"Claim in negligence against the Lang respondents, the Commonwealth of Australia and the Minister for Industrial Relations as joint tort feasors pursuant to the principle in Stevens v Brodribb Sawmilling Company Pty Ltd (1985-1986) 160 CLR 16".
20 Paragraphs 219-261, which follow that heading, purport to plead causes of action in negligence against the Lang respondents, the Commonwealth and the Minister. They do so first by setting out a series of meetings which are alleged to have taken place throughout 1997. These meetings are said to have been attended by representatives of the Minister and one or more of the Lang respondents. The applicants claim that this series of meetings resulted in the October agreement. They say that the aim was to ensure that after the MUA workforce had been terminated, a non-union workforce would be available to take over work on the docks. They say that it was agreed that whatever support and financial assistance was necessary to enable the creation of this non-union workforce would be provided by the Commonwealth.
21 In pars 219-260 there are detailed references to many of the meetings described above, and to some of the discussions which are said to have taken place at those meetings. Some of these paragraphs also endeavour to set out, albeit in a somewhat disjointed and less than coherent manner, the terms of the agreement ultimately arrived at. For example, par 228 asserts:
"That the Commonwealth and the Minister would have to instigate a plan of political provocative action would have to come from the government and from outside the stevedoring industry."
22 In par 261 it is asserted that the Lang respondents, the Commonwealth and the Minister "had a right of control", or alternatively "control", over the training of the applicants in Dubai, over their subsequent employment at No 5 Webb Dock in Melbourne, and over their subsequent employment at Port Botany in Sydney. No facts, apart from the meetings set out above, are pleaded in support of these allegations.
23 In pars 262-5 it is alleged that it was reasonably foreseeable that once members of the MUA discovered that their employment had been terminated, and that they had been replaced by a non-union workforce, the applicants would be exposed to industrial action and to violence. Indeed, the applicants go further. They allege that it was reasonably foreseeable that once their employment had been terminated the members of the MUA would immediately institute proceedings for reinstatement under the Workplace Relations Act 1996 (Cth). Moreover, it was reasonably foreseeable that reinstatement would be ordered, and that the applicants would find themselves out of a job. This was, in fact, what occurred.
24 In paragraphs 266-271 the applicants formulate a series of variants of a duty of care which they claim was owed to them by the Commonwealth, the Minister and the Lang respondents. This duty of care is described in different ways:
· "… to disclose to them that they were military trainees being trained in Dubai to return to Australian ports to replace terminated Maritime Union of Australia employees who were to be sacked on mass (sic) on 30 March 1998." (par 266)
· "… to take reasonable steps to avoid exposing them to confrontationalist and violent exchanges between sacked MUA workers picketing outside No 5 Webb Dock and at Port Botany in New South Wales and the applicants." (par 267)
· "… to take reasonable steps to ensure that when the labour supply agreements were terminated that the Lang Respondents were acting lawfully and not in contravention of section 298K(1)(a) of the Workplace Relations Act 1996 when terminating the labour supply agreements." (par 268)
· "… to warn them of the true purpose of their employment and to disclose to them that they were to replace sacked MUA workers and not work in the Asia Pacific Basin for a foreign consortium." (par 269)
· "… to prescribe a safe system of work …" (par 270)
· "… to warn them of the termination of the labour supply agreements and that they were to be replacement of union labour at all times irrespective of which corporate entity was employing them." (par 271)
25 In par 284 the applicants plead that there existed between the Commonwealth and the Minister and themselves "a proximity at law" which gave rise to each of the duties set out above.
26 In par 285 the applicants again formulate the duty of care said to have been owed to them by the Commonwealth and the Minister (though not, in this instance, by the Lang respondents):
"… to warn them of the likelihood that the termination of labour supply agreements was an act which contravened section 298K and L of the Workplace Relations Act 1996 (Commonwealth)."
27 In par 286, the applicants plead:
"At all material times it was reasonably foreseeable that if the Minister and the Commonwealth funded, assisted and co-ordinated the Lang Respondents to employ non-union labour on the waterfront and terminate labour supply agreements such that the entire Lang Respondent workforce would lose their jobs that there would be instantaneous legal and industrial action with the foreseeable consequence that the applicants would ultimately have their employment terminated if the Maritime Union of Australia was successful in having their jobs reinstated."
