third respondent and can, accordingly, be retained in the new version of the statement of claim provided that it is linked to the requisite intent to coerce W.M. Loud to make one of the proscribed agreements or the proscribed variation.

Paragraphs 51 and 52 62 These paragraphs allege: '51. Mr Zahopoulos was at all material times employed by the Third Respondent in the capacity of Project Manager, and acted on behalf of the Third Respondent and/or in the course of his employment and/or within the scope of his actual or apparent authority in his dealings with W.M. Loud.

52. The Third Respondent sent the letter dated 8 September 2003 pleaded in paragraph 50 above at the initiative of and/or on the instructions of Sheedy.'

It is not clear why it has been thought necessary to plead extensively in par 51 the basis of the authority of Mr Zahopoulos to give the advice and cancel, or purport to cancel, the contract as alleged in par 50. It would be sufficient to allege in par 50 that "the third respondent by its Project Manager, Mr Zahopoulos advised ….." etc. The confusion is exacerbated by par 52 which seems, contrary to the understanding which I have just indicated, to allege that Zahopoulos did the things alleged in par 50, not on behalf of the third respondent but "at the initiative of" or "on the instructions of" Sheedy. If it is truly intended to allege that Zahopoulos was authorised to act on behalf of Sheedy personally and was not merely authorised or instructed by Sheedy to act on behalf of the third respondent, a clear basis of fact for that somewhat surprising allegation should be spelled out in the new version of the pleading.

Paragraph 53 63 This paragraph alleges: '53. By letter dated 20 November 2003 the Third Respondent returned to W.M. Loud the bank guarantees furnished to the Third Respondent pursuant to the terms of the contract.' 64 If the return of the bank guarantees was a consequence required by the contract of the cancellation of the contract, it is not clear what this paragraph adds to par 50 discussed at [61]above. However, it may be that the return of the bank guarantees was not required on the cancellation of the contract. In that event, their return was another species of "action" or a further "threat". If it is desired to make the latter allegation, it should be set out distinctly and separately in the new version. As well, the pleading should identify, with appropriate particulars, the coercive intent which is said to have accompanied the return of the bank guarantees.

Paragraph 54 65 This paragraph alleges: '54. At all material times Sheedy:

(a) knew that W.M. Loud and the Third Respondent had entered into the contract;

(b) knew of the matters pleaded in paragraph 25, 27 and 45(a) above;

(c) knew or ought to have known of the matters pleaded in paragraph 33 above.'

If this paragraph is intended to allege knowledge imputed to the third respondent through the agency of Sheedy, it follows naturally from par 5, which recites: '5. The Fourth Respondent ("Sheedy") is and was at all material times employed by the Third Respondent in the capacity of Construction Manager and acted on behalf of the Third Respondent and/or in the course of his employment and/or within the scope of his actual or apparent authority.' The actual or constructive knowledge of the contract and the other aspects of W.M. Loud imputed to the third respondent by par 54 is therefore unsurprising and probably unnecessary except as providing a foundation, better furnished by way of particulars, for the allegation that the third respondent undertook the "action" or made threats with the requisite coercive intent. However, I gather that par 54 is intended also to establish a basis for fixing Sheedy with separate liability for contravening s 170NC(1) on his own behalf and as a principal. I shall therefore return to par 54 when I come to examine the pleading of the case against the Sheedy.

Paragraph 55 66 This paragraph alleges: '55. The conduct of the Third Respondent pleaded in paragraphs 44, 46, 48, 50 and 53 above and of Sheedy in paragraphs 44, 46, 48 and 52 is "other action" within the meaning of s.170NC of the Act.' In the sense that it pleads a matter of law rather than fact, this paragraph, as against the third respondent, is probably unnecessary. Nevertheless, if it did no more than indicate in a shorthand way the cause of action relied on by the applicant against the third respondent, it would be unobjectionable. However, par 55 introduces, in relation to the third respondent, the concept of "conduct" in conjunction with matters alleged in pars 44, 46, 48 and 53 which, as already explained, either do not, or only doubtfully, allege "other action" by the third respondent within the meaning of s 170NC(1). For these reasons, a paragraph corresponding with par 55 should not be retained in the new version.

