21 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 ¶41-552 at 42, 679.
22 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.
23 Each of the three markets the subject of the applicant's claims is identified in a complex way. But the pleading in my opinion adequately defines these markets by reference to a range of compressive strengths of concrete and by reference to the supply and delivery of this concrete to large consumers in particular geographic areas, eg, in the case of the Brisbane concrete market, an area defined by reference to the municipal boundaries of Brisbane and Logan cities and the identified adjacent areas. Paragraph 4 removes any embarrassing uncertainty that would otherwise exist in the way the geographic limits of each of the three markets is defined in para 3: it fixes those limits by reference to the location of all batching plants that supplied, during the relevant period, this product to this range of consumers.
24 Further, it is unlikely that the existence of markets very like those alleged by the applicant will be in issue at the trial. The three market definitions provided by the applicant in its pleading have been largely copied from the way these markets were defined in the pleadings delivered by the Trade Practices Commission in the proceedings it brought against the first three respondents and the seventh respondent. All, by responsible officers, assisted in the process that resulted in the formulation of the cases the Commission presented against them in the penalty proceedings. Although the Commission did not deliver a pleading against any of the fourth to sixth respondents in the penalty proceedings it brought against them, those proceedings, like the Commission's action against the other four respondents, came before the Court in circumstances in which each of these respondents, by responsible officers, had co-operated with the Commission in the formulation of the case which the Commission presented against each by way of uncontested written submissions and affidavits provided by those responsible officers. So far as the fourth to sixth respondents are concerned, those proceedings were brought in respect of their activities in a Brisbane concrete market accepted in the information provided to the Commission and the Court by each of these respondents as comprising the Brisbane and Logan City areas. It is not just the case that the facts relevant to the market issue are within the knowledge of the respondents: all co-operated in the penalty proceedings in the formulation of how the three markets should be identified in a manner that is much the same as that adopted by the applicant in these proceedings. Given this (and quite apart from the extent, if any, to which the applicant may be able to rely on s 83 the Trade Practices Act and on what occurred in the penalty proceedings as constituting admissions by the respondents probative of issues in these proceedings), it is unlikely that any of the respondents will be able properly to deliver defences contesting the allegations as to the existence of the three markets. This is another reason why the attack on the way the pleading of the markets involves conclusions should be rejected.
25 I consider that, in the circumstances of this case and subject to two qualifications, the pleading adequately identifies the product, functional and geographical boundaries of the markets of relevance to the applicant's s 45 case to satisfy the applicant's pleading obligations with respect to this issue.
26 The first qualification to the adequacy of the applicant's pleading the relevant markets is this: the loss which the applicant claims it suffered as a result of the respondents' conduct in contravention of s 45 is alleged to flow from the combination of the respondents' almost complete market share of the product in each of the three markets and their collusive conduct which resulted in prices for the product supplied both directly and indirectly to the applicant being substantially higher than those which would have obtained in each of those markets, in the absence of that conduct. It may be that it will ultimately be revealed as necessary for the applicant to identify the location of each of the batching plants upon which market definition depends to properly prove the loss component of its claim, before the respondents are in a position to fully prepare their evidence in answer to that component of the claim. It was not submitted, nor is it apparent at the moment, that that is in fact the position. But if, as the action progresses towards trial, the respondents do need such information in order to deal with the damages issue, they will be entitled to have it, either by way of particulars or a written statement of evidence.
27 The second qualification is this: The applicant, in par 3, defines the markets by reference to "the supply and delivery of pre-mixed concrete". However, in par 6, in pleading the various respondents' market shares, the allegation is that they "produced and supplied" various shares of pre-mixed concrete sold in each of the three markets. I accept the respondents' submission that this allegation in par 6 is embarrassing, given the way the markets have earlier been identified: a market for the supply and delivery of pre-mixed concrete in a particular area can embrace a quite different range of participants on both the supply and demand sides from a market for the production and supply of that concrete in that same area. It is clear from its submissions that the applicant's concern is with markets focussing on the supply and delivery of concrete. Paragraph 6 must be amended to reflect this.
28 The next challenge to the pleading can be dealt with by reference to the allegations concerning the Brisbane concrete market. The applicant's case here, as pleaded in pars 10, 15 and 16, is that an agreement or arrangement was made or an understanding arrived at, in respect of this market, at one or more meetings in mid 1989 between representatives of the first six respondents, which agreement, arrangement or understanding, by the means alleged in par 16, would prevent price competition between the respondents and maintain both their respective market shares and prices at levels satisfactory to the respondents. The applicant further alleges that at a meeting in about December 1993 between representatives of all seven respondents, the seventh respondent joined in the earlier agreement, arrangement or understanding.
29 The applicant acknowledges that the introductory words in par 10 of the pleading need attention to make it clear that the applicant's case is based upon an initial agreement, arrangement or understanding reached in mid 1989 which was implemented over the ensuing five years. Paragraph 202 needs similar clarification. Leave is granted to make the appropriate amendments.