28 Having pleaded in par 285 (and possibly par 286) matters said to give rise to a duty of care owed to the applicants by the Commonwealth and the Minister the applicants then, for no apparent reason, allege in par 287 a breach of that duty, not by the Commonwealth respondents, but by the Lang respondents:
"By reason of the material facts pleaded above the applicants plead that the Lang Respondents breached their duties of care to the applicants for which they have suffered serious injury, loss and damage."
29 There are, however, no "material facts pleaded above" which, if proved, could establish any breach of duty of care on the part of the Lang respondents. This is symptomatic of the generally loose and ill conceived manner in which this pleading is drafted.
30 There follow in pars 288 to 297 what are described as "Particulars of Negligence - the Lang Respondents". These particulars of negligence are expressed in terms of various failures on the part of the Lang respondents to warn the applicants of the impending sacking of the entire MUA workforce. Notwithstanding the heading preceding these paragraphs, par 297 pleads, not that there was negligence on the part of the Lang respondents, or what constituted that negligence, but that having regard to various activities on the part of Mr Corrigan:
"… there existed a proximity between the Lang Respondents and the first and second applicants such that a duty of care arose as pleaded above which was breached."
31 In other words, while par 297 appears under the heading "Particulars of Negligence - the Lang Respondents", it seeks to raise, yet again, the existence of a duty of care, and not an allegation of breach of that duty. Why it does so is not at all clear.
32 I am in no doubt that the entire pleading in negligence is unsatisfactory, particularly in relation to the Commonwealth respondents. No allegation of breach of duty whatever is made against either the Commonwealth or the Minister. There are no particulars of negligence of any kind provided in relation to those respondents. I can only assume that this was an oversight, since particulars of negligence are provided in relation to the Lang respondents.
33 The pleading in negligence is wholly disjointed. It fails to comply with a number of the requirements of O 11 of the Rules. It does not state all material facts necessary to constitute a complete cause of action. It pleads many facts which are not material, or at least not shown to be material. It regularly confuses the functions to be served by pleadings with the functions to be served by particulars.
34 The sufficiency of a pleading is judged first by reference to the necessary condition that it discloses a reasonable cause of action and second by reference to the requirement for sufficient particularity that the respondents know in advance the case they have to meet. Although the modern tendency is against taking an unduly technical and pedantic approach to pleadings, it is fundamental that a pleading must clearly indicate what allegations are being made - see McKellar v Container Terminal Management Services Ltd (supra) at 417-421.
35 It is one thing to say that a party is not required to formulate a claim as an elegant model of legal purity. It is another to say that a pleading which is prolix, confused and disjointed, and which both omits to plead material facts, and pleads other facts which cannot be said to be material, can be allowed to stand. Pleading imperfections can, in many cases, be cured by granting leave to replead. Some defects are, however, more fundamental than this and cannot be overcome. It is the respondents' contention that the applicants' claim in negligence is wholly misconceived and should be dismissed or struck out without the applicants being granted liberty to replead. I shall deal now with that more fundamental contention.
36 As noted above, the pleading describes the claim for negligence as falling within the principle in Stevens v Brodribb Sawmilling Company Pty Ltd (1985-1986) 160 CLR 16. It is difficult to understand why that method of pleading has been adopted.
37 In Stevens v Brodribb a sawmiller engaged a group of sniggers (or timber movers) to move felled trees to a loading zone. The sawmiller also engaged a group of truckers to carry the trees from there to the mill. Sniggers and truckers used their own vehicles, set their own hours of work, and were paid according to the volume of timber delivered to the mill. They were not guaranteed work, and were free to seek other work if circumstances prevented them from working for the sawmiller. No income tax instalments were deducted from their payments. No control was exercised over the manner in which they performed their specific tasks.
38 While a log was being manoeuvred onto a truck, a trucker was injured by the negligence of a snigger. The High Court held that neither the trucker nor the snigger was an employee of the sawmiller. It followed that the sawmiller was neither vicariously liable for the negligence of the snigger, nor personally liable to the trucker for breach of the specific duty of care owed by an employer to an employee.
39 A majority of the Court comprising Mason, Wilson, Brennan and Dawson JJ determined that the notion that a principal is liable for the negligence of an independent contractor on the basis that the activities he was engaged to perform were extra-hazardous did not form part of the common law of this country. The Court as a whole accepted that even though the trucker was not an employee, the sawmiller owed a general common law duty to provide him with a safe system of work. However, the Court held that, in the particular circumstances, the sawmiller was not in breach of that common law duty.
40 The Commonwealth and the Minister, and the Lang respondents, submitted that the decision in Stevens v Brodribb is of no relevance to the claim of negligence brought by the applicants in this proceeding. As will become apparent I agree entirely with that submission.
41 In Stevens v Brodribb the sawmiller had engaged independent contractors to do work which might just as readily have been done by employees. There was plainly a risk to those independent contractors arising from the nature of the work which they had agreed to perform. There was a need for the sawmiller to give directions as to where and when the work was to be done, and to co-ordinate the various tasks to be performed. In those circumstances, it is scarcely surprising that the sawmiller was held to have had an obligation to provide a safe system of work notwithstanding that the injured party was not an employee.
42 Those facts are far removed from the allegations pleaded in the proceeding before this Court. The applicants were recruited and trained by CTMS and Fynwest. They were employed initially by those companies. They were later employed by PCS Training Services Pty Ltd. There is nothing in the further amended statement of claim to suggest that any of the Commonwealth, the Minister or the Lang respondents, who are sued in negligence, were at any stage in a position even remotely analogous to that of the sawmiller in Stevens v Brodribb.
43 It is true that the applicants have pleaded, as an alternative to their primary claim, that CTMS and Fynwest recruited the applicants not on their own behalf, but as agents of the Lang respondents. However, there are virtually no facts pleaded which could justify that conclusion. At their highest the facts which are pleaded might show an agreement between CTMS and Fynwest and the Lang respondents that CTMS and Fynwest would recruit and train the applicants. There are no facts pleaded which suggest that it was intended that the Lang respondents would be the applicants' employer, or that they would closely supervise or control their actual working conditions. It would follow that the Lang respondents cannot have been under any common law duty to provide the applicants with a safe system of work.
44 No facts are pleaded to support the suggestion that any of the Commonwealth, the Minister or the Lang respondents were in a position to co-ordinate the manner in which the applicants were to perform their work at the docks. Nor are there any facts pleaded which suggest that any of those respondents were expected to undertake that role. It was CTMS and Fynwest initially, and PCS Training Services Pty Ltd subsequently, who were the applicants' employers. It was those companies, and they alone, who were under a common law duty to provide a safe system of work.
45 Even if one puts to one side the narrow (and misconceived) basis upon which the causes of action in negligence have been pleaded, the applicants can gain no comfort from relying upon the facts which they have alleged as forming the basis for a more general common law claim in negligence.
46 I turn first to the Commonwealth respondents. It is alleged by the applicants that the Minister was aware that persons in their position were intended to be used as strike-breakers. It is said that the Minister must, therefore, have been aware of what was likely to happen to the applicants when the members of the MUA discovered what was going on. It is further contended that the Minister must have foreseen that the applicants would lose their jobs, and suffer serious economic loss. It is at least implicit in the pleading that the Minister would have been aware that the applicants would have no knowledge of the fact that they were being recruited to replace the MUA stevedores, and that in the absence of any such knowledge they would be likely to take up the employment offered.
47 In Batten v CTMS Ltd [1999] FCA 1576 Kiefel J dealt with a representative action in which claims for negligence were brought against the Commonwealth and the Minister by group members who were, for all practical purposes, in similar positions to the applicants in the proceeding before me. The Commonwealth and the Minister filed a motion under O 20 r 2 seeking to have those claims dismissed. Kiefel J determined that they were entitled to that relief.
48 After setting out the manner in which the cause of action in negligence was pleaded, her Honour observed at pars 35-37:
"35. It is by reason of these facts that the Minister and the Commonwealth are said to have owed a duty of care to the group members "to take all reasonable steps" to inform them of the part they were to play in the "strategy"; of the truth about the representation; and what was necessary to allow them to make an informed decision.
36. In the way in which it is pleaded, the obligation of the Minister and the Commonwealth to inform the group members is said to arise from knowledge on their part about what would happen to group members if they took up the offer or offers of employment. The duty is, in effect, to warn them of such aspects of the transaction of which they did not know and which might deter them from entering into the engagement. The pleading appears to me to attempt to establish the position of vulnerability on the part of the applicant, such as would found a duty to act to prevent economic harm: see Perre v Apand Pty Ltd (1999) 198 CLR 180.