Paragraph 61 67 This paragraph seeks to fix the third respondent with the "conduct" and "state of mind" of each of Harvey, Zahopoulos and Sheedy by alleging: '61. By reason of the matters pleaded in paragraphs 5, 43 and 51 above and/or the provisions of s.349 of the Act:

(ii) paragraphs 50 and 52 on the part of Zahopoulos; and

(iii) paragraphs 44, 45, 46, 48 and 52 on the part of Sheedy;

(i) Harvey pleaded in paragraphs 21 (as particularised) and 47;

(ii) Zahopoulos pleaded in paragraphs 21 (as particularised) and 50 and 52; and

(iii) Sheedy pleaded in paragraphs 22, 23, 25, 27, 30, 44, 45(a) and (c), 46, 48, 49 and 54 above

is the conduct and the state of mind of the Third Respondent.'

I have already indicated at [66] above that it is undesirable to introduce a concept of "conduct" which does not find expression in s 170NC(1). It is true that s 349 makes use of "conduct" and "state of mind" but that occurs in a general evidentiary provision intended for application to a wide variety of provisions distributed throughout the Act. It is trite that a statement of claim should plead material facts, not the evidence by which they are to be proved. See O 11 r 2 and eg, North Western Salt Co Ltd v Electrolytic Alkali Co Ltd [1913] 3 KB 422, at 425. Section 349 provides; '(1) Where it is necessary to establish, for the purposes of this Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and

(b) that the officer, director, employee or agent had the state of mind.

(2) Any conduct engaged in on behalf of a body corporate by:

(a) an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or

(b) any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent;

shall be taken, for the purposes of this Act, to have been engaged in also by the body corporate.

(3) A reference in this section to the state of mind of a person includes a reference to the knowledge, intent, opinion, belief or purpose of the person and the person's reasons for the intent, opinion, belief or purpose.'

The fact that Harvey gave W.M. Loud the "advice" or "encouragement" referred to in pars 42 and 47 is, for the reasons explained at [53] and [58] above, not material to an allegation that the third respondent took or threatened "other action" within the meaning of s 170NC(1). However, the giving of the advice or encouragement may constitute particulars of matters from which the requisite intent on the part of the third respondent may be inferred with the aid of s 349(3). 68 Similar considerations apply to the allegations in par 50. Insofar as that paragraph alleges a cancellation of the contract by Zahopoulos, that "action" will be taken, by force of s 349(2) to have been engaged in by the third respondent. 69 However, the allegation in par 52 that Zahopoulos sent the letter of 8 September 2003 "at the initiative of and/or on the instructions of Sheedy" is superfluous unless the third respondent puts in issue whether the sending of the letter was within the scope of the actual or apparent authority of Zahopoulos. In that event, any pleading, in addition to the short form suggested at [62] above, directed to the authority of Zahopoulos can be by way of reply. 70 The "conduct" attributed to Sheedy in pars 44, 45, 46, 48 [other than 48(c)] and 52 suffers from the same vice and, for the reasons already explained, par 61(a)(iii) should not be preserved in the new version. 71 The imputation in par 61(b) to the third respondent of the respective "state of mind" of each of Harvey, Zahopoulos and Sheedy is embarrassing and should not be preserved in the revised pleading. The relevant "state of mind" within s 349(3) for the purposes of s 170NC(1) is the intent to coerce W.M. Loud to make one or other of the proscribed agreements or to make the proscribed variation. The knowledge of officers of a corporation may be relevant to whether it, or a particular officer, had the requisite intent but, in that event, reference to that knowledge should be included in particulars of the matters from which it is said the intent should be imputed to the corporation.

Paragraph 62 72 This paragraph recites: '62. Further, by reason of the matters pleaded in paragraph 61 above, the Third Respondent had actual knowledge of the circumstances that made the action and conduct coercive for the purposes of s.170NC of the Act.' Presumably the reference to "actual knowledge" in this paragraph is intended to bring the case within the principles discussed by Merkel J in Seven Network v CEPU (supra) at [33]-[37]. However, as his Honour there makes clear, knowledge, whether actual or constructive in the sense explained in Seven Network at [36], goes to the "requisite intent" which must accompany the action or threat. As I have already indicated, that intent will have to be established distributively for each action or threat relied on as directed to coercing W.M. Loud to make a proscribed agreement or the proscribed variation. The persons whose knowledge is to be imputed to the third respondent should be identified wherever particulars are given in the new version of the facts, matters and circumstances from which the requisite intent is said to be inferred. There is already a plea in par 21 of knowledge of one relevant matter which is discussed at [46] above. If the new version makes an allegation, with proper particulars of that and other matters such as the likely financial impact on W.M. Loud discussed at [52] above, a paragraph in the present "omnibus" form of par 62 will be unnecessary.

Paragraph 63 73 This paragraph recites: 'By reason of the matters pleaded in paragraphs 33 and 42 to 62 above the Third Respondent has breached s.170NC(1) of the Act.' It has already been made clear by the amended application that the applicant is asserting that the third respondent has contravened s 170NC(1) of the Act. However, if it is desired to retain in the new version a paragraph corresponding with par 63 it will be necessary for it to refer to individual earlier paragraphs which substantively allege, with particulars, each specific action or threat taken or made by the third respondent with the intent to coerce W.M. Loud to make one or other of the proscribed agreements or the proscribed variation.

The adequacy of the proposed further amended application to charge Sheedy. 74 The relief sought against Sheedy is set out in these terms in par 6 of the proposed further amended application: '6. The imposition of a penalty under s.170NF of the Act upon the Fourth Respondent in relation to the contravention of s.170NC in that during the period 22 August2003 to November 2003 the Fourth Respondent:

(a) threatened and/or advised W.M. Loud that the Third Respondent was considering not utilising the services of W.M. Loud to perform construction work for the Third Respondent; and/or

(b) threatened and/or advised W.M. Loud that the Third Respondent was considering and/or would be cancelling the contract; and/or

(c) caused the Third Respondent to purportedly cancel, alternatively cancel, the contract,

(i) to make an agreement with the First Respondent under Division 2 or 3 of Part VIB of the Act;

(ii) alternatively, to make an agreement under Division 2 or 3 of Part VIB of the Act that complied with the terms of VBIA;

The form of that paragraph is not significantly different from that of par 5 directed to the third respondent which I have already discussed. However, a "threat" or "advice" that a third person was considering taking "action" or would take "action" would not seem, of itself, to amount to "action" or a threat of "action" within the meaning of s 170NC(1). It may be otherwise if the person making the "threat" or giving the advice were in a position to control the actions of the third person. That sort of control over the third respondent exercisable by Sheedy seems to be suggested in par 6(c) of the proposed amended application quoted above. However, no foundation for that suggestion can be found, as far as I am aware, in the body of the new statement of claim. Indeed, the suggestion is contradicted by the assertion in par 5 quoted at [65] above that Sheedy was at all material times employed by the third respondent as a construction manager. Nor can any support be found in the new statement of claim for the assertion in par 6(c) of the proposed amended application that Sheedy "caused" the third respondent to cancel, or purportedly cancel, the contract. 75 If it is desired to pursue, on some properly pleaded basis, the imposition of a penalty on Sheedy for his contravention, as a principal, of s 170NC(1), it will be necessary, as well as overcoming the deficiencies to which I have just referred, to reformulate par 6 mutatis mutandis, in the same way as I have indicated at [39]-[45] above is required for par 5.

The adequacy of the new statement of claim to charge Sheedy

Paragraph 22 76 This paragraph corresponds with par 21 discussed at [47] above and is in the following terms: 'On and from about 20 August 2003 Sheedy had knowledge of the fact that W.M. Loud was a party to a certified agreement made under the Act with the AWU.

Information to this effect was provided to Sheedy by Mr Harvey on or about 20 August 2003.'

77 As already indicated in relation to par 21, the allegation in par 22 would be necessary to support an assertion that Sheedy on his own behalf took some action or made some threat with intent to coerce W.M. Loud to agree to make one of the proscribed agreements or the proscribed variation. However, it does not appear from the present pleading that Sheedy had any interest, otherwise than as an employee or agent of the third respondent, in W.M. Loud's making any such agreement. This position cannot, without more, be assimilated to that of the union organiser in Hanley v AFMEPKIU (supra) where the actual threats were made in express terms by the organiser to the employer. As well, the knowledge necessary for the organiser to have the requisite intent had been derived by his direct participation in discussions with the employer. By contrast, the mere fact that Sheedy knew, from information provided by another employee of the third respondent, Harvey, that W.M. Loud was a party to a certified agreement with the AWU, would not support an inference that he intended, on his own behalf, to coerce W.M. Loud to enter into a different agreement or to vary the agreement by adding the CFMEU as a party. Unlike the authority from the third respondent to Harvey, which is expressly pleaded in par 43, there is no allegation that Harvey was in any sense an agent of Sheedy in his personal capacity.

Paragraph 52 78 This paragraph alleges that the third respondent sent the letter referred to in par 50 discussed at [61] above "at the initiative and/or on the instructions of Sheedy." This pleading is open to a number of interpretations and is embarrassing. The use of the convention "and/or" in pleading has been succinctly criticised by Burchett J in Re Moage Ltd (in liquidation); Moage Ltd v Jagelman (1998) 153 ALR 711 where, after reviewing a number of authorities deprecating its use in other contexts, his Honour said, at 717; 'In my opinion, the expression is particularly unhappy when it is used in a statement of claim, which should express precisely the foundation of the proceeding. In the present case, as has been explained, an almost endless series of additional and alternative allegations would be conveyed by an analysis of the claim made in this way.' 79 The allegation that the letter of cancellation was sent "at the initiative" of Sheedy is too vague to enable him to plead to it in a defence. It is capable of meaning that Sheedy instructed Zahopoulos to write the letter. Alternatively, it may mean that Sheedy recommended to the directors of the third respondent that the letter be sent. The uncertainty is compounded by the allegation that the letter was sent "on the instructions of" Sheedy. That allegation is preceded by the objectionable convention "and/or" to which I have already alluded. Accordingly, Sheedy is left to guess at exactly what he is alleged to have done in connection with the letter. 80 Even more significantly, the allegation in par 52 is devoid of any indication of why whatever Sheedy did in connection with the letter was done with the intent personally to coerce W.M. Loud to enter into a proscribed agreement or make the proscribed variation. The contract which the letter of 8 September 2003 cancelled, or purported to cancel, was not Sheedy's contract. The only parties to it were, presumably, the third respondent and W.M. Loud. Accordingly, any action by Sheedy in relation to the contract would, in the ordinary course, have been taken by him in his capacity as an employee of the third respondent and on its behalf. It would follow that any intent which Sheedy had at the time of taking the action would have been the intent, not of Sheedy personally, but of the third respondent. 81 For these reasons par 52 in its present form should not be reproduced in the new version.

Paragraph 54 82 This paragraph alleges: 'At all material times Sheedy:

(a) knew that W.M. Loud and the Third Respondent had entered into the contract;

(b) knew of the matters pleaded in paragraph 25, 27 and 45(a) above;

(c) knew or ought to have known of the matters pleaded in paragraph 33 above.'

Presumably, the knowledge imputed to Sheedy by this paragraph is intended to provide a basis for establishing that some "action" taken or threatened by him was accompanied by the requisite intent to coerce W.M. Loud to make a proscribed agreement or the proscribed variation. However, as explained at [80] above, the contract was that of the third respondent. Accordingly, any knowledge which Sheedy had in relation to it was acquired in his capacity as an employee or agent of the third respondent. More would therefore have to be shown to enable that knowledge to bear on the possession by Sheedy, in his personal capacity, of the requisite intent. 83 Similar considerations apply to Sheedy's alleged knowledge of work being performed for the third respondent by W.M. Loud at other sites (par 25), W.M. Loud's tendering practices (part 27), W.M. Loud's vulnerability if the contract and others like it were lost (par 33) and a meeting between representatives of W.M. Loud and Cummins and Spivey of the CFMEU (par 45(a)).

Paragraph 55 84 For the reasons explained at [66] above, this paragraph cannot be retained in the new version. The incorporation by reference of par 52 discussed at [78] to [80]above makes it additionally inappropriate to charge Sheedy for "action" taken or threatened by him in his personal capacity.

Paragraphs 56, 57 and 58 85 These paragraphs allege that "the conduct of Sheedy pleaded in paragraphs 44, 46, 48 and 52" was taken or alternatively "the conduct of Sheedy pleaded in paragraphs 46 and 48" was threatened with intent to coerce W.M. Loud to make one or other of the proscribed agreements or the proscribed variation. I have already indicated at [55]-[57] above why pars 44, 46 and 48(a) and (b) are inapt to establish a relevant "action" or threat. The same considerations apply to resort to those paragraphs in an attempt to fix Sheedy with personal liability for alleged "conduct." If the allegation in par 48(c) that "the Third Respondent through Sheedy advised W.M. Loud that … the Third Respondent would be cancelling the contract and terminating future work" is to be relied on as establishing a threat made by Sheedy personally, further facts will have to be pleaded. That is so because the actions threatened are clearly those of the third respondent and the natural inference is that the threats were made, as the prefatory words of the paragraph suggest, by the third respondent "through Sheedy." 86 I have already indicated at [78]-[80] above why par 52 is deficient as a foundation from which to erect a personal liability of Sheedy for any identified "action" or threat.

Paragraph 59 87 This paragraph alleges: 'The conduct of Sheedy pleaded in paragraphs 44, 46, 48 and 52 above:

(a) was unlawful, alternatively, illegitimate and/or unconscionable; and

(b) was intended to negate W.M. Loud's choice as to the making of a certified agreement with the CFMEU.

There was no valid or lawful basis for purporting to cancel or alternatively for cancelling the contract.'

88 I have already indicated at [55], [57] and [59] above why pars 44, 46 and 48(a) and (b) do not establish a relevant "action" or threat. The same applies to par 52; see [78] above. The incorporation of those defective paragraphs by reference in par 59 and the general description of the matters attributed to Sheedy as "conduct" cannot cure the deficiencies which I have earlier identified. 89 It seems that par 59 has been framed to take account of the following observation of Merkel J in Seven Network v CEPU (supra), at 389 [41] and [43]: '41 The above cases establish that there must be two elements to prove "intent to coerce" under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Second, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable. The requirement that the pressure exerted be unlawful, illegitimate or unconscionable must be considered in the context of the scheme of the Act and of the fact that, subject to the immunity in respect of protected industrial action under s 170MT of the Act, many forms of industrial action are unlawful: see Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637.

43 It follows from the foregoing discussion that Seven Network must establish that:

(a) the respondents' threats of industrial action were made with intent to negate Seven Network's choice by the exertion of pressure that was, in the circumstances, unlawful, illegitimate or unconscionable; and

(b) the respondents had actual knowledge of the circumstances that made their conduct coercive in the sense discussed in (a) above.'

I have already remarked, at [78] above that it is undesirable to use the convention "and/or" in a pleading like the present. I am by no means sure that the word "illegitimate" adds anything to "unlawful" in this context. Merkel J seems to have derived "illegitimate" from the analysis of Gyles J in Finance Sector Union v Commonwealth Bank (2000) 106 FCR 16 at 24 from where it can be traced through Schanka v Employment National (Administration) Pty Ltd (2000) 97 FCR 186 to the statement of McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 46 that: 'Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.' See also Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers' Union (2000) 106 FCR 148, where Finkelstein J remarked, at 153 [19]; '… … Pressure will be illegitimate if it involves unlawful action (eg breach of contract or commission of a tort) or the threat of unlawful action. However, as the cases show, there may be duress even if the action, or threatened action, is lawful. … …' 90 Those authorities suggest that "illegitimate" is largely, if not entirely, synonymous with "unlawful" but it may extend to conduct which, although not unlawful, is "unconscionable". However, whatever ultimately be held to be the reach of "illegitimate", it is necessary, I consider, for the applicant to specify separately each action or threat said to be "unlawful", each action or threat said further or alternatively to be "illegitimate" and each action or threat said further or alternatively to be "unconscionable." Particulars should then be given of the acts, circumstances and things said to constitute each unlawfulness, illegitimacy or unconscionability as the case may be. The particulars subjoined to the present par 59 go only to unlawfulness and are essentially circular. If it is to be alleged that the cancellation of the contract was unlawful as a breach of the contract, the particulars should say so with reference to the relevant provisions of the contract. As already explained, that form of unlawfulness could only be alleged against the third respondent as the only other party to the contract with W.M. Loud. However, if the allegation of unlawful action by Sheedy personally is to be persisted in, the relevant particulars should disclose matters amounting to his having procured, or threatened to procure, a breach of the contract by the third respondent.

Paragraph 60 91 This paragraph alleges: 'Further, by reason of the matters pleaded in paragraphs 22, 25, 27, 30, 44, 45, 46, 48, 49, 50, 52 and 54 above, Sheedy had actual knowledge of the circumstances that make the action and conduct coercive for the purposes of s 170NC of the Act.' This paragraph corresponds with par 62 directed to the third respondent which is discussed at [72] above. As well as requiring correction in the manner there indicated, par 60 is embarrassing because it imputes to Sheedy "actual knowledge of the circumstances that make the action and conduct coercive" (emphasis added) without indicating what matters constitute "action" and what are "conduct". Secondly, it attributes to Sheedy personally, without particulars, knowledge of matters pleaded in pars 25, 27, 45(a) and (b) and 50 in which he is not said to have been involved. Moreover, par 60 is largely repetitive of allegations already made in par 54, discussed at [65], [82] and [83] above.

Paragraph 64 92 This paragraph corresponds with par 63 directed to encapsulating the charge against the third respondent of a breach of s 170NC(1). If the applicant is to persevere in seeking to fix Sheedy with personal liability for a breach of the same sub-section, and it is thought necessary to retain a culminating paragraph like par 64, it will have to be amended in the way described at [73] above.

Conclusion 93 It will be apparent from the foregoing reasons, which may have been excessively elaborate, that the applicant cannot have leave to file and serve the proposed further amended application and the new statement of claim in their present form. However, I shall grant leave to the applicant to file and serve within 28 days a further amended application and the new version of the statement of claim conforming generally with these reasons. There should be a further 28 days for the filing and service by each respondent of a defence to the new statement of claim. I shall reserve liberty to apply, which can be exercised within the last mentioned 28 days if any respondent considers that, even in the new version, the statement of claim is still so deficient that he or it should not be required to plead to it.

I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Counsel for the Applicant: Mr H Dixon SC with Mr T Jacobs

Solicitor for the Applicant: Blake Dawson Waldron

Counsel for the First and Second Respondents: Mr R Wainwright

Solicitor for the First and Second Respondents: Jesse Madison, Legal Officer, Construction, Forestry, Mining and Energy Union

Counsel for the Third and Fourth Respondents: Mr S Wood

Solicitor for the Third and Fourth Respondents: Deacons

Date of Hearing: 3 December 2004

Date of Judgment: 10 June 2005