"[6] A pleading must contain in summary form a statement of all the material facts on which the party relies.[34] The Court has a discretion as to whether to allow a pleading to be amended. Where there is no prejudice, amendments are generally allowed.[35] On a strike out application or where leave to amend is opposed, it is assumed that the matters pleaded can be proven.[36] If the case pleaded is arguable, that is all that is required to permit the amended pleading to be filed. Its ultimate success or failure is a matter for determination at trial.[37]
[7] There are two reasons why material facts must be pleaded. First, such a pleading enables a party's opponent and the Court to know what the case is that is to be met. Secondly, it discloses whether the party has a claim or defence (whichever may be the case) which is known to law.[38] In more recent times, courts have been more willing to allow a pleading to stand if these prerequisites are satisfied when the pleading and particulars are read together.[39] Nevertheless, what the contended case is must be pleaded and the pleading must disclose a complete cause of action.
[8] It is well established that fraud and conspiracy are allegations which should not be made lightly.[40] Allegations of criminality, fraud or serious wrongdoing must be pleaded with precision and sufficient supporting particularity.[41] The rules of Court require that particulars be given of any fraudulent intention that is alleged.[42]
[9] The discretion to allow a proposed amendment is unlikely to be exercised if the proposed amended pleading would be liable to be struck out. In this regard, the relevant principles are well known. A pleading will be struck out if it is:
... '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'.[43]
[10] In Dey v Victorian Railways Commissioners,[44] Dixon J said:
'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.'[45]
[11] Conspiracy may take one of two forms:
(1) an 'unlawful means' conspiracy in which the participants combine together to perform acts which are themselves unlawful; and
(2) a combination to perform acts which, although not themselves unlawful, are done with the sole or predominant purpose of injuring the claimant.[46]
[12] The learned authors of Bullen & Leake & Jacob's Precedents of Pleadings identify the necessary elements that must be pleaded where the tort of conspiracy is alleged:
(a) a combination or agreement between two or more individuals (required for both types of conspiracy);
(b) an intent to injure (required for both types of conspiracy but must be shown as the sole or predominant purpose for type (2) above);
(c) pursuant to which combination or agreement and with that intention certain acts were carried out;
(d) resulting loss and damage to the claimant. [47]
[13] A conspiracy can be proved without evidence of an express agreement:[48]
A court is entitled to have regard to the overt acts pleaded, and to Infer from those acts that there was an agreement to further the common object of the combination. All of those said to be parties to the conspiracy should be sufficiently aware of the surrounding circumstances, and share the same object, for it properly to be said that they are acting in concert.[49]
[14] An intention to injure is an important part of establishing the tort of conspiracy. In this regard, a conspiracy to injure a person is distinguishable from an agreement to do an unlawful act that results in damage to that person."[50]