37. The obligation to warn, or inform, is not pleaded as a duty arising because of what has otherwise been said, to correct or qualify the representations of the recruiters. Indeed, a feature of this claim is that the duty is said to arise with respect to conduct on the part of others which was likely to produce loss or damage; that is to say the Dubai representations, if not corrected, would have that result. No case of duty arising by known reliance on the part of the group members on the Minister's advice, nor some assumption of responsibility on his part such that they could reasonably be said to rely upon it, is pleaded (see Pyrenees Shire Council v Day (1998) CLR 192, 330). In so far as there may be a shift away from categorising situations or the use of control mechanisms, such as proximity to found a duty of care, to an inquiry as to whether there is a sufficient and special relationship between the parties to require action on the part of one to avoid economic harm to the other (Perre v Apand Pty Ltd), such a case is not pleaded here. What is pleaded is knowledge on the part of the Minister and the Commonwealth of the group members' exposure to economic loss. It remains the case that mere knowledge of the risk of such harm is not sufficient to give rise to a duty of care. Moreover, the risks appreciated by a person, and to which a duty to act might relate, are those created by that person, not someone else. The conduct said to give rise to the risk of economic loss to the Dubai Group members is not clearly pleaded. A reference back to the implementation of the strategy, to the intention to fire and re-hire labour and the making of the representations is made. Whatever duty may have arisen because of what was said about the employment to be undertaken and the position the group members were then placed in, which the Patrick companies, Fynwest or CTMS, may have been able to affect, the same causal connexion could not be said to arise with respect to the Minister's antecedent conduct in encouraging the prior termination of others' employment."
49 While it is true that the applicants in the proceeding before me have formulated their causes of action in negligence somewhat differently to the manner in which those claims were formulated in Batten, there are some similarities between the two pleadings. Kiefel J's observation in Batten that mere knowledge of the risk of harm is not sufficient to give rise to a duty of care on the part of the Commonwealth or the Minister, is particularly apposite to the pleading under consideration before me.
50 In Perre v Apand Pty Ltd (1999) 198 CLR 180, to which her Honour referred, the High Court restated the circumstances in which a duty of care will be found to exist in relation to a claim for pure economic loss. The majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) concluded that the matters upon which the existence of a duty of care would depend would vary from case to case. They might include foresight of the likelihood of harm, knowledge or means of knowledge of an ascertainable class of vulnerable persons who are unable to protect themselves from harm, the fact that implying a duty would not impair the legitimate pursuit by the defendant of its own commercial interest, and the fact that the damage flowed from the occurrence of activities within the defendant's control.
51 Gleeson CJ observed, at 192, that bearing in mind the expansive application which has been given to the concept of reasonable foreseeability in relation to physical injury to person or property, a duty to avoid any reasonably foreseeable financial harm needs to be constrained by "some intelligible limits to keep the law of negligence within the bounds of common sense and practicality".
52 His Honour said at 193-4:
"The solution does not lie in what is sometimes described as the three-stage "test" said to have been formulated by Lord Bridge of Harwich in Caparo Industries Plc v Dickman [1990] 2 AC 605. Lord Bridge never said it did. He said it did not. In the much quoted passage in his Lordship's speech where he referred to the necessary ingredients of foreseeability, proximity, and a situation in which the court considers it fair, just and reasonable that the law should impose a duty, he immediately went on to say that "the concepts of proximity and fairness … are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope"."
53 Gummow J dealt with the matter in this way at 253:
"The question in the present case is whether the salient features of the matter give rise to a duty of care owed by Apand. In determining whether the relationship is so close that the duty of care arises, attention is to be paid to the particular connections between the parties. Hence what McHugh J has called the "inherent indeterminacy" of the law of negligence in relation to the recovery of damages for purely economic loss (Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 593). There is no simple formula which can mask the necessity for examination of the particular facts."
54 His Honour continued at 254:
"I prefer the approach taken by Stephen J in Caltex Oil. His Honour isolated a number of "salient features" which combined to constitute a sufficiently close relationship to give rise to a duty of care owed to Caltex for breach of which it might recover its purely economic loss (Caltex Oil Pty Ltd v The Dredge "Willemsted" (1976) 136 CLR 529)."
55 Hayne J was critical of the three-stage test formulated in Caparo, and thought that as long as no unusual principle emerged, this area of the law should develop incrementally, by recognising factors giving rise to liability for pure economic loss. His Honour observed at 300-301: