McKellar v Container Terminal Management Services Limited

McKellar v Container Terminal Management Services Limited [1999] FCA 1101 PRACTICE AND PROCEDURE - pleadings - application for summary dismissal of proceeding pursuant to Federal Court Rules, O 20 r 2(a), (b) and (c) - whether amended statement of claim discloses reasonable cause of action - whether proceeding frivolous or vexatious - whether proceeding abuse of process of Court. PRACTICE AND PROCEDURE - application to strike out amended statement of claim pursuant to Federal Court Rules, O 11 r 16 - whether amended statement of claim discloses reasonable cause of action - whether fails to plead material facts - whether pleading embarrassing - whether particulars inadequate. TRADE PRACTICES - Trade Practices Act 1974 (Cth) - s 51A, s 52, s 53B, s 75B - whether allegations appropriately pleaded - s 2A - whether Act applies to Minister where Act does not apply to Commonwealth - whether parties acting in concert with Minister can share in immunity. TORT - tort of conspiracy - whether "unlawful means conspiracy" appropriately pleaded - whether "conspiracy to injure" appropriately pleaded - whether "psychological injury" and "post traumatic stress" compensable - whether Commonwealth can be liable for tort of conspiracy - whether Minister "servant" of the Crown for purposes of vicarious liability. TORT - misfeasance in public office - elements of tort - whether Commonwealth can be vicariously liable for tort of misfeasance in public office committed by Minister of the Crown. Trade Practices Act 1974 (Cth), ss 2A, 51A, 52, 53B, 75B, 82, 87 Workplace Relations Act 1996 (Cth) ss 298K, 298L Federal Court Rules, O 11 r 16, O 20 r 2(1)(a), O 20 r 2(1)(b), O 20 r 2(1)(c) Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 77 FCR 456 referred to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 77 FCR 478 referred to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643 referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 applied General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-9, 130 applied Webster v Lampard (1993) 177 CLR 598 at 602 applied Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368 at 435-6 referred to Cubillo v Commonwealth of Australia (1999) 163 ALR 395 at 415-6 applied Packer v Meagher (1984) 3 NSWLR 486 referred to Gallo v Dawson (1988) 82 ALR 401 referred to Yeldham v Rajski (1989) 18 NSWLR 48 referred to Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511 referred to Munnings v Australian Government Solicitor (1994) 118 ALR 385 referred to Dare v Pulham (1982) 148 CLR 658 at 664 referred to Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR ¶41-591 at 44,151 ff applied Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114-5 referred to H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246-7 referred to Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd [1999] FCA 142 at par 7 referred to Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458 at 462-3 referred to Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 222 applied Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Limited (1998) ATPR ¶41-633 at 40,977 referred to HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 referred to State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR ¶41-691 at 42,827-42,829 referred to Bartlett v Swan Television and Radio Broadcasters Pty Ltd (1995) ATPR ¶41-434 at 40,889 referred to Wright v TNT Australia Pty Ltd (1988) 15 NSWLR 662 at 677 referred to Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 819 referred to Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 referred to Elliott v Seymour [1999] FCA 976 at pars 89, 90, 91, 94, 97, 100-2 applied Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 referred to R v ICR Haulage Limited [1944] 1 KB 551 at 559 referred to Lonrho Ltd v Shell Petroleum (No 2) [1982] AC 173 at 188 and 189 referred to Lonrho Plc v Fayed [1992] 1 AC 448 referred to Lonrho Plc v Fayed (No 5) [1993] 1 WLR 1489 at 1496, 1502-1504 and 1509 referred to Huntley v Thornton [1957] 1 WLR 321 at 350 referred to Williams v Hursey (1959) 103 CLR 30 referred to Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 referred to Latham v Singleton [1981] 2 NSWLR 843 referred to United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766 referred to Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 applied Beach Petroleum NL v Johnson (1991) 105 ALR 456 referred to Gerakiteys v The Queen (1984) 153 CLR 317 at 320 referred to Peters v R (1998) 192 CLR 493 at 520 referred to Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 150, 151-2 applied Galland v Mineral Underwriters Ltd [1977] WAR 116 at 119-20 applied Sorrell v Smith [1925] AC 700 at 716 referred to Trade Practices Commission v Allied Mills Industries Pty Ltd (1980) 32 ALR 570 at 579 applied R v Chow (1987) 11 NSWLR 561 at 570 referred to Limerick Steamship Co Ltd v The Commonwealth of Australia (1924) 24 SR(NSW) 214 at 250 referred to James v The Commonwealth (1939) 62 CLR 339 at 359-60 referred to Connor v Sankey [1976] 2 NSWLR 570 at 600 referred to Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 362 referred to Sue v Hill (1999) 163 ALR 648 at 671-4 referred to Baillieu v Australian Electoral Commission (1996) 63 FCR 210 at 225-6 applied Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 249 referred to Racz v Home Office [1994] 2 AC 45 at 50-4 referred to Enever v The King (1906) 3 CLR 969 referred to Field v Nott (1939) 62 CLR 660 referred to Konrad v Victoria Police [1999] FCA 988 referred to State Chamber of Commerce and Industry v Commonwealth (The Second Fringe Benefits Tax Case) (1987) 163 CLR 329 referred to Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 at 483-4 referred to Re Ling; Ex parte Ling v Commonwealth (1995) 58 FCR 129 at 132 referred to Town Investments Ltd v Department of the Environment [1978] AC 359 at 383, 393 and 398 referred to Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584 referred to Credit Lyonnais Bank Nederland NV (now Generale Bank Nederland NV) v Export Credit Guarantee Department [1998] 1 Lloyds Rep 19 at 36-7, 41-2 referred to New South Wales v Bardolph (1934) 52 CLR 455 at 518-9 referred to Breavington v Godleman (1988) 169 CLR 41 at 68-9 R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827 at 844 referred to Midland Bank Trust Co Ltd v Green (No 3) [1982] 1 Ch 529 at 541 distinguished Nixon v Fitzgerald 457 US 731 (1982) referred to Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 328-9, 345 and 347-8 referred to SITA Qld Pty Ltd v Queensland (1999) 164 ALR 18 at 35 referred to Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 167 at pars 11, 14 and 16 referred to Woodlands v Permanent Trustee Company (1996) 68 FCR 213 at 230, 231 applied Thomson Publications (Australia) Pty Ltd v Trade Practices Commission (1979) 40 FLR 257 at 275 referred to Wirral Estates Limited v Shaw [1932] 2 KB 247 referred to New South Wales Bar Association v Forbes Macfie Hansen Pty Ltd (1988) 18 FCR 378 at 381 referred to Turner v The Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 at 97 applied

The principles governing summary dismissal 12 It is clearly established that the jurisdiction of the Court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked. 13 In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Dixon J (as he then was) stated at 91: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." 14 In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Barwick CJ cited that passage with approval at 129-30, and stated earlier at 128-9: "The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance"." 15 Barwick CJ continued at 130: "… in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 16 The remarks of Dixon J in Dey v Victorian Railways Commissioners were also cited with approval by Mason CJ, Deane and Dawson JJ in Webster v Lampard (1993) 177 CLR 598 where their Honours said at 602: "The power to order summary judgment must be exercised with "exceptional caution" … and "should never be exercised unless it is clear that there is no real question to be tried"." 17 The same strict approach has been taken in the United Kingdom. In Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368 Lord Templeman stated at 435-6: "My Lords, if an application to strike out involves a prolonged and serious argument the judge should, as a general rule, decline to proceed with the argument unless he not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial or will substantially reduce the burden of preparing for trial or the burden of the trial itself." 18 Other United Kingdom authorities are canvassed by O'Loughlin J in Cubillo v Commonwealth of Australia (1999) 163 ALR 395 at 415-6. They confirm that a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court. Note however the proposed extension of summary jurisdiction in the United Kingdom - CPR, Part 24 of the Civil Procedure Rules. That proposed extension, if implemented, would make it easier to satisfy the grounds justifying summary jurisdiction - see Derek O'Brien, 'The New Summary Judgment: Raising the Threshold of Admission' (1998) 18 Civil Justice Quarterly 132 at 134. 19 There are many reported cases which illustrate the principles set out above. That is not to say that there are not also many reported cases in which, conformably with those principles, particular proceedings have been stayed or dismissed. See for example Packer v Meagher (1984) 3 NSWLR 486; Gallo v Dawson (1988) 82 ALR 401; Yeldham v Rajski (1989) 18 NSWLR 48; Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511; and Munnings v Australian Government Solicitor (1994) 118 ALR 385. These are illustrations of the principle which is embodied in O 20 r 2(1) of the Rules that the Court may order that a proceeding be stayed or dismissed generally where it appears to the Court that the application discloses no cause of action or that the proceeding is frivolous or vexatious, or is an abuse of the process of the Court. They are also illustrations of the operation of O 11 r 16 which deals with pleadings and which appears to be slightly wider than O 20 r 2, since it encompasses also "embarrassment" as a basis upon which a pleading may be struck out. Pleadings in Federal Court proceedings 20 The principles which govern pleadings in this Court are set out in O 11 of the Rules. They include, inter alia: "1. Where a pleading alleges or otherwise deals with several matters - (a) the pleading shall be divided into paragraphs; (b) each matter shall, so far as convenient, be put in a separate paragraph; and (c) the paragraphs shall be numbered consecutively. … 2. Subject to these Rules - (a) a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved; … 3. A pleading shall be as brief as the nature of the case admits. 4. Where any document or spoken words are referred to in a pleading, it is permissible to state the effect of the document or spoken words without setting out the precise terms thereof. … 8. (1) A party shall not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with a previous current pleading of his. (2) Sub-rule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative. 9. A party may by his pleading raise any point of law. … 16. Where a pleading - (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." 21 The purpose of pleadings is to define the issues and thereby to inform the parties in advance of the case they have to meet so as to enable them to take the steps necessary to deal with it: Dare v Pulham (1982) 148 CLR 658 at 664. 22 In Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR ¶41-591 Goldberg J observed at 44,151ff: "Pleadings occupy an important role in present day litigation notwithstanding the flexibility of case management principles. They are not to be treated as pedantry or mere formalism: Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, 241. In Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Mason CJ and Gaudron J said at 286: "The function of pleadings is to state with sufficient clarity the case that must be met: … In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness." It has been established for many years that the most fundamental rule of pleading is the rule found in O 11 r 2 … It is also important to recognise and accept that there is a clear distinction between pleadings and particulars. In Bruce v Odhams Press Limited [[1936] 1 KB 697] Scott J in the Court of Appeal said at 711-713: "…but it is beyond question that there is a radical distinction (between a statement of material facts and particulars) and nonetheless so that in cases near the dividing line there is a penumbra where the two may and often do overlap, just as between night and day there is a zone of doubt which we call dusk … The cardinal provision in r. 4 is that the statement of claim must state the material facts. The word "material" means necessary for the purpose of formulating a complete cause of action; and if any one "material" fact is omitted; the statement of claim is bad; it is "demurrable" in the old phraseology, and in the new is liable to be "struck out" … The function of "particulars" under r. 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a "material fact" and a "particular" piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping." … These principles were restated more recently by Burchett J in Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR ¶41-522. At 42,679 his Honour said:

23 A number of authorities support the proposition that a statement of claim must contain material facts, being the facts necessary for the purpose of formulating a complete cause of action, and that it is not sufficient simply to plead a conclusion drawn from unstated facts: see for example Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 at 114-5 per Fisher J; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246-7 per Northrop J; Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd [1999] FCA 142 at par 7 per Kenny J. A statement of claim which simply repeats the language of a provision of the Act, and then baldly asserts a contravention of that provision, without more, will be struck out. 24 In Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458 RD Nicholson J stated at 462-3: "The motion for strike out is brought pursuant to O 20 r 2 and/or O 11 r 16 of the Federal Court Rules. The grounds relied upon are that the pleadings referred to disclose no reasonable cause of action, are scandalous, frivolous and/or vexatious and may prejudice, embarrass or delay the fair trial of the action. A cause of action is every allegation of fact which the plaintiff must prove to establish the right to the relief claimed … A "reasonable cause of action" means a cause of action with some chance of success, when considering the allegations of fact contained in the challenged pleading alone. The terms "vexatious" and "frivolous" have been used interchangeably … "Frivolous" has been held to be apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed … "Vexatious" has been held to be apt to describe an action which is a sham and which cannot possibly succeed …" 25 For a statement of claim to disclose a cause of action it must set out the material facts which give rise to the cause of action. A cause of action for misleading and deceptive conduct is not established unless the statement of claim sets out the circumstances which gave the representation its deceptive and misleading character at the time it was made. Mere non-fulfilment of a statement as to a future matter does not establish that the statement was relevantly misleading and deceptive: Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd (supra). 26 When a claim is made under s 82 of the Act, the gist of the cause of action being damage, the statement of claim must allege the damage suffered, and that it was suffered by reason of the contravention of the Act. Material facts must be pleaded which show the required causal link between any alleged contravention of the Act, and any damage to the applicant. A deficient pleading, namely one that does not plead relevant material facts, cannot be saved by particulars. It is not sufficient simply to allege loss and damage as a result of alleged contraventions of the Act; it is necessary to identify a causal connection between the impugned conduct and such loss as is said to have been suffered by the applicants: Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 222 per French J, cited with approval by Burchett J in Multigroup Distribution Services Pty Ltd (supra) and by Goldberg J in Mitanis (supra). 27 In Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Limited (1998) ATPR ¶41-633 Foster J dealt with an application to strike out certain paragraphs of a further amended statement of claim which purported to plead a cause of action under ss 51A, 52 and 53 of the Act. His Honour stated at 40,977: "It necessarily follows that when [s 52] is sought to be used in litigation as the foundation of a cause of action or claim for some specific form of relief, it is imperative that the factual basis upon which the section is alleged to be brought into play must be stated with appropriate clarity in a statement of claim. This is, of course, a fundamental principle of pleading." 28 His Honour continued at 40,978: "Experience is showing that the Court must be astute in the prevention of this type of situation by requiring, in the early stages of litigation, that claims based on section 52 be pleaded with appropriate precision and in a manner that enables the factual issues for trial to emerge with clarity. … It must also be remembered that it is not the function of particulars, … to fill in the gaps in the pleadings and that particulars cannot be regarded as statements of material facts which can cure defects in a statement of claim … It may also be noted that it is a principle of pleading that a respondent does not plead to the particulars … If a statement of claim puts a respondent in this position he can, in my opinion, properly claim that the relevant parts of that pleading are embarrassing. In this regard it will be remembered that O 11 r 16 of the Federal Court Rules enables the striking out by the Court of the whole or any part of pleading that "has a tendency to cause prejudice, embarrassment or delay in the proceeding"." 29 It has been said that some revision of the strictness with which the rules governing pleadings should be approached may be justified in the light of the ever increasing complexity of modern commercial litigation. In HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822, for example, at par 59 Einfeld J observed that: "… technical defects in a pleading which cause no confusion and do not raise issues of substantive principle are dealt with by particulars or amendment, not motions for summary dismissal." 30 I note also the views expressed by Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR ¶41-691 at 42,827-42,829. I note in particular his Honour's comments at 42,827: "Authority acknowledges the blurring, in recent times, of the distinction between pleadings and particulars: see,. eg, Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466, where von Doussa J referred to the tendency now "towards narrative pleading as there is a growing concern that pleadings according to traditional rules do not adequately make known to the court and to the parties the nature of the opposing cases in complex matters." His Honour also commented that: "[t]echnical objections raised to pleadings on the ground of alleged want of form will be received with less enthusiasm today than in times past." Notwithstanding 0 11 r2(a), a respondent does not have an absolute right in every case to insist upon the applicant pleading in the statement of claim every material fact necessary to show the existence of a complete cause of action." 31 His Honour continued at pars 42,828-9: "While, prima facie, the Court's rules with respect to pleadings must be complied with, compliance is enforced by the invocation of the Court's discretion to strike out non-conforming pleadings. Consistently with the comments in Beach Petroleum, judges of this Court have dealt with challenges to the adequacy of pleadings in a more flexible way than would be required by a strict application of those rules. This is an approach that reflects the discretionary nature of the Court's power to control pleadings and the objective of the Court's case management system, provided for by O 10 r 1, of achieving efficient and economical use of the resources of all the parties, as well as those of the Court. Australian Competition and Consumer Commission v Golden West Network Pty Ltd (Federal Court of Australia, 19 August 1997, unreported) provides an example. There Lockhart J said: "It is important that I say something about motions to strike out statements of claim in the conduct of modern litigation. Today, courts are playing an increasingly active role in case management. Motions to strike out pleadings are matters of practice and procedure. In its role of case management, courts devise various procedures to overcome deficiencies in pleadings other than by simply ordering that the offending paragraphs be struck out. Sometimes it is appropriate to strike them out, sometimes not. On some occasions it is better for the court to direct the applicant, whose statement of claim is under challenge, to furnish particulars or to file and serve affidavits to show that there really are facts which can be proved and which, if proved, would support the general statements made in the statement of claim. This is not, of course, intended to be a substitute for a defective pleading in every case because, as is well known, pleadings must assert basic or constitutive facts, not the evidence by which they are to be proved. But case management is a sensible and flexible thing. It must not be unduly circumscribed." When it is said that a pleading is so bad that it should be struck out, the outcome, in my opinion, is now to be governed not just by whether the pleading fails to comply with one or other of the rules of pleading. The Court will take into account whether the defects are of substance, ie, whether, notwithstanding any deficiencies in the pleading, the fundamental function of pleading is still served. The Court will also take into account how these objectives can best be achieved, where a pleading does not do that: striking out may be appropriate in some cases while an order for particulars or directions under O 10 r 1(2), including directions of the kind referred to by Lockhart J, may be appropriate in others. In any event, that a pleading alleges conclusions does not mean it is necessarily bad. The requirement of O 11 r 2 to plead the material facts, is subject to the established qualification to rules in this form that allows, in appropriate cases, pleading at a level of generality which excuses the failure to plead every fact material to the cause of action sued upon: Charlie Carter Pty Ltd v SDAEA (WA) (1987) ATPR (Digest) ¶46-021; (1987) 13 FCR 413 at 417. In Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (Federal Court of Australia, 3 September 1991, unreported) French J, in dealing with a complaint that a statement of claim alleging contraventions of s 45 of the Act pleaded conclusions in terms of the section, rather than the material facts underlying them, said: "I do not accept that the pleading of something which can be described as a conclusion cannot also be a pleading of a material fact. The real issue in a case where such an objection is raised is whether the facts are pleaded at too great a level of generality. In my opinion, the level of generality of the statement of claim in this case is too great for Rothmans to know with any precision what case it has to meet." The modern approach to litigation in this Court is not to strike out or order further particulars of a conclusionary pleading, if it appears that that is unnecessary in the circumstances of the particular case to achieve the object of pleadings. See also Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR ¶41-522 at 42,679. It is, in my opinion, a legitimate and necessary exercise of the controlling discretion the Court has over pleadings to utilise that power to ensure that a party is not required to incur the expense of providing masses of information in its pleadings that can be seen to be unnecessary for the proper disposition of the case, even though the prima facie obligation of a party to plead all material facts necessary to make out its cause of action could be said to require that. This is not to suggest that clarity in pleading is not important. The need to focus on pleadings being used to identify the matters really in issue is particularly pressing in a complex case. But the rules of pleading do not now provide the only means for achieving this. And above all, those rules are not now intended to be an arsenal for litigation by attrition." 32 The sustained and vigorous criticisms which have been levelled by the respondents at the applicants' amended statement of claim should be considered in the light of those observations. It is plain that some of the defects identified by these criticisms are capable of being rectified by further amendments being made to the pleading. Others do not fall into that category. If made good, those criticisms would lead to the particular claim being struck out, or dismissed in its entirety. 33 What follows is by no means an exhaustive restatement of all of the attacks which have been mounted against the applicants' pleading. It represents a fair summary of some of the principal objections taken to the amended statement of claim. A number of the points discussed below may be regarded as representative of other criticisms not specifically addressed in this judgment. The background to the motions before the Court 34 When the applicants instituted this proceeding on 13 October 1998, the statement of claim which was filed with the application was confined essentially to alleging, against a total of eleven respondents, various breaches of the Act. There were also some additional claims in conspiracy, deceit and negligence. These were plainly pleaded as subsidiary causes of action. The original statement of claim ran to twenty pages. 35 It was foreshadowed at an early stage by a number of the respondents named in the application that steps would be taken to have that application, and the accompanying statement of claim, dismissed, or at least to have the statement of claim struck out. The applicants responded by indicating that they proposed, in any event, to file an amended statement of claim, and that any application of the type foreshadowed by the respondents should await the filing of the amended pleading. That was plainly a sensible suggestion. It was adopted with the consent of all parties. 36 On 24 December 1998 the applicants' amended statement of claim was filed. That document runs to ninety pages. It contains literally hundreds of separate paragraphs, some numbered in a coherent manner, others numbered in a manner which is all but incomprehensible, and many merely asterisked. The number of respondents has increased from the original eleven (still the number of respondents to the application) to thirty-three.

The section 51A claims 74 There then follow a series of claims which are described as having been brought by the first applicant pursuant to s 51A of the Act against the first to fourth respondents. Section 51A is intended to facilitate proof in misrepresentation cases involving representations as to future matters. It deems representations as to future matters to be misleading for the purposes of, inter alia, ss 52 and 53B, unless the corporation making the representation has reasonable grounds for doing so. Sub-section 51A(2) reverses the onus of proving that reasonable grounds existed for making the representation by casting that onus upon the corporation. The manner in which s 51A of the Act operates, and should be pleaded, is dealt with by Drummond J in Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 819. 75 The amended statement of claim pleads, at p 22, that the first and second respondents, through their servants or agents the third and fourth respondents, made various representations concerning the applicants' future employment with Fynwest Pty Ltd. It seeks to rely upon "the oral representations made by Wells in contravention of Section 13B [sic]" as being in contravention of s 51A. 76 There are, once again, serious difficulties with this pleading. Section 51A is an interpretation provision which serves an auxiliary function only. It cannot, itself, give rise to a contravention of the Act. Moreover, the allegations made under s 53B do not all arise out of representations as to future matters. They cannot, therefore, simply be transposed into s 51A claims in the manner adopted by the applicants. 77 To assert baldly, as the applicants do, that "the representations were untrue" does not significantly assist in understanding the applicants' case. The mere fact that representations as to future conduct or events do not come to pass does not make those representations misleading or deceptive: Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82; Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd (supra) per Kenny J. 78 The pleading which complains of irregularities associated with the failure to date and lodge a copy of the Australian Workplace Agreement is difficult to follow. The contention that Fynwest Pty Ltd was wholly dependent for its funding by entities within the Lang group is scarcely more informative.

The conspiracy claims 130 There then follow a series of claims of conspiracy, the precise number of which it is difficult to discern, made by both applicants against various combinations of respondents. The tort of conspiracy, through the added element of combination, may make unlawful an act which, if done by one person alone, would not be actionable. That tort takes two forms according to whether or not unlawful means are used: Elliott v Seymour [1999] FCA 976 at par 89 per Ryan J.

Conspiracy to injure 131 It was firmly established in Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 that if there is a combination of persons whose purpose is to cause damage to the plaintiff, that purpose may render unlawful acts which would otherwise be lawful. Their Lordships made it clear that if the predominant purpose of a combination is to injure another in his trade or business, or in his other legitimate interests, then, if damage results, the tort of conspiracy is made good. The object or purpose of the combination must be to cause damage to the plaintiff. The test for this form of conspiracy is not what the defendants contemplated as a likely or even inevitable consequence of their conduct. It is rather "what is in truth the object in the minds of the combiners when they acted as they did?" - see [1942] AC 435 at 445 per Viscount Simon LC. Malice in the sense of spite or ill will is not essential for liability. What is required is that the alleged conspirators should have acted in order that (not with the result that, even the foreseeable result) the plaintiff should suffer damage. Under this form of conspiracy, if they did not act in order that the plaintiff should suffer damage they are not liable, however inevitable the plaintiff's damage may have been. 132 Cases of mixed motive are common enough in individuals. It is obvious that a combination of persons may have more than one illegitimate purpose. Where this is so, the question which must be asked is, what was the real or predominant purpose of the combination? 133 Another way of expressing the central requirement of this form of conspiracy to injure is to say that the law is concerned with the distinction between legitimate and illegitimate purposes. The former will legalise the infliction of inevitable harm to the plaintiff's business. Self-interest is capable of justifying the deliberate doing of lawful acts which inflict harm. Acts done to promote the defendants' trade or business interests are clearly justified, and negate liability for this form of the tort. 134 An overt act causing damage is an essential element of this form of liability in tort. The plaintiff is required to prove some actual pecuniary loss: Lonrho v Shell Petroleum (No 2) [1982] AC 173 at 189 per Lord Diplock. Whether that loss extends to psychological injury, or "post traumatic stress", as pleaded, is another matter.

"Unlawful means" conspiracy 135 After a period of uncertainty, the House of Lords in Lonrho Plc v Fayed [1992] 1 AC 448 reaffirmed that this form of the tort, unlike the Crofter variety, does not require a predominant purpose to injury the plaintiff. However, the tort still requires an intention to injure: it is not enough that the defendants combined to do an unlawful act which has the effect of causing damage to the plaintiff. In Rogers' Winfield and Jolowicz On Tort, 15th ed (1998) it is suggested that the precise nature of the mental element required for this form of the tort remains somewhat elusive (p 645): "…not least because (1) the cases tend to be decided on assumed facts or on applications to strike out where the plaintiff has merely to show that it is arguable that there is a cause of action and (2) the courts speak of "intention", a legally complex and protean concept, as if it were something with a fixed and self evident meaning." 136 The author continues at 646: "The true test of intention in this context is probably that stated by Lord Denning MR in the Court of Appeal and quoted with apparent approval in Lonrho v Fayed. "I would suggest that a conspiracy to do an unlawful act - where there is no intention to injure the plaintiff and it is not aimed or directed at him - is not actionable … But if there is an intent to injure him then it is actionable. The intent to injure may not be the predominant motive. It may be mixed with other motives … It is sufficient if the conspiracy is aimed or directed at the plaintiff, and it can reasonably be foreseen that it may injure him, and does in fact injure him."" (footnotes omitted) 137 The requirement that the conspiracy be "aimed at" the plaintiff, though perhaps difficult to apply in some cases, is sufficient to keep liability within reasonable grounds. It prevents claims by those who suffer incidental, though foreseeable, loss as a result of the commission of what is sometimes described as an "undirected" crime. 138 Since the mental element in "unlawful means" conspiracy is easier to establish than that in the "unlawful purpose" or Crofter type of conspiracy, that form or type of conspiracy may be viewed as preferable from the applicants' point of view. It is important to determine what amounts to "unlawful means". There is no doubt that acts which are themselves actionable as torts (for example, deceit) constitute unlawful means. 139 Some modern commentators, including Fleming, and Winfield and Jolowicz, describe conspiracy by unlawful means as being of limited practical importance in the modern law. In Elliott v Seymour (supra) at par 94 Ryan J appeared to share at least some of the doubts of these commentators as to the modern utility of this tort. It seems that these doubts stem from the range of alternative torts which can be invoked to cover the intentional infliction of economic loss and the fact that some of these torts may be easier to prove than this form of conspiracy. 140 Both the unlawful means and the unlawful purpose forms of conspiracy require at least one overt act causing actual pecuniary loss to be proved. Once such loss has been proved, damages are said to be at large, but not to the extent, for example, of allowing damages for loss of reputation. 141 It is problematic as to whether the claims made on behalf of the applicants for "psychological injury" and "post traumatic stress" can be maintained in relation to the tort of conspiracy. A plaintiff in a civil action for conspiracy must prove actual pecuniary loss. If he does so, the damages are at large, though they do not, it would seem, extend to damage to reputation and injury to feelings. Such damage is compensable only in an action for defamation: Lonrho Plc v Fayed (No 5) [1993] 1 WLR 1489 at 1496, 1502-4 and 1509 (Court of Appeal). 142 It is at least arguable that physical injury which is parasitic upon pecuniary loss, including "psychological injury" and "post traumatic stress" is compensable if conspiracy is proved, and pecuniary loss results: Huntley v Thornton [1957] 1 WLR 321 at 350 per Harman J. See also NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (1993) at 46-7. I would not be prepared to dismiss the applicants' claim for this head of damages as disclosing no reasonable cause of action. 143 Assuming for present purposes that counsel for the applicants is correct in submitting that the "unlawful means" conspiracy described by the House of Lords in Lonrho v Fayed (supra) is available as a cause of action, and that it does not require an allegation that the sole or predominant purpose of the alleged conspirators was to injure the applicants, (a proposition which finds considerable support: see Williams v Hursey (1959) 103 CLR 30; Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; Latham v Singleton [1981] 2 NSWLR 843; and United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766), there is still a serious problem with the manner in which the various conspiracies alleged have been pleaded in the amended statement of claim. These conspiracies seem to shift from one form to the other. They sometimes plead the conspiracy to injure in the Crofter sense. There the real or predominant purpose of the combination must be pleaded as being to injure the applicants. On occasion, the alleged conspiracies seem to switch to the "unlawful means" form, where a pleading of an intent to injure (in the expanded sense discussed above) is sufficient. The difficulty is that one is never quite certain, at any given stage, which of these forms of conspiracy is being alleged. 144 In Elliott v Seymour (supra) Ryan J referred at par 89 to his earlier decision in the same proceedings in which his Honour had noted the "dichotomy established by a long line of authority between a conspiracy to perform an unlawful act or use unlawful means on the one hand and a conspiracy to injure by the use of lawful means on the other". His Honour went on to assume that the conspiracy alleged by Elliott was of the "unlawful means" kind. He continued: "If that is so, it remains necessary to plead the agreement or combination and to establish that the occasion had arisen for resorting to or threatening to resort to unlawful means. Otherwise, there would be, as Dixon J pointed out in McKernan v Fraser (1931) 46 CLR 343 at 361: "… at most … a combination for a purpose to be effected by a lawful means or, if necessary, by unlawful means. The occasion did not arise for resorting to or threatening to resort to unlawful means, and no circumstance occurred in which such means could have been employed against the respondents." 145 His Honour then referred at par 90 to Lonrho Ltd v Shell Petroleum (No 2) (supra) at 188 in which Lord Diplock said: "Regarded as a civil tort, however, conspiracy is a highly anomalous cause of action. The gist of the cause of action is damage to the plaintiff; so long as it remains unexecuted the agreement, which alone constitutes the crime of conspiracy, causes no damage; it is only acts done in execution of the agreement that are capable of doing that. So the tort, unlike the crime, consists not of agreement but of concerted action taken pursuant to agreement." 146 Ryan J went on to state at par 91: "I would only allow an allegation of conspiracy between the NCA and the DPP to be persisted in if the statement of claim were to specify with more particularity that it does at present when the agreement or combination was formed, what unlawful means were agreed to be employed and the facts or circumstances which made them unlawful." 147 His Honour continued at par 97: "As with the allegations of conspiracy between the NCA and the DPP, I am prepared to allow Elliott to continue to allege a conspiracy between the NCA and one or more of NZSC, NZSFO and SMETL only if the statement of claim specifies with sufficient particularity the time and making of each agreement between the alleged conspirators, the unlawful means agreed to be employed and the facts or circumstances which made them unlawful. The unlawful means relied on should be indicated in the body of the pleading alleging the conspiracy or in particulars specifically appended to that part of the pleading and should not be incorporated by reference to several other, otherwise unrelated, parts of the statement of claim. The pleading should also indicate what unlawful acts were performed pursuant to the alleged agreement and how those acts caused damage to Elliott." 148 In Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 RD Nicholson J referred with approval to the principles stated by von Doussa J in Beach Petroleum NL v Johnson (1991) 105 ALR 456 in which von Doussa J declined to strike out a number of paragraphs in a statement of claim, including one which pleaded that the respondents had acted dishonestly or fraudulently with intent to injure. Justice von Doussa considered that it was open to the applicants to contend that the conduct alleged, which could be viewed as an allegation of conspiracy, gave rise to a cause of action for unlawful interference with economic interests. 149 In dealing with the pleadings for unlawful conspiracy RD Nicholson J stated at par 416: "By par 14 of statement of claim the applicants allege that from about September 1997, the GPA, Mr Charlton and Mr Criddle wrongfully conspired to injure the applicants by unlawful means. This is particularised as: "The first, third and fourth respondents agreed to restructure the terms and conditions under which stevedoring employees generally would work at the Port, whereby the positions of the second applications would be altered to their prejudice and the second applicants would be injured in their employment and the first applicant would be injured by reducing its membership and its role." Paragraph 15 pleads the overt acts said to have been done in pursuance of the conspiracy from 16 October 1997. A large number of the overt acts pleaded are documents set out previously in the chronology and marked with an asterisk. Paragraph 16 pleads that the conspiracy "was entered into for the purpose of injuring the applicants". It was particularised in the following terms: "The purpose of the conspiracy was to achieve a position where stevedoring services were provided at the Port of Geraldton by persons in employment arrangements which involved a direct employer-employee relationship, which did not involve the MUA as a party so that the MUA had no, or no significant, role in protecting or enhancing the interests of its members. Its purpose was also to remove or hinder the ability of the Employees to negotiate collectively and to reduce their conditions of employment and diminish their employment security." The statement of claim further alleges that certain of the overt acts identified in par 17(a) were unlawful because they were done for reasons prohibited by s 298K of the WR Act; and that those alleged in par 17(c) were unlawful because they involved or constituted a contravention of s 71 of the Workplace Agreements Act (WA) and/or a contravention of s 170WG of the WR Act. The prohibited reasons pleaded were those in s 298L(a) and (h) of the WR Act. Paragraph 18 pleads that the applicants have suffered, and will suffer, injury, loss and damage by reason of the conspiracy. The MUA claims to have lost subscription income and suffered diminishment in its standing. The second applicants claim to have lost the opportunity to undertake stevedoring work as employees of the GPA and been forced to accept alternative employment on less favourable terms." 150 In dealing with the legal requirements of the tort of conspiracy his Honour stated at par 421: "To establish the tortious conspiracy pleaded by the applicants, it is for the applicants to prove the following matters. (a) each of the alleged three co-conspirators were [sic] a party to an agreement or combination with either of the other two co-conspirators. (b) the purpose of that agreement or combination was to injure the applicants by unlawful means. (c) the agreement or combination was carried into effect by the commission of agreed unlawful acts. (d) those unlawful acts caused damage to the applicants." 151 His Honour noted that for the applicants it was contended that it was well established that it is unnecessary for specific intent to be proved where a conspiracy involved unlawful acts or unlawful means. He continued at par 428: "The case was one of unlawful means conspiracy, the unlawful means consisting of a breach of section 44 of the Stevedoring Industry Act 1956 (Cth). The section prohibited a person from preventing, hindering or persuading another person by violence from working as a waterside worker." 152 His Honour stated at par 431: "The High Court had earlier considered the tort of conspiracy in McKernan v Fraser (1931) 46 CLR 343. Gavan Duffy CJ and Starke J accepted the authority of Sorrell v Smith [1925] AC 700 at 724 that "in an action against a set or persons in combination, a conspiracy to injure, followed by actual injury, will have a good cause for action, and motive or intent when the act itself is not illegal is of the essence of the conspiracy". See also the discussion by Dixon J at 359-362 and by Evatt J at 404-411. See also O'Brien v Dawson (1942) 66 CLR 18 at 26-27, and 41-42. In Cox v Journeaux (No 2) (1935) 52 CLR 712 at 717 Dixon J said: "To succeed in an action for conspiracy to injure where there is no illegality actual or threatened in the end in view or the means adopted by the defendants, a plaintiff must establish that, in combining, the defendants were animated by a desire to harm him." This statement admits that where the conspiracy is for an unlawful purpose that may be manifest "in the end in view or the means of adopted by the defendants". 153 His Honour continued at par 435: "The House of Lords in Lonrho PLC v Fayed [1992] 1 AC 448 held that in an action for conspiracy to injure by unlawful means it was unnecessary for the plaintiff to prove the intention on the part of the defendant to injure the plaintiff was the "predominant purpose" of his alleged unlawful action. It was sufficient to show the defendant had an intention to injure the plaintiff by the alleged unlawful act. That distinguished unlawful conspiracy from lawful conspiracy where it was necessary for the plaintiff to prove not merely that there was an intention to injure the plaintiff but also that injury to the plaintiff, rather than advancement of the defendant's own interests, was the predominant purpose of the conspiracy." 154 Finally his Honour observed at par 442: "It follows I do not accept the submissions for the applicants that as a matter of law flowing from what was said by Fullagar J in Williams v Hursey [(1959) 103 CLR 30] at 78 it is sufficient for them to establish that the acts of the conspirators necessarily involved injury to the applicant and that the applicant was a person reasonably within the contemplation of the conspirators as a person likely to suffer damage."

Conspiracy to commit a substantive wrong 195 It is not open to a party to plead as an alternative to a substantive cause of action already pleaded the tort of conspiracy to commit that substantive wrong: Galland v Mineral Underwriters Ltd [1977] WAR 116 at 119-20 per Burt CJ (with whom Wallace J agreed): "But the question, as it seems to me, which arises upon this appeal is whether a conspiracy to commit a tort when carried into effect is actionable both as an independent tort, ie the tort of conspiracy, as well as being actionable simply as a tort committed by a number of people acting together to that common end. In the instant case, if it be the fact that the appellant and the other defendants or some of them entered into an agreement to convert the respondent's money, and if it be the fact that the respondent's money was converted in the performance of that agreement and in the manner pleaded, has the appellant committed two actionable torts - conversion and conspiracy - or only one, and if one, which one? I know of no authority which directly supports my opinion, but it seems to me that the answer to that question should be that on those assumptions the appellant has committed one tort and that is the tort of conversion." 196 See also Sorrell v Smith [1925] AC 700 at 716 per Lord Dunedin, where his Lordship observed: "Passing, therefore, to the case of concerted action, the first and obvious observation is that if a combination of persons do what if done by one would be a tort, an averment of conspiracy so far as founding a civil action is mere surplusage." Conspiracy to contravene a provision of the Trade Practices Act 197 To the extent that the applicants seek to plead a tort of conspiracy to contravene the provisions of the Act at common law, outside the form of conspiracy expressly provided for in s 75B(1)(d) of the Act, and it seems that they do, such a pleading is not available. The Act covers the field in relation to contraventions thereof, including statutory conspiracy to contravene those provisions: Trade Practices Commission v Allied Mills Industries Pty Ltd (1980) 32 ALR 570 at 579 per Sheppard J; Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (supra) at 151-2 per Drummond J. See also R v Chow (1987) 11 NSWLR 561 at 570.

The liability of the Commonwealth for the tort of conspiracy 198 The Commonwealth of Australia, while generally liable in tort, (see Judiciary Act 1903 (Cth) ss 56 and 64 ("the Judiciary Act")) is not, in my view, civilly liable as an alleged participant in the tort of conspiracy. My conclusion in this regard finds some support in Limerick Steamship Co Ltd v The Commonwealth of Australia (1924) 24 SR(NSW) 214 at 250 per Ferguson J. Strictly speaking, his Honour did not finally resolve this issue. He expressed the view, however, that the Commonwealth would not be vicariously liable for the acts of an agent who had allegedly committed that tort since entering into a conspiracy was plainly outside the scope of that agent's employment. 199 In James v The Commonwealth (1939) 62 CLR 339 it was held that the Crown in right of the Commonwealth was liable for the torts of its servants acting under its de facto authority, and the fact that such authority was given pursuant to legislation which was later declared by the Privy Council to be constitutionally invalid did not affect these principles. Dixon J (as his Honour then was) observed at 359-60: "The liability of the Commonwealth for tort may, I think, be treated for purposes in hand as arising under Part IX of the Judiciary Act 1903-1937 … The immunity of the Crown from liability for tort, to which sec 56 seems to be directed, was in part founded, or explained, upon the principle that a servant of the Crown committing an actionable wrong became individually liable but could impose upon the Crown no vicarious responsibility. The maxim rex non potest peccare [the King can do no wrong] excluded the maxim respondeat superior [let the principal answer] … But it is important to see that, once there is found a de-facto authority from the Crown in right of the Commonwealth within the scope of which an alleged tort is committed, the doctrine of ultra vires is not used to produce the same immunity as formerly arose from the incompetence of an officer at common law to bind the Crown by his tortious acts." 200 There is no doubt that a Minister of the Crown may be liable as an individual for the tort of conspiracy, just as he may be prosecuted for the offence of conspiracy: Connor v Sankey [1976] 2 NSWLR 570 at 600. It does not follow that the Commonwealth itself, whether so designated, or whether described as the Crown in right of the Commonwealth, is similarly liable for that particular tort, whether vicariously or in a direct sense. 201 There might be circumstances, likely to be rare, where an employer would be vicariously liable for a conspiracy involving his servants provided the other requirements of that form of liability are met. There may also be a criminal conspiracy between a company and its directors whose knowledge and purpose may be imputed to the company: R v ICR Haulage Limited [1944] 1 KB 551 at 559. 202 However, in the case of governmental parties, as Dixon J observed in James (supra),there is now a considerable body of statute law which has a bearing upon their civil liability. Crown proceedings legislation, including ss 56 and 64 of the Judiciary Act 1903 (Cth) has, generally speaking, removed the protections against liability for tort which were accorded at common law to the Crown. These protections included immunity from both direct and vicarious liability in tort. 203 Section 64 of the Judiciary Act provides as follows: "In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject." 204 The general principle underlying s 64 of the Judiciary Act is to place the Crown in right of the Commonwealth (synonymous for these purposes with the Commonwealth of Australia: Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 362 per Dixon J; but see Sue v Hill (1999) 163 ALR 648 at 671-4 per Gleeson CJ, Gummow and Hayne JJ) "as nearly as possible" in the same position in terms of potential liability for tort as would be applicable in proceedings between subject and subject. 205 The expression "as nearly as possible" was considered by Sundberg J in Baillieu v Australian Electoral Commission (1996) 63 FCR 210 where his Honour observed (at 225-6): "Since Maguire v Simpson (1977) 139 CLR 362 it has been established that in every suit to which the Commonwealth is a party s 64 requires the rights of the parties to be ascertained, as nearly as possible, by the same rules of law, substantive and procedural, statutory or otherwise, as would apply if the Commonwealth were a subject instead of being the Crown. The Commonwealth acquires no special privilege except where it is not possible to give it the same rights and subject it to the same liabilities as an ordinary subject: see Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 264-5. In Asiatic Steam Navigation Co Ltd v Commonwealth (1956) 96 CLR 397 at 427, Kitto J rendered the expression 'as nearly as possible' as 'as completely as possible', and went on to say (at 428) that s 64 in effect requires the Court 'to put out of account any special position of the Crown, and so far as possible to decide all questions of right in the same way as they would have been decided if the Commonwealth … had been a subject'. In Evans Deakin at 264-265, Gibbs CJ, Mason, Wilson, Deane and Dawson JJ agreed that 'as completely as possible' was the natural meaning of 'as nearly as possible', and after quoting the passage I have just set out, said it was 'unnecessary to consider whether in some cases at least it would be right to consider the special position of the Crown', as the Commonwealth in that case 'was not performing a function peculiar to government'. In Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55 at 68, the Court said it was not necessary to consider whether, and if so to what extent, s 64 would be ineffective to apply the provisions of State laws in circumstances where their application would interfere with the discharge of 'an essentially governmental function such as the collection of taxes'. See also Maguire v Simpson at 393-395." Vicarious Liability of the Commonwealth for conspiracy 206 With respect to vicarious liability, the Commonwealth as an employer is open to claims of vicarious liability in relation to acts committed by a servant in the course of his employment. In Attorney-General for New South Wales v Perpetual Trustee Co Ltd (1952) 85 CLR 237 at 249 Dixon J stated: "… the Crown is liable for the tort of an officer committed within the scope of his duty, except in situations where the duty which he is attempting to fulfil is one cast upon him by law to be executed as an independent responsibility, so that the Crown is not acting through him." 207 The Commonwealth will be vicariously liable where the Crown employee was acting within the de facto authority of the Crown: James v Commonwealth (supra). In some cases it might also be considered that the Crown employee was impliedly authorised to commit the particular tortious act: Racz v Home Office [1994] 2 AC 45 at 50-4 per Lord Jauncey of Tullichettle. 208 The Commonwealth will not be vicariously liable if the law charges an employee with a discretion and responsibility in the execution of an independent legal duty. The principle is that a public servant who is exercising an "independent discretion" that is conferred upon him personally is not acting in the course of his employment with the Crown: Enever v The King (1906) 3 CLR 969; Field v Nott (1939) 62 CLR 660. There has been cogent criticism levelled at this "independent discretion" rule - see, for example, P Finn, "Claims Against Government Legislation" in Essays on Law and Government Vol 2 (1996) at 36-7. See also the decision of the Full Court of this Court in Konrad v Victoria Police [1999] FCA 988 in which Finkelstein J (with whom Ryan and North JJ were in substantial agreement) referred to 'much informed criticism' of the common law notion of 'employee' (at par 101). In Konrad the Court held that although at common law a police officer is not an employee, the nature of Pt VIA Div 3 of the Industrial Relations Act 1988 (Cth) (which deals with dismissal) was such that it should 'be given an interpretation that [would] advance its broad purposes' and that Victorian police officers fell within its purview. As the law presently stands, however, the 'independent discretion' rule represents a restriction upon the vicarious liability of the Commonwealth at common law for the torts of its servants. 209 A Minister of the Crown is not generally viewed in Australia as a servant of the Crown, but is regarded as holding office under the Crown. The concept of a public office is feudal in origin. Persons were appointed to such office under the prerogative, and were subject to little, if any, direction. The system was altered radically in the nineteenth century, and was replaced by a system of public administration in which almost all office holders became classified as employees of the Crown. Some public offices remain, however, and they include Ministers of the Crown. The same may be said of members of the judiciary. 210 In State Chamber of Commerce and Industry v Commonwealth (The Second Fringe Benefits Tax Case) (1987) 163 CLR 329, the High Court accepted that Members of Parliament hold office, and are not to be classed as employees of the Crown. In Canada, the United Kingdom and New Zealand this would not affect the potential vicarious liability of the Crown. In those countries legislation has been enacted regarding the vicarious liability of the Crown in tort for acts committed by Crown servants or agents, and the term "agent" is plainly wider than the term "servant": see Crown Liability Act, RSC 1985, c C-50; Crown Proceedings Act 1947 c 44 (UK) and Crown Proceedings Act 1950 (NZ). 211 The majority of the Canadian provinces have also enacted similar legislation. See generally PW Hogg, Liability of the Crown 2nd ed (1989) at 85. Each provincial Act, with the exception of those enacted in Quebec and British Columbia, provides that the Crown is vicariously liable in respect of torts committed by servants (or officers) and agents. The words "servant" and "officer", depending upon which of those words is used in the particular Act, are defined as including "a Minister of the Crown". A similar provision exists in New Zealand in which pursuant to s 2 of the Crown Proceedings Act the term "servant" is defined to include a "Minister of the Crown". It follows that the Crown's vicarious liability for the tortious acts of its Ministers is expressly provided for by statute in those jurisdictions. 212 Because a Minister is not viewed as an employee or servant of the Crown in this country it must be doubtful that the Commonwealth can be vicariously liable for a tort committed by him. In Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 a Full Court of this Court (Neaves, Ryan and Gummow JJ) considered the question whether the Commonwealth is liable for torts committed by a Minister of State in the conduct of his portfolio. The Court stated at 483-4: "[W]hilst Ministers of State are undoubtedly "officers of the Commonwealth" and amenable to injunction, prohibition and mandamus under s 75(v) of the Constitution, it by no means follows that they are correctly classified as servants for whose torts the Commonwealth is liable in the same way as an employer is vicariously liable for the torts of an employee. Ministers of State must be members of the Federal Executive Council; they are appointed to administer departments of State and shall not hold office for a longer period than three months unless elected to the Senate or the House of Representatives. Sections 62 and 64 of the Constitution so provide. The system of responsible government is thereby adopted by the Constitution: New South Wales v Commonwealth (1975) 135 CLR 337 at 364-365. In administering his portfolio, a Minister of State is not merely a member of the Federal Executive Council upon whose advice the Governor-General relies; he is the person through whom in matters within that portfolio the executive government of the Commonwealth acts: Radio Corporation Pty Ltd v Commonwealth (1938) 59 CLR 170 at 192. Accordingly, it is not self-evident that in respect of acts and omissions of a Minister in the conduct of his portfolio the tortious liability is that of the Minister as a servant for which the Commonwealth is vicariously liable." 213 The Court observed that these matters had been inadequately explored in submissions and, given the legal complexities of the argument, preferred to leave the question for another day. The only subsequent decision which relevantly refers to Unilan is Re Ling; Ex parte Ling v Commonwealth (1995) 58 FCR 129. One of the issues to be decided in that case concerned whether a bankrupt could have set up his claims for negligence and defamation against the Commonwealth as cross claims in earlier proceedings. Hill J stated at 132: "From the Bar table it was said that it was not until the decision of the Full Court of this Court in Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 that the possibility of suing the Commonwealth in tort became clear. Before that case, it was said, so to do would have been at the 'cutting edge' of the law. It is not clear to me that Unilan was in this respect a watershed of legal development. On one view of the matter what was said by the Full Court in Unilan (at 483-484) might not be thought encouraging to the debtor. However, it is unnecessary to explore that question." 214 Despite the view which seems to prevail in Australia that Ministers are not regarded as servants of the Crown, there is a significant body of English authority which suggests that this matter may not be entirely free from doubt. 215 In Town Investments Ltd v Department of the Environment [1978] AC 359 it was accepted that Ministers could be regarded as being servants of the Crown. For example, Lord Diplock said at 383: "The relationship of master and servant does not exist between a minister in charge of a government department and any other government servant employed in that department in whatever grade of the civil service he may be. They are both fellow servants of the Crown." 216 Lord Morris of Borth-y-Gest said (at 393), discussing the difference between Ministers and the Crown: "A minister of the 'Crown' is and is constantly referred to as a servant of the Crown. But it cannot be suggested that the minister is or becomes 'the Crown'. Even if the grandiloquent description of being an 'emanation' of the Crown is applied to him he remains separate from the Crown and is not and does not become the Crown. When acting on behalf of or for the purposes of 'the Crown' some of the well recognised immunities of 'the Crown' may cover what he does. But he does not become absolved from liability for a personal tortious act even though 'the Queen can do no wrong'. 217 Lord Simon of Glaisdale stated (at 398): "The minister at the head of a department of central government is, of course, part of that department. The very term 'minister' is, indeed, again symbolic, denoting an origin as the King's servant, and continued status as servant or agent of the Crown. 218 Lord Simon of Glaisdale also referred to the decision in Bank voor Handel en Scheepvaart NV v Administrator of Hungarian Property [1954] AC 584, and cited a number of passages from the majority and minority judgments in that case (at 399): "Lord Reid, at p.612, quoted from the speech of Lord Westbury LC in Mersey Docks and Harbour Board Trustees v Cameron (1865) 11 HL Cas 443, 501-2, commenting himself, at p.613: '…by "the direct and immediate servants of the Crown, whose occupation is the occupation of the Crown itself" he appears to me simply to have meant those whose position under the Crown is such that their occupation is the Crown's occupation', and, at p 616: 'Ministers are pre-eminently Her Majesty's servants.' Lord Keith of Avonholm said, at p.635: 'In all this there is little that throws light on what constitutes a person a servant of the Crown. Obvious cases like a minister of state … need hardly be considered.'" 219 Ministers are also referred to as servants of the Crown in some secondary sources. For example, Renfree in The Executive Power of the Commonwealth of Australia (1984) has a chapter entitled "Ministers of State and Other Servants of the Crown in Right of the Commonwealth". In this chapter, Renfree states that Ministers are servants of the Crown, as well as being members of that class of Crown servants who also hold public office: see 185, 231. 220 Nevertheless, even if Ministers can be classified as servants of the Crown, it is highly likely that they exercise "independent discretion". As discussed previously, in such circumstances the Crown would not be held vicariously liable for the tortious conduct of a Minister. Alternatively, if Ministers were regarded as not exercising an independent discretion in relation to the commission of certain torts, it is unlikely that the commission of the tort of conspiracy to do an unlawful act, or a lawful act by unlawful means, could be considered to be within the scope of their employment. 221 This contention is supported by the fact that, in relation to the tort of conspiracy, an employer will only be found vicariously liable for acts of conspiracy committed by an employee if there is actual or ostensible authority for the acts constituting the conspiracy (which is generally unlikely): see Credit Lyonnais Bank Nederland NV (now Generale Bank Nederland NV) v Export Credit Guarantee Department [1998] 1 Lloyds Rep 19 at 36-7 (per Stuart-Smith LJ), 41-2 (per Hobhouse LJ).

Direct liability of the Commonwealth for conspiracy 222 Another argument in favour of Crown liability for the tortious acts of Ministers is based on the view that Ministers are "emanations" of the Crown. Such liability would be direct rather than vicarious. This view was alluded to by Lord Morris of Borth-y-gest in the passage from Town Investments cited above. I also refer to the judgment of McTiernan J in New South Wales v Bardolph (1934) 52 CLR 455 in this regard, who stated (at 518-9): "In his judgment in Mackenzie-Kennedy v Air Council [fn: (1927) 2 KB 517 at pp. 522, 523], the same learned Lord Justice approved the observations of Day and Wills JJ in Gilbert v Corporation of Trinity House [fn: (1886) 17 QBD 795], as to the authority of Ministers of State. These observations correctly define the relationship between responsible Ministers in New South Wales to the Crown in right of that State. 'All the great officers of State are, if I may say so, emanations from the Crown. They are delegations by the Crown of its own authority to particular individuals' (per Day J [fn: (1886) 17 QBD at p.801]). 'I am clear that at common law there is no instance of any person or body having two distinct capacities - in one of which there is no liability to be sued because the person or body is the direct representative of the Crown, and in the other there is a liability to be sued because the capacity is that of a private corporation or person' (per Wills J [fn: (1886) 17 QBD at p.803]). The Premier acted in his official and representative capacity and no action on the contract would lie against him in that capacity … Such an action could not be maintained because the Crown would be the real entity pursued …" 223 There is no doubt that a company which can, of course, act only through the "mind and will" of its senior management can be rendered criminally liable as a conspirator. Such liability is direct, and not in any sense vicarious: R v ICR Haulage Ltd (supra). While the Commonwealth of Australia has been described as being akin to a "corporation sole", it is also a term descriptive of the Crown in right of the Commonwealth. The special position of the Crown in relation to its immunity from criminal liability must be considered. 224 While ss 56-58 of the Judiciary Act seemingly allow for all types of civil proceedings in contract or tort to be initiated against the Crown (Breavington v Godleman (1988) 169 CLR 41 at 68-9 per Mason CJ), there must be implicit in those provisions some limiting principles arising from the very nature of governmental activity. These include, in particular, the fundamental principle that absent legislation which expressly or by necessary implication permits such a course, the Crown in right of the Commonwealth cannot be found by the Courts to have committed what is, in effect, a serious common law offence. See Blackstone I Comm c VII, 246; IV, c.11 32 where the King's unquestioned immunity from prosecution for crime was treated as being based upon the somewhat arcane legal fiction that the Sovereign was incapable of possessing the requisite mens rea. 225 A more modern and less dubious justification for the doctrine is that the Sovereign is immune from punishment, rather than being incapable of committing a crime. There is an absence in the constitutional theory of Australia of any tribunal possessed of jurisdiction to try the Sovereign for an indictable offence. Indictments are, after all, preferred in the name of, and on behalf of, the Queen. 226 In Kenny's Outlines of Criminal Law (edited by JWC Turner) 18th ed (1964) the learned author observes at p 70: "At the trial of Charles I, even the Parliament's counsel admitted the correctness of a judicial dictum, of Henry VII's time, that "If the King should, in passion, kill a man, this would be no felony for which to take away the King's life"." (footnote omitted) 227 The like immunity which is conceded by the comity of nations to foreign sovereigns must also be remembered: R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [1999] 2 WLR 827 at 844 per Lord Browne-Wilkinson. 228 The difficulty with holding the Crown in right of the Commonwealth civilly liable in tort for conspiracy is that in so far as such liability is said to be direct, it attributes to the Commonwealth the very elements which go to make up the commission of that crime. Indeed, the tort requires elements additional to the crime - overt acts leading to actual loss or damage. However, all of the elements necessary to constitute the crime of conspiracy are contained within the tort, and no finding that the tort has been committed can be made without an implicit finding, albeit at a lower standard of proof than that required for a prosecution, that the crime has also been committed. 229 I accept, of course, that there are significant differences between the crime of conspiracy and the tort of the same name. 230 In Midland Bank Trust Co Ltd v Green (No 3) [1982] 1 Ch 529 at 541 Fox LJ stated: "I come then to the comparison of the crime and the tort at common law. No doubt they have to some extent a common origin. But the definition suggests a closeness which in fact does not exist. The essence of the crime is agreement - execution of that agreement is not necessary. The position is quite different in the law of tort. There must not merely be an agreement (which must be with the intention of damaging the plaintiff as the decision of the House of Lords in the Lonrho case [1982] AC 173 now establishes), but damage to the plaintiff must in addition be sustained. The ambit of the two forms of conspiracy is, therefore, very different. In the criminal law the gist of the offence is the agreement. In tort, on the other hand, although the agreement is necessary, intention to injure and actual injury are also both necessary. It seems to me, therefore, that the two forms of conspiracy are so different that there is no logical reason for asserting that the immunity given in the case of crime ought as a matter of principle to be extended to the tort. Nor, I should add, is the historical development of the two forms of conspiracy so close that constituents of one should be regarded as being likely to be applicable to the other. The civil wrong in its present form is really of fairly modern origin. It was largely established in three cases about the end of the last century, the Mogul case 23 QBD 598; Allen v Flood [1898] AC 1 and Quinn v Leathem [1901] AC 495, followed by the Crofter case [1942] AC 435. So late an origin does not suggest the likely absorption in to the tort of the, by then, archaic notion of complete unity in law between husband and wife." 231 It should be noted, however, that the issue in the Midland Bank case was whether there were considerations of public policy which should lead the court to decide that for the purposes of the law of tort husband and wife could not conspire together, a public policy principle which had existed in the criminal law for a very long time. That is an issue far removed from whether the Crown in right of the Commonwealth should be amenable to liability, in a direct sense, for the tort of conspiracy. 232 I note that Professor Hogg, in his seminal work, considers the possibility of the Crown being held directly criminally liable for offences which require mens rea. The learned author draws an analogy from those cases where corporations have been prosecuted on the basis of the mens rea of their "directing mind and will". He cites no criminal case as support for this proposition, but rather only a civil case, The Truculent [1952] P 1 in which the "actual fault and privity" of the Third Sea Lord (as "directing mind" of the Admiralty) rendered the Crown civilly liable. For the reasons set out above I do not accept the correctness of this reasoning in so far as it is said to render the Crown potentially criminally liable in relation to the offence of conspiracy. 233 As for the vicarious liability of the Commonwealth for conspiracy for the acts of a Minister, it is difficult to see how an agreement to carry out an unlawful enterprise which amounts to a criminal offence can possibly be viewed as other than being entirely outside the scope of any principles of agency upon which it could be said that the Commonwealth could be liable, even if the Minister could be viewed as a Crown employee. Such a view accords with the special position occupied by a Minister of the Crown, and with the range of independent discretions which are vested in Ministers in the performance of their duties. 234 Not surprisingly, perhaps, counsel for the applicants did not refer to any authority in which the Commonwealth of Australia had been held liable, whether directly or vicariously, for this particular tort, whether in relation to the conduct of a Minister, or of a recognised Crown employee. 235 The issue was, however, touched upon briefly during the course of the application for special leave to appeal before the High Court in the Patrick Stevedores case (supra). The transcript of the argument before the Court reveals the following exchange: "BRENNAN CJ: The question of the Commonwealth's liability for a conspiracy is a very difficult problem. MR GYLES: But, your Honour, also the evidence - - - BRENNAN CJ: We are not talking about liability of individual persons, such as, for example, the Minister but the Commonwealth itself is a different kettle of fish. …. MR GYLES: … the question of the Commonwealth's liability for the tort of conspiracy was raised by his Honour the Chief Justice. My learned friends, of course, have sued the Commonwealth and that is the position before this Court. There has been no application made to strike them out. Might I say also, your Honours, that in view of the decision of this Court in Northern Territory v Mengel (1995) 185 CLR 307 at 345 to 348, it would be a very difficult argument to put. Once there can be Commonwealth liability for intentional torts, it is difficult to see why there should be any distinction drawn in the case of conspiracy. In any event we, with the applicant of the case, will certainly join forces to keep the Commonwealth there." 236 The implementation of government policy by a Minister of the Crown cannot readily be equated with Commonwealth activity which has, as an analogue, the private activity of an individual party eg operating a factory. The principles of vicarious liability upon which the Commonwealth's potential liability for conspiracy must depend do not lend themselves to the imposition of any such liability for this tort in relation to the conduct of a Minister, or, I believe, a Crown employee - Attorney-General for New South Wales v Perpetual Trustee Co Ltd (supra) at 249 per Dixon J. 237 The position in the United States is rather different from that which applies in this country. In Laurence H Tribe's American Constitutional Law 2nd ed (1988) at par 4-14 the following passage appears: "In general, there is no executive immunity - common law or otherwise - from criminal prosecution. It has nonetheless been argued that the Constitution's provision of impeachment as a means of removing "civil Officers" bars any indictment or prosecution of impeachable officials until after their removal. With respect to the Vice President, this argument has been quite properly rejected in practice, although it has not been authoritatively adjudicated: prior to his 1973 resignation, Vice President Spiro Agnew was indicted by a federal grand jury on charges of bribery and income tax evasion. With respect to the President, some commentators have assumed that the Chief Executive's unique role mandates immunity from criminal process prior to removal. However, in United States v Nixon [418 US 683 (1974)], in ruling on the question whether President Nixon could appeal an order denying a motion to quash a subpoena without first being cited for contempt, the Supreme Court did not hold the President immune to such criminal citation but rather noted only that [at 692] "issuing a citation to a President simply in order to invoke review" would be "unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government". Arguably, the Nixon decision supports, by implication, the proposition that there might be instances in which a sitting President could be cited for contempt or otherwise criminally charged, but not even that reading of Nixon would imply presidential amenability to criminal proceedings generally." (footnotes omitted) 238 Professor Tribe then continues: "The law is clearer with respect to civil liability for executive transgressions. The Supreme Court has long recognised a federal common law immunity protecting executive officials, in the absence of congressionally-created exceptions, from civil liability to private plaintiffs arising out of acts performed "in the discharge of duties imposed upon [such officials] by law". [ fn. Spalding v Vilas 161 US 483, 498 (1896) …] 239 It appears that there are limits upon federal executive immunity from damages liability based upon what is described as "a good faith" requirement. The official must not have acted maliciously, or with knowledge that his or her conduct was illegal, and it would seem there is also an "objective" requirement that the official had reasonable grounds for believing that the action violated no statutory or constitutional prohibition. 240 In Nixon v Fitzgerald 457 US 731 (1982) a divided Court upheld the former President's claim of absolute protection from damages liability. The majority treated absolute presidential immunity as "a functionally mandated incident of the President's unique office". The dissentients charged that the decision placed the President above the law, and was "a reversion to the notion that the King can do no wrong". Professor Tribe notes that the majority in Nixon v Fitzgerald did not, in fact, rule that the Constitution flatly forbids assessment of damages against the President. The Court held only that such liability could not be imposed upon the President without explicit congressional direction. 241 The vicarious liability of the Federal Government for the tortious acts of its servants is established by the Federal Tort Claims Act of 1946 ("FTCA"). As in Australia, the Federal Government of the United States is open to claims of vicarious liability on the basis of the doctrine of "respondeat superior", for the acts of its employees performed within the scope of their employment. However, the operation of the FTCA is largely limited to claims of liability for negligence. In addition, the FTCA's waiver of immunity is further limited in that it does not include liability arising from the discretionary acts of government officials. 242 As a result, any damage resulting from discretionary executive action would not be subject to compensation by the US Government.

The claims in negligence 258 The applicants seek to plead several claims in negligence against various respondents. The first such claim is brought against what is described as Patrick Stevedores Group and Chris Corrigan. It is set out at pp 76-80 of the amended statement of claim. 259 The facts which are pleaded to make good this cause of action are in substance as follows: · The agreement on 15 October 1997 between Corrigan, Wells and Kilfoyle to the effect that they would supply the Patricks groups with non-union labour who would be trained in Dubai to replace union labour. · The reduction of that agreement to writing. · The fact that Corrigan was acting on behalf of the Patricks group of companies, and Wells and Kilfoyle were acting on behalf of the first and second respondents. 260 From these three facts the following paragraph is pleaded: "5. In the circumstances the Patricks group of companies either jointly or severally, or in the alternative, Corrigan for himself owed a non delegatable [sic] duty of care to the applicants and other trainees." 261 It goes without saying that none of the facts pleaded in the paragraphs immediately preceding this conclusory assertion come remotely close to establishing the material facts from which a duty of care owed by any of the Patricks entities to the applicants could be demonstrated. The absence of the necessary material facts is not cured by what purport to be "particulars" of this "non delegatable [sic] duty of care" which are set out beneath the paragraph in which that duty of care is asserted. However flexible a view may now be taken of pleadings in modern commercial litigation it remains true, in my opinion, that particulars cannot cure fundamental defects in pleading. Even if they could, the particulars which are provided do not contain material facts from which the existence of the duty of care which is asserted could be demonstrated to exist. 262 After setting out these "particulars" the applicants seek to plead again the basis for their claim that the Patricks group of companies and Mr Corrigan owed them a "non delegatable [sic] duty of care". That pleading is as follows (at p 78): "6. In the circumstances the Patricks group of companies either jointly and/or severally or in the alternative Chris Corrigan owed a non delegatable [sic] duty of care either as head contractor or employer by virtue of those matters pleaded aforesaid breached that duty and were negligent either jointly or severally or in the alternative, Christopher Corrigan by himself." 263 No facts are pleaded to support the characterisation of the Patricks groups of companies, or in the alternative Chris Corrigan, as "head contractor". No facts are pleaded to support the assertion that any of the respondents against whom this claim of negligence is made were "employers" of the applicants. Manifestly, on the other facts as pleaded, they were not. 264 There then follows a series of what are termed "particulars of negligence". Many of these particulars are predicated upon the erroneous assumption that facts have been pleaded which demonstrate the existence of an employer/employee relationship between the Lang respondents, and the applicants. Some of these particulars of negligence really are quite extraordinary. For example, particular (ix) at p 79 of the amended statement of claim reads as follows: "(ix) Negligently permitting Wells and Kilfoyle, either for themselves or for and on behalf of Fynwest Pty.Limited and CTMS Limited to represent that the applicants would have a three year position with options to renew every three years and further a job for life when the Patricks group of companies either jointly or severally and Corrigan knew or ought to have known that such a representation was untrue or in the alternative, was not based on any reasonable grounds." 265 Precisely how a non employer is said to have a duty to prevent an entirely different entity, which is the relevant employer, from making false representations to its employees is not anywhere spelt out. 266 Having set out these particulars of negligence, the applicants conclude by pleading that the Patricks group of companies either jointly or severally or, in the alternative, Chris Corrigan were negligent such that the applicants "have suffered severe injury loss and damage" as particularised below. No facts are pleaded which are capable of giving rise to a conclusion that any negligence on the part of the designated respondents was causally related to the loss or damage which presumably is that referred to at pp 89-90 of the amended statement of claim. The applicants contend that there is no obligation upon them to plead any such facts. The authorities do not support that contention: Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (supra) per French J; Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (supra). 267 The applicants then plead what purports to be a claim in negligence against the Commonwealth. Par 1 of that claim is set out at p 80 of the amended statement of claim: "1. At all material times departmental officers of the Commonwealth, the Minister and the Commonwealth of Australia owed a duty of care to the applicants to ensure that negligent acts weren't committed by servants or agents of the Commonwealth in the performance of their duties." 268 This is nothing more than a conclusory pleading without any material facts being set out to establish the existence of the duty of care for which the applicants contend. No facts which establish any relationship of proximity or any foreseeability, reasonable or otherwise, are pleaded. 269 After setting out certain matters that the Commonwealth "knew or ought to have known" the pleading continues: 4. As a result of the matters pleaded aforesaid the applicants were exposed to a risk of foreseeable injury loss and damage which they sustained as a result of the negligence of the Commonwealth." 270 After setting out particulars of negligence which include, inter alia, failing to seek any or any legal advice from the Australian Government Solicitor or the Solicitor-General, the applicants plead that as a result of the negligence of the Commonwealth, its servants and/or its agents together with its departmental officers and the Minister for Industrial Relations, the applicants have suffered severe injury loss and damage as particularised below. Once again, no facts are pleaded to establish any causal connection between the negligence particularised and the loss or damage which is presumably that set out at pp 89-90 of the amended statement of claim. 271 In Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 167 Merkel J dealt with an application that a statement of claim be struck out. His Honour stated at par 11: "However, there is a fundamental difficulty with the pleading in negligence in its present form which may, in part, have contributed to Esso's view that the pleading is premised on an alleged right to supply. The difficulty initially relates to para 9 of the statement of claim which contains a bald allegation that Esso owed a duty of care to each of the applicants and each of the group members "in the design and operation of the Longford plant". As has been pointed out on a number of occasions, the existence of a duty of care is closely related to the damage in respect of which it is said the alleged wrongdoer had a duty to take some step to avoid. A duty of care arises in negligence at common law only where there exists a relationship of proximity between the parties with respect to both the relevant class of act or omission and the relevant kind of damage. In Sutherland Shire Council v Heyman (1984) 157 CLR 424 at 487 Brennan J said: "…a postulated duty of care must be stated in reference to the kind of damage that the plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member…The question is always whether the defendant was under a duty to avoid or prevent that damage…" See also Bryan v Maloney (1995) 182 CLR 609 at 617-619." 272 Merkel J continued at par 14: "Paragraph 9 of the statement of claim fails to take into account the significance of the above observations and offends the basic requirement of pleading the duty of care in a manner which connects it with the loss against which the plaintiff is to be protected. I do not accept the submission of the applicants that the nexus sufficiently appears in para 22. In the circumstances of the present case I am satisfied that para 9 ought to be struck out." 273 His Honour continued at par 16: "Esso's submissions concerning para 13 are closely related to the deficiency, to which I have referred, in para 9. Paragraph 13 states that the interruption to supply was caused by the respondent's negligence and breach of the duties referred to in para 9. In my view it is embarrassing to have both claims expressed in that general and overlapping form. Further, as para 9 has been struck out, to the extent that para 13 relies on para 9, it must also be struck out. In those circumstances it is unnecessary to determine whether the particulars are material allegations of fact or are appropriate for particulars. However, in my view more careful consideration should be given to that matter in a repleaded statement of claim as there is some substance in the allegation that, in a case such as the present, it may not be appropriate for all of the substantive allegations concerning breach of duty to be pleaded as mere particulars." 274 The claims of negligence against all the respondents who have sought relief in the present proceedings against the applicants in respect of the amended statement of claim are so poorly drawn and inappropriately expressed that they should be struck out upon the basis that they do not disclose any cause of action against the designated respondents, and that it would be embarrassing to plead to them.

(1998) 77 FCR 456

(1998) 77 FCR 478

(1998) 153 ALR 643

(1949) 78 CLR 62

(1964) 112 CLR 125

(1993) 177 CLR 598

(1999) 163 ALR 395

(1984) 3 NSWLR 486

(1988) 82 ALR 401

(1989) 18 NSWLR 48

(1991) 30 FCR 511

(1994) 118 ALR 385

(1982) 148 CLR 658

(1985) 7 FCR 109

(1979) 40 FLR 242

(1999) 161 ALR 458

(1987) 14 FCR 215

(1988) 15 NSWLR 662

(1984) 2 FCR 82

(1959) 103 CLR 30

(1991) 105 ALR 456

(1984) 153 CLR 317

(1998) 192 CLR 493

(1998) 157 ALR 135

(1980) 32 ALR 570

(1987) 11 NSWLR 561

(1939) 62 CLR 339

(1948) 76 CLR 1

(1999) 163 ALR 648

(1996) 63 FCR 210

(1952) 85 CLR 237

(1906) 3 CLR 969

(1939) 62 CLR 660

(1987) 163 CLR 329

(1993) 44 FCR 481

(1995) 58 FCR 129

(1934) 52 CLR 455

(1988) 169 CLR 41

(1995) 185 CLR 307

(1999) 164 ALR 18

(1996) 68 FCR 213

(1979) 40 FLR 257

(1988) 18 FCR 378

(1974) 131 CLR 69

(1990) 169 CLR 279

(1987) 13 FCR 413

(1931) 46 CLR 343

(1942) 66 CLR 18

(1935) 52 CLR 712

(1977) 139 CLR 362

(1986) 161 CLR 254

(1956) 96 CLR 397

(1988) 165 CLR 55

(1975) 135 CLR 337

(1938) 59 CLR 170

(1984) 157 CLR 424

(1995) 182 CLR 609

(1988) 18 FCR 379

(1989) 34 IR 466

[1999] FCA 822