30 But the sixth respondent contends that if the pleading is to be read in this way, the particulars in par 10 of the pleading are insufficient to support what is there alleged. It is said, firstly, that par 15, which is incorporated in par 10, only asserts conclusions and that no particulars are given of the substance and effect of the oral communications referred to in par 10(a) and (b), in reliance upon which it is said that the particular compact was arrived at. Secondly, it is said that the particulars of the compact given in par 10(c) are insufficient to support the allegation of the making in mid 1989 of the "umbrella" agreement upon which the applicant's case is based because par 17, incorporated in par 10(c), refers to a large number of meetings and significantly, to a large number of individual agreements or arrangements said to have been made at various times that extend over much of the five year period after mid 1989. Reference is here made to par 17(f) (which refers to numerous meetings about "pet" customers, ie, those for whose business the respondents agreed not to compete among themselves), 17(g) (which refers to a large number of individual collusive tendering agreements by means of which the respondents selected which one of their number who would win the contract for each particular project), 17(i) (which refers to two price-fixing agreements, one made in June 1991 and the other in December 1993) and 17(j) (which refers to a number of collusive tendering agreements for particular Brisbane City Council and Logan City Council projects).
31 As to the first submission, pars (a) and (b) of the particulars in par 10 of the pleading identify the meetings and their participants at which it is alleged all seven respondents became parties to what was called the "umbrella" agreement, arrangement or understanding in 1989 and in December 1993 upon which the applicant's s 45 case in respect of the Brisbane concrete market is founded. The applicant has access to the affidavit material relied on by the Trade Practices Commission in the penalty proceedings. This deals in detail with these meetings. Counsel for the applicant stated that it would give the best particulars it can of the substance and effect of the oral communications that took place at these meetings and upon which the applicant relies to prove the making of the arrangement in question and then of the extension of that arrangement to include the seventh respondent. The applicant will therefore be ordered to provide these particulars.
32 These particulars should also meet the objection as to par 15 stating conclusions only, although I would not have considered this a valid objection given the considerations to which I have referred, which arise from the background to these proceedings in the earlier penalty proceedings.
33 As to the second submission, par 10(c) alleges that "the formation of the agreement, arrangement or understanding is to be inferred from the overt acts of [the seven respondents] set out below in paragraph 17".
34 Where a claim is based on a clandestine compact between a number of respondents, the applicant can be expected to be unable to give precise particulars of material facts sufficient to support its allegation of the making of that compact. In such cases, the entitlement of the respondents to be apprised before trial of the nature of the applicant's case must, as McPherson J observed in Adsteam Building Industries Pty Ltd v The Queensland Cement & Lime Co Ltd (No 4) [1985] 1 Qd R 127 at 133, "be accommodated to the nature of that case itself". It will generally be appropriate (and necessary) for the applicant to plead the overt acts it intends to rely on to justify the inference that a compact to the effect alleged was made: see Adsteam at 133 - 134 and Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd & Ors at 140 - 141. The applicant is well-placed by its access to the evidence in the penalty proceedings to be able to particularise with some precision the facts relied on referred to in par 10(a) and (b) to show that the compact in question was made, as it has now undertaken to do. But I do not think that disentitles it to rely also on material said to constitute overt acts to supplement that material or as an alternative factual foundation to prove that compact.
35 Overt acts are evidence, often circumstantial only, from which the applicant contends the existence of the relevant arrangement can be inferred. In cases of the kind referred to in Adsteam, they also serve that function of particulars of limiting the area of factual inquiry with respect to the issue of whether such an agreement was made. In this way, the important function of pleadings is served.
36 An important class of overt act relied on in par 10(c), and pleaded in detail in par 17(g) and (j), consists of the many individual arrangements made by the respondents with respect to the supply of pre-mixed concrete to a large number of projects, which include the applicant's.
37 If a number of persons agree, on a particular occasion, to embark on a course of criminal conduct over a period of time, the offence of conspiracy is committed at the moment of agreement, but they remain conspirators and their conspiracy continues until their agreement has been brought to an end. R v Simmonds [1969] 1 QB 685 at 696. Moreover, such an arrangement will remain a single conspiracy no matter who joins or leaves it, as long as there are at least two of them at any one time acting in combination to achieve the original criminal objective. R v Masters (1992) 26 NSWLR 450 at 458. These authorities support the approach taken by the applicant in pleading an initial unlawful compact made in 1989, implemented over time, and to which the seventh respondent only became a party in December 1993.
38 The matters alleged in par 17(g) and (j) of the pleading are, when taken together, well capable in my opinion of providing circumstantial evidence that a compact of the kind alleged in paragraph 10 was entered into by the first six respondents by mid 1989, that it continued to mid 1994, and that the seventh respondent became a party to it in late 1993. There are many of these matters in the relevant period and they are all similar in kind: that points to the existence of an overarching agreement of the kind alleged rather than to a large number of unconnected arrangements only made ad hoc. See The King v Associated Northern Collieries (1911) 14 CLR 387 at 400 and Latham v Singleton [1981] 2 NSWLR 843 at 859. I reject this attack upon the pleading.
39 The sixth respondent also contends that it is embarrassing for the applicant to rely on the many particular arrangements referred to par 10(c) and par 17(g) and (j) and set out in more detail in pars 20 to 88 and 101 to 107 both as overt acts evidencing the making of the initial unlawful arrangement and as conduct whereby the respondents "gave effect" to the alleged "provisions" of that arrangement. Australian Competition and Consumer Commission v Mobil Oil Australia Ltd (Federal Court of Australia, 5 June 1997, unreported) was referred to. Heerey J is there said to have held that it is not permissible to rely upon the same conduct both as evidence from which the unlawful arrangement can be inferred and as conduct by the respondents in giving effect to that unlawful arrangement. At pp 26 and 27 of his reasons, Heerey J explained his conclusion by referring to what Ryan J had said in an earlier judgment dealing with an earlier version of the same pleading in the Mobil Oil litigation. Reference to Ryan J's judgment (9 September 1996, unreported) shows that what his Honour was concerned to reject was the Commission's suggestion that particulars of conduct said to constitute acts done in giving effect to an anterior compact contravening s 45 could constitute what his Honour termed "the usual particulars" of the kind given when a contract, written, oral or implied, is sued on, ie, particulars of the making of that same compact. What was said there does not provide any support for the respondents' proposition. But Ryan J also stated that the circumstantial evidence from which the Commission said the arrangement sued on should be inferred could not be properly given as particulars of that same arrangement. His Honour was apparently not referred to the Adsteam decision. For the reasons given in Adsteam, I think it is appropriate for an applicant who is unable to give "the usual particulars" of a clandestinely made compact to discharge its obligation to inform the respondent of the case to be met by pleading, as overt acts, the various items of circumstantial evidence the applicant intends to rely on as justifying the inference that the compact in question was in fact made. See also Associated Northern Collieries at 401. Such items of evidence will often be confined, for want of further information available to the applicant at the time it pleads its case, to acts done in implementation of the compact sued upon.
40 The sixth respondent also alleges that each of these many arrangements in par 10(c) should themselves be pleaded with "the usual particulars" appropriate to a claim based on a contract. The complaint is that the pleading of each of the many individual collusive arrangements referred to in, eg, par 17(g) and thus par 10(c), is instead, conclusionary in so far as it simply asserts the making of the arrangement at a particular time in respect of a particular tender. This is said to deny the respondents the entitlement of the ordinary litigant thus the opportunity to destroy, on a piecemeal basis at the pleading stage, this part of the case made against them.
41 I have already explained why I think the notion that every litigant is entitled as of right to a pleading which identifies every material fact necessary to make out the cause of action is a false one. In a case based on a contract not in writing, evidence of the content of the communications relied on to show that a binding agreement containing particular provisions was concluded between the parties will be essential to proof by the claimant of an element of its cause of action, viz, the existence of that contract and its relevant terms. Hence the justification for acquiring such a claimant to plead with particularity the substance and effect of those communications. But the particular agreements here in question are relied on as overt acts, ie, circumstantial evidence from which the "umbrella" agreement can be inferred, not as themselves constituting transactions in respect of each of which the applicant claims relief. It will generally therefore be sufficient, in order to disclose the case to be made out, for the applicant to provide the information that has been pleaded here without having to plead the additional matters required where a claim is made on an oral contract.
42 Moreover, this body of information appears to have come from the respondents themselves, something that deprives the claim that they need particulars of the kind sought to fully understand and prepare to meet the case made out against them in this respect of cogency. For example, of the arrangements in relation to the collusive tender referred to in par 28(a) and incorporated in par 17(g), Barrett, the fourth respondent's Queensland Regional Manager, says in material he provided for use in the penalty proceedings that he recalls having discussed that matter with representatives of the other respondents at meetings very like those pleaded and the information which is picked up in par 28 of the applicant's pleading concerning this matter is based on information which Mr Barrett says was "taken from Hymix's internal project lists". He identifies the project, the builder, the approximate date, the approximate quantity of concrete supplied and who was agreed to be the successful tenderer. The same pattern appears in the material prepared by senior representatives of most of the other respondents and put before the Court in the penalty proceedings. The applicant has, in pars 17(g) and (j), sufficiently identified each separate arrangement. If the respondents need more information here, the pleading does not have to be cluttered up with it: they have it available in convenient form in the affidavits their officers gave to the Commissioner in the other proceedings.
43 A major complaint made by the respondents is that no material facts have been pleaded sufficient to establish the existence of any causal connection between the conduct of the respondents complained of and any of the loss or damage sought to be recovered. It is also submitted that the applicant, in relying upon the "umbrella" agreement, is seeking to make the respondents liable for loss and damage far beyond that attributable to any of the successful, but collusive, tenders which the various respondents submitted to the applicant, ie, the tenders referred to in pars 17(g). This part of the pleading, in par 111, is as follows: