Adani Mining Pty Ltd v Pennings - [2024] QSC 302

SUPREME COURT OF QUEENSLAND

CITATION:

Adani Mining Pty Ltd v Pennings [2024] QSC 302

PARTIES:

ADANI MINING PTY LTD ACN 145 555 205

(First Plaintiff)

AND

CARMICHAEL RAIL NETWORK PTY LTD AS TRUSTEE FOR THE CARMICHAEL RAIL NETWORK TRUST ACN 601 738 685

(Second Plaintiff)

v

BENJAMIN WILLIAM DEVENISH PENNINGS

(Defendant)

FILE NO:

BS 9186 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

29-30 January 2024 and 26 February 2024

JUDGE:

Brown J

ORDERS:

1.   The following paragraphs of the FASOC are struck out with liberty to replead:

(a) [46] to [57A];

(b) [63], [65] and [66];

(c) [67] to [73A]; and

(d) [78] to [82].

2.   The plaintiffs are to file and serve a second further amended statement of claim by 14 February 2025.

3.   The plaintiffs’ solicitor is to file and serve an affidavit deposing that it has made any necessary investigations required to replead [63] and [66], and is satisfied that there is a reasonable cause of action in relation to Downer and that they have provided the second further amended statement of claim to their clients to provide instructions that they have reviewed the second further amended statement of claim and have instructed that it can be filed in that form.

4.   The enforcement of:

(a)     paragraph [7] of the Orders made in this proceeding by Brown J dated 29 July 2021; and

(b)     paragraphs [11(a)], [11(b)] and [11(c)] of the Orders made in this proceeding by Callaghan J dated 8 March 2022,

is stayed until the determination of the proceeding or earlier order.

5.   The amended application is otherwise dismissed.

6.   The parties have liberty to apply for any further order that may be required to give effect to Order 4.

7.   The parties are to provide submissions as to costs by 31 January 2025.

8.   The Resolution Registrar, in consultation with the supervised case list manager, is to list this matter for review at the earliest available date after 14 February 2025 before a supervised case list judge for directions.

CATCHWORDS:

TORTS – MISCELLANEOUS TORTS – CONSPIRING TO INJURE – GENERAL PRINCIPLES - where plaintiffs alleged unlawful conspiracy to injure against the defendant – where plaintiffs alleged lawful means conspiracy in the alternative to unlawful means conspiracy – where pleadings do not clearly distinguish between unlawful means conspiracy and lawful means conspiracy – whether pleadings fail to specify the unlawful means agreed to be employed and the facts or circumstances which made them unlawful – whether pleadings do not establish necessary causal relationship between unlawful conduct and loss and damage

TORTS – MISCELLANEOUS TORTS – INTIMIDATION – where the plaintiffs allege that the defendant has engaged in tortious intimidation such that he is liable to pay damages –where the plaintiffs allege that certain targeted contractors withdrew from negotiations with the plaintiffs as a result of threats and demands issued by the defendant – whether the plaintiffs properly plead the causal link between the alleged loss to the plaintiffs and the alleged termination of negotiations by contractors and sub-contractors as a result of threats and demands made by the defendant – whether the claim for loss is vexatious, harassing and manifestly groundless – whether the plaintiffs plead unnecessary allegations which are prejudicial and delaying – whether the pleading as to intimidation should be struck-out in whole or in part

TORTS – MISCELLANEOUS TORTS – INTERNTIONAL INTERFERENCE WITH CONTRACT – GENERALLY – where the plaintiffs maintain a claim for injunctive relief to restrain the defendant from future acts of procuring or inducing others to breach contractual duties of confidence by disclosing the plaintiffs’ confidential to him, and from using any confidential information which he obtains – whether the plaintiffs’ pleading failed to disclose a reasonable basis upon which it could be found it is likely that the alleged apprehended future acts of tortious interference will occur – whether the plaintiffs’ pleading does not disclose the existence of a coherent causal link between the defendant’s impugned tortious conduct, which the plaintiffs seek to restrain, and the loss or damage which the plaintiffs say they will sustain because of the conduct

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – GENERALLY – where the defendant applies to set aside the interlocutory injunctions issued by orders made in this proceeding on 11 September 2020 – where the plaintiff has abandoned certain allegations which were relevant to the prima facie claim upon which the injunctions were granted – whether there is a material change of circumstance – whether the balance of convenience no longer favours the injunctions remaining in place

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – where the defendant seeks to strike out or stay enforcement of costs orders made in favour of the plaintiffs on 29 July 2021 and 8 March 2022 – whether there is a basis to strike out or stay the enforcement of the costs orders in the circumstances

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where the defendant seeks to permanently stay the proceedings as an abuse of process or strike the proceedings and not permit liberty to replead – whether the plaintiffs’ claim involves an abuse of process – whether the various pleadings in the further amended statement of claim should be struck out with no leave to re-plead

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 171, r 367, r 667, r 668

Adani Mining Pty Ltd v Pennings [2020] QSC 249, considered

Adani Mining Pty Ltd v Pennings [2020] QSC 275, considered

Adani Mining Pty Ltd v Pennings [2021] QSC 162, considered

Adani Mining Pty Ltd v Pennings [2021] QSC 343, considered

AMA v CDK [2009] QSC 287, considered

Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272; [2012] FCA 758, cited

Daebo Shipping Co Ltd v The Ship Go Star (2012) 207 FCR 220; [2012] FCAFC 156, cited

Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691, cited

Jonker v Thomas International Ltd [2017] FCA 1397, cited

Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634; [2000] QSC 150, cited

Lee v Abedian [2017] 1 Qd R 549; [2016] QSC 92, considered

Lee v Abedian [2017] QSC 22, considered

Parbery v QNI Metals Pty Ltd (2018) 131 ACSR 27; [2018] QSC 240, considered

Resort Lifestyle Developments Pty Ltd v NGI Savannah Living Communities Pty Ltd (2022) 12 QR 67; [2022] QSC 194, cited

TSG Franchise Management Pty Ltd v Cigarette & Gift Warehouse (Franchising) Pty Ltd (No 2) [2016] FCA 674, considered

UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, cited

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited

Willmot v Queensland [2024] HCA 42, cited

Yap v Matic [2022] WASC 181, considered

COUNSEL:

G Gibson KC, with D Pyle and M Windsor, for the plaintiffs
M Hodge KC, with C Schneider, for the defendant

SOLICITORS:

Dowd + Wilson for the plaintiffs

Marque Lawyers for the defendant

The present application is brought by Mr Pennings, the defendant, in these proceedings instituted by the plaintiffs, Adani Mining Pty Ltd (Adani) and Carmichael Rail Network Pty Ltd (Carmichael Rail). The defendant seeks to have these proceedings permanently stayed or struck out, or otherwise seeks to strike out various parts of the Further Amended Statement of Claim (FASOC). He also seeks set aside or permanently stay costs orders made by this Court and discharge injunctive orders made on 11 September 2020.
By way of brief background, the defendant was involved in the Galilee Blockade, where he and a number of like-minded people, passionate about addressing climate change, were involved in protesting and taking what is described as “Direct Action” to try and stop Adani and Carmichael Rail developing the Carmichael Mine (a coal mine) and Carmichael Rail Network (linking the mine to the existing rail network). That action involved not only Adani and Carmichael Mine but contractors, who are described as “Targeted Contractors”. These include companies, organisations and others engaged by or negotiating with Adani to work on the Carmichael Mine or Carmichael Rail Network or sub-contracted to those engaged by Adani or Carmichael Rail. In particular, in these proceedings, it is alleged that the Galilee Blockade ran two campaigns which are described as the “Infiltration Campaign” and the “Dob In Campaign”. They were run through the Galilee Blockade Website and other Galilee Blockade social media accounts and some mainstream media.
The Infiltration Campaign involved the Galilee Blockade encouraging persons to seek employment with the plaintiffs and obtain and disclose confidential information of Adani and confidential information of Carmichael Rail to be used to facilitate Direct Action against the plaintiffs and Targeted Contractors and to pressure Targeted Contractors to withdraw from contracts and/or negotiations with the plaintiffs or cease to perform their work or otherwise frustrate the development of the Carmichael Mine or Carmichael Rail Network.
The Dob In Campaign was similarly described on various webpages of the Galilee Blockade Website and Galilee Blockade social media accounts and is said to have involved the Galilee Blockade seeking persons in possession of confidential information of the plaintiffs to disclose that information to be used in a similar way as the Infiltration Campaign.
Adani and Carmichael Rail contend that Mr Pennings’ actions were carried out contrary to the law and in 2020 sought injunctive relief against him and instituted proceedings seeking permanent injunctions and damages.
In August 2023 the plaintiffs delivered the FASOC. It deleted a number of allegations that the defendant had received and misused what is defined in the FASOC as the Adani Confidential Information and Carmichael Rail Confidential Information ( Confidential Information) an claims that the defendant knowingly procured or induced others to breach their contractual or equitable duties of confidence owed to Adani or Carmichael Rail and breached equitable duties of confidence owed to Adani and Carmichael Rail as well as other parts of other claims asserting the misuse of Confidential Information.
This proceeding has a long and extended history stemming back to 2020 when injunctive relief was granted by Martin J, as his Honour then was, on 11 September 2020. Since then, there have been a number of applications of an interlocutory nature that have occurred, involving vigorous argument from both sides. In one of those applications the plaintiffs applied for a confidentiality regime in relation to disclosure by them as well as limitations to be imposed in relation to the amount of disclosure and particulars required to be provided. I made orders in that regard, including orders as to costs, on 29 July 2021. Subsequent to that time, there were further applications in relation to particulars, which were heard together by Callaghan J on 27 August 2021. The applications by the plaintiffs sought orders that confidential particulars be provided by example and that there be a confidentiality regime in relation to the particulars. That decision was delivered by his Honour on 16 December 2021. The plaintiffs were partially successful in both applications, which resulted in costs orders on 9 March 2022 whereby the defendant was ordered to pay a percentage of the plaintiffs’ costs. The matter was case managed on the supervised case list but, as a result of the FASOC being filed on 6 September 2023, another significant interlocutory dispute occurred which was heard over a non-consecutive three-day period early this year.
The present interlocutory dispute involves multiple of issues arising out of the FASOC and also the service by the plaintiffs of a costs statement upon the defendant. The argument extended over three days, involved lengthy submissions and a large amount of affidavit material.
The defendant, or the applicant in this interlocutory application, seeks orders permanently staying, or alternatively striking out, the proceeding as an abuse of process. This is on the basis of the cumulative effect of four matters, namely:
(a)first, that the plaintiffs’ conduct in abandoning one of their primary claims, which was based upon alleged receipt and misuse of confidential information by the defendant, suggests that the conduct of the proceeding to date has been an improper use of the court’s powers by the plaintiffs;
(b)secondly, that there remain fundamental deficiencies in the pleading of a number of claims, notwithstanding that proceeding was commenced more than three years ago and that there have been five rounds of amendments to the pleading, which is said to be evidence supporting the conclusion that the proceeding is an abuse of process;
(c)thirdly, the plaintiffs’ shifting contentions on issues of causation and alleged loss are said to demonstrate the fragile factual foundation upon which they are based and give further support to the conclusion that the plaintiffs’ prosecution of its claim is an abuse of process; and
(d)fourthly, that three cost statements served by the plaintiffs in relation to costs orders made on 29 July 2021 and 8 March 2022 have been affected by significant error and claim extraordinary amounts of costs which raises doubt as to whether the plaintiffs generally intended to use cost statements as a proper vindication of the court’s processes or as an instrument of oppression.
In the alternative, the defendant seeks orders:
(a)striking out various claims pleaded in the FASOC;
(b)setting aside or staying the enforcement of certain cost orders; and
(c)setting aside injunctive orders made against him on 11 September 2020.
According to the plaintiffs, their abandonment in the FASOC of their allegation as to the defendant’s receipt of confidential information followed a disclosure of process which revealed a lack of evidence to support the fact that the defendant had obtained and misused confidential information. Despite numerous public representations being made by the defendant that large amounts of information had been disclosed to the Galilee Blockade, the disclosure process did not reveal any confidential information of the plaintiffs in the defendant’s possession. The plaintiffs therefore could not provide particulars, which had been deferred by the particulars judgment, and the allegation that the defendant had in fact received confidential information was deleted as a material fact from the current pleading in the FASOC. The key amendment, according to the plaintiffs, was to delete allegations which rely upon the defendant’s actual receipt of confidential information, but otherwise the causes of action are substantially the same as they have always been. The plaintiffs contend that there is no basis supporting the submission by the defendant that the proceeding was brought for a purpose other than the legitimate purpose of recovering damages incurred by the plaintiffs as a result of the defendant’s conduct and obtaining injunctive relief to restrain future such conduct. They reject the complaints made by the defendant and contend that his application should be dismissed.
Issues for determination
I will first consider the alleged deficiencies in the FASOC. The defendant submitted, and I accept, that the court’s view of the deficiencies in the FASOC complained of by the defendant will, in part, be relevant to the defendant’s primary claim that the proceeding as a whole ought to be stayed or struck out as an abuse of process as well as the defendant’s alternative claims for striking out all or some of the plaintiffs’ pleading.
Secondly, I will consider whether the injunction granted against the defendant on 11 September 2020 ought to be set aside.
Thirdly, I will consider whether the cost orders made against the defendant in the proceedings on 29 July 2021 and 16 December 2021 should be set aside or, alternatively, stayed.
Finally, if necessary, I will consider whether the proceedings should be struck out or permanently stayed.
Alleged deficiencies in the FASOC
The background to the proceeding has been set out in paragraphs [1] to [9] of the decision of Martin J[1] and the reasons for my decision of 25 June 2021 at paragraphs [2] to [12].[2]
[1][2020] QSC 275.
[2][2021] QSC 162.
As to the alleged deficiencies in the FASOC, the plaintiffs complain that:
(a)in relation to the claim of tortious interference with contractual relations, the FASOC does not disclose a reasonable basis for apprehending that future tortious interference is likely, nor disclose a reasonable cause of action as to causation and loss;
(b)as to the claim of tortious intimidation, the pleading of causation is fundamentally flawed, the claim for loss is groundless and the plaintiffs have pleaded unnecessary allegations which are prejudicial and should be struck out; and
(c)as to the claim for damages and injunctive relief for alleged tortious conspiracies, the FASOC does not disclose a cause of action for lawful or unlawful conspiracy and there is no proper factual basis for inferring there is such a claim.
Tests for strike out and abuse of process
The defendant contends that the plaintiffs’ pleadings in the FASOC as to each of the claims now remaining are deficient and are liable to be struck out under r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and, given the level of deficiency, the proceeding should be struck out for abuse of process or permanently stayed.
The relevant principles in relation to a strike out under r 171 of the UCPR were conveniently summarised by Bond J, as his Honour then was, in Lee v Abedian:[3]
“[38] All of the applicant defendants accept, as they must, that the power to strike out is to be used sparingly and only in clear cases: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129–130. The power cannot be exercised ‘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’: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91 per Dixon J.
[39]However, they submit, and I agree, that the Court will not shrink from striking out a pleading which is defective because it does not disclose a reasonable cause of action, has a tendency to prejudice or delay a fair trial, contains allegations which are unnecessary, scandalous, vexatious or embarrassing, or which is otherwise an abuse of the processes of the Court.” (footnotes omitted).
[3][2017] 1 Qd R 549 at 599 [38]-[39].; See also Sedgewick Australia Pty Ltd v JLOC Super Pty Ltd [2024] QCA 218 at [12].
Conspiracies
The plaintiffs rely on two kinds of conspiracy in the FASOC, pleaded as the “Information Conspiracy” and “Galilee Blockade Conspiracy”[4]. A third “Confidential Information Conspiracy” was deleted in the FASOC.
[4]See FASOC at [67]-[73A] and [78]-[82].
There are two torts of conspiracy: the first is a conspiracy to injure by lawful means; and the second is a conspiracy to injure by unlawful means. Justice Bond described the requirements of the two torts in Lee v Abedian in the following terms:[5]
[5][2017] 1 Qd R 549 at 599 at 567-8 [69]-[75].
“[69]The elements of the tort of conspiracy to injure by lawful means are:
(a) there was a combination or agreement between two or more persons;
(b)the sole or dominant purpose of the combination or agreement was to injure the plaintiff;
(c)the combination or agreement was carried into effect by the defendants’ conduct;
(d)the defendants’ conduct in carrying the combination or agreement into effect caused damage to the plaintiff.
[70]The elements of the tort of conspiracy to injure by unlawful means are:
(a)there was a combination or agreement between two or more persons to engage in conduct amounting to unlawful means;
(b)a purpose of that combination or agreement was to injure the plaintiff;
(c)the combination or agreement was carried into effect by the commission of the agreed unlawful acts; and
(d)those unlawful acts caused damage to the plaintiff.
[71]It can be seen that the two torts have in common the need to prove the conspiracy; that the conspiracy involved an intention to injure; that the conspiracy was carried into effect; and that so doing caused damage to the plaintiff. And it may also be observed in relation to both torts, that in a case based on a clandestine arrangement or arrangements between conspirators, a plaintiff, who can be expected to be unable to plead the terms of an express agreement in the usual way, must at the least be able to plead and particularise the overt acts it intends to rely on to justify the inference that the agreement on which it relies was in fact made as it alleges.
[72]There are three key distinctions between the two torts.
[73]The first lies in the prominence of the required purpose of injuring the plaintiff. Both torts require the plaintiff to prove that a purpose of the conspiracy was to injure the plaintiff. For a lawful means conspiracy, however, the plaintiff must prove that the purpose of injuring the plaintiff was the sole or predominant purpose of the conspiracy. That is not required for an unlawful means conspiracy where it will suffice for a plaintiff to prove that causing injury to the plaintiff was a purpose of the conspiracy.
[74] The second lies in the nature of the means agreed to be used to injure the plaintiff. For an unlawful means conspiracy, the plaintiff must prove that the combination or agreement was to engage in conduct which amounted to unlawful means. In other words, the unlawful means aspect must exist at the time the combination or agreement was made. That is not required for a lawful means conspiracy.
[75]The third lies in the nature of the means in fact used to carry the conspiracy into effect and cause injury to the plaintiff. For an unlawful means conspiracy, the plaintiff must prove that the conspiracy was carried into effect by commission of the agreed unlawful acts and those agreed unlawful acts caused damage to the plaintiff. That is not required for a lawful means conspiracy where the plaintiff does not have to show that it was the unlawful part of the conspiracy that caused loss to the plaintiff.” (Bond J’s original emphasis replicated and footnotes omitted).

There was no dispute between the parties that his Honour accurately summarised the relevant principles with respect to the torts of conspiracy.
The allegations of unlawful conspiracy, particularly, call for a level of precision and particularity in the allegations made given the serious nature of the allegations.[6]
[6]Central Exploration Pty Ltd v Zuks [2020] WASC 46 at [80]-[81].
The FASOC
The framework for the Galilee Blockade Conspiracy in the FASOC is as follows:
(a)paragraph [67] pleads that, between January 2017 and mid-September 2020, the defendant and at least one other person unknown to the plaintiffs (Unknown Conspirators) made an agreement or understanding to:
(i)procure or induce persons to disclose the plaintiffs’ confidential information to them;
(ii)further, or in the alternative, procure or induce persons to disclose information to them; and
(iii)induce the targeted contractors[7] to withdraw from negotiations with the plaintiffs or contractors to the plaintiffs or terminate, breach or otherwise cease to perform contracts with the plaintiffs or those with contracts with the plaintiffs in respect of the Carmichael Mine or Rail Network;
[7]“Targeted Contractors” is pleaded in paragraph [41(b)] to refer to companies, organisations and others that are engaged by, or negotiating with, the plaintiffs to perform mine or rail work, including contractors, and it also includes those who are sub-contracted to any company or organisation directly contracted to perform work for the plaintiffs.
(b)paragraph [68] pleads that the Galilee Blockade Conspiracy was:
(i)entered into with the sole or predominant purpose of injuring the Plaintiffs; and
(ii)further, or in the alternative, entered into with a purpose of injuring the plaintiffs and to be carried out by direct action against targeted contractors by unlawful means which are then pleaded;
(c)paragraph [69] pleads that, in furtherance of the Galilee Blockade Conspiracy:
(i)the defendant, with the agreement or understanding of the Unknown Conspirators, engaged in conduct pleaded in [41] to [45] and [60]; and
(ii)the defendant and the Unknown Conspirators engaged in conduct pleaded in [62] to [62B];
(d)paragraph [73] pleads that, by reason of the matters pleaded in [67]-[69];
(i)the Galilee Blockade Conspiracy was executed in whole or in part;
(ii)Adani has suffered loss and damage, pleading as particulars the matters in [63];
(iii)Carmichael Rail has suffered loss and damage, pleading as particulars the matters in [65]; and
(e)paragraph [73A] pleads that, unless restrained, the defendant will continue to engage in the Galilee Blockade Conspiracy by engaging in the unlawful acts with his Unknown Conspirators pleaded in [68(b)(ii)] to [69] and that the plaintiffs will suffer loss.
Pleading of Agreement
The defendant first complains that the plaintiffs have failed to plead an essential element of the relevant cause of action, namely that the defendant and the unknown conspirators conspired to employ unlawful means. He contends that there is no allegation of any agreement to employ unlawful means in the pleading of the alleged agreements or understandings.[8]
[8]See paragraphs [67] and [78] of the FASOC.
The plaintiffs contend that the FASOC makes it clear that the unlawful means conspiracy is premised on an agreement between the co-conspirators which was put into effect by engaging in unlawful acts intended to injure the plaintiffs, which it contends is contained in [67] and [68(b)(ii)].
The plaintiffs’ case for unlawful means conspiracy appears to be that:
(a)the relevant agreement or understanding was to procure the confidential information of Adani and Carmichael with a purpose of injuring the plaintiffs; and
(b)it was part of the agreement and/or the agreement was carried into effect by the procuring of confidential information by the defendant and the use of that confidential information to:
(i)make threats and/or demands against targeted contractors;
(ii)enter targeted contractors’ land to commit trespass;
(iii)unjustifiably and substantially interfere with targeted contractors’ land by engaging in the tort of nuisance; or
(iv)procure or induce employees or contractors of the plaintiffs to breach their contractual duty of confidence.
That is not, however, reflected in the FASOC as it stands.
Focussing on the Galilee Blockade Conspiracy, the plaintiffs rely in part on [67(a)], which pleads an agreement or understanding to procure or induce persons to disclose the plaintiffs’ confidential information. Agreeing to seek confidential information by procuring parties to breach a duty of confidence could be an agreement to engage in conduct amounting to unlawful means, however, there is confusion in the FASOC as to its inter-relationship with [68(b)(ii)] pleading as to how that is then said to be carried into effect and how the purpose of that agreement is to injure a party and how it itself caused damage, which I will discuss below. There is a further difficulty. Particulars of the agreement are provided but are confusing insofar as sub-paragraph (a) of the particulars to [67] alleges the agreement was reached orally or in writing, or partly orally and partly in writing, but no facts are pleaded supporting that agreement. In fact, upon clarification in oral submissions by Mr Gibson KC, it seems that the agreement is to be inferred. Paragraph (b) of the particulars, which is meant to be in the alternative, states the making of the agreement is to be inferred from, and is evidenced by, conduct or statements. They are not said to be alternative allegations, although that presumably must be the case. In particular, unlawful means conspiracy requires a level of particularity and precision in what is relied upon as to 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,[9] given the serious nature of the allegation.[10] It may be accepted that the best that can be done is for an agreement to be inferred from certain conduct and representations. There are difficulties in being able to plead an agreement where there is a clandestine arrangement, but as Bond J observed in Lee, even in that case:[11]
“… a plaintiff, who can be expected to be unable to plead the terms of an express agreement in the usual way, must at the least be able to plead and particularise the overt acts it intends to rely on to justify the inference that the agreement on which it relies was in fact made as it alleges.” (footnote omitted).
[9]Lee v Abedian [2017] 1 Qd R 549 at 570 [80(d)] per Bond J, citing with approval Ryan J in Elliott v Seymour [1999] FCA 976 at [97].
[10]Odtojan v Condon [2023] NSWCA 129 at [26]-[30] per Leeming and Kirk JJA.
[11][2017] 1 Qd R 549 at 567 [71].
However, in the FASOC, the particulars do not support the allegation that there is an agreement in the terms pleaded in [67(a)]. The particulars appear to only support the allegation that the other parties involved in the Galilee Blockade are parties to the agreement. There are no particulars supporting the allegation that the agreement was to procure confidential information.
While the plaintiffs rely on the same factual foundations to advance each type of conspiracy that would constitute the Galilee Blockade Conspiracy, and contend that if it isn’t one then it is the other, the elements of lawful means conspiracy are distinct from the elements of unlawful means conspiracy and the FASOC must identify which facts support which elements of each of the conspiracies. That distinction is accentuated by the “further, or in the alternative” in [67(b)] of the FASOC. In Lee v Abedian where Bond J identified the problem to be that:[12] “… he does so in a way which does not clearly distinguish between the two torts and this failure creates many difficulties, not least of which is for the defendants in understanding which facts are relied upon in support of which cause of action”. The same difficulty arises in relation to the FASOC. While the plaintiffs rely on [68] to identify the unlawful means, the FASOC in its present form does not resolve the difficulty.
[12][2017] 1 Qd R 549 at 570 [78].
The plaintiffs contend that the particularisation of “unlawful means” is found in [68]. As to the plaintiffs’ reliance on [68(b)(ii)] in support of the pleading of the first element of an unlawful means conspiracy, it pleads allegations as to how the agreement was to be carried out, not what was originally agreed. It is not sufficient to plead an agreement was put into effect by engaging in unlawful acts premised on an intention to injure the plaintiffs without pleading the agreement which was being put into effect. While sub-paragraphs (F), (G), (J) and (K) to [68(b)(ii)] do plead an allegation which supports the carrying into effect of the agreement pleaded in [67(a)], namely the procuring of employees or contractors to breach their contractual duty of confidence to the plaintiffs, the remaining allegations in [68(b)(ii)] do not, on their face, relate to the agreement pleaded in [67(a)] of the FASOC. It is not apparent whether the plaintiffs’ case is that the alleged agreement to disclose confidential information to the defendant was for use by the parties to target contractors and trespass onto their property or to interfere with the use of their land so as to commit the tort of nuisance or to use the disclosed confidential information to target contractors and threaten them unless they withdrew from negotiations or contracts with the plaintiffs or whether the actions against the targeted contractors pleaded to be unlawful means are independent of any agreement to procure persons to disclose confidential information to them. If that is the case, there is no agreement to engage in conduct amounting to unlawful means which has been pleaded. While Mr Gibson KC contends that the agreement pleaded in [67], and particularly [67(c)], just relates to the agreement and the character of that agreement as lawful or one to engage in conduct amounting to unlawful means, the pleading must identify the agreement to engage in conduct amounting to unlawful means. The way in which [68(b)(ii)] inter-relates with [67], and whether those matters are part of what is said to have been agreed or not, is opaque. Given the serious nature of the allegations, that is deficient.
The same complaint is made by the defendant in relation to the Information Conspiracy.[13] The same difficulties largely affect the pleading of the first element of conspiracy. The agreement pleaded in [78] does not make any distinction between the agreement for a lawful means conspiracy and the agreement to engage in conduct amounting to unlawful means. It refers to an agreement with the persons who disclosed some or all of the Information to be used by the persons associated with the Galilee Blockade to facilitate Direct Action against the plaintiffs and Targeted Contractors, pressure the Targeted Contractors to withdraw from contracts or negotiations with the Plaintiffs and otherwise cease to perform any of the plaintiffs’ work and frustrate the development of the Carmichael Mine and Rail Network. “Information” is defined in [43(b)] of the FASOC to be types of information which includes “Adani Confidential Information” and “Carmichael Rail Information”, which is not found to be confidential. “Direct Action” is defined in [41(c)] of the FASOC and includes actions which may or may not be unlawful. While the particulars in [78(b)] do plead matters from which an agreement may be inferred, they do not particularise what the unlawful means are that form part of any agreement to satisfy the first element of an unlawful means conspiracy.
[13]See paragraphs [78] and [79(b)(ii)] of the FASOC.
As to [79(b)(ii)], it does appear to narrow the unlawful means that are being relied upon, save that Direct Action is not necessarily conduct amounting to unlawful means although it could include that. It also suffers from the same deficiency as [68] in referring to the purpose “to be carried out by Direct Action against the Targeted Contractors by unlawful means” which appears to be focussed on the implementation of what was pleaded in [78] as being agreed, rather than being part of the agreement itself. As submitted by the plaintiffs, given [78] is only referring to the disclosure of Information, which is not on its face unlawful, it is not the providing of the Information which is the unlawful thing to be done. Rather, what must be the subject of the agreement is what is agreed to be done with the Information that is unlawful. Paragraph [78] does not go far enough and [79(b)(ii)] does not fill the gap. The pleading of what is the subject of the agreement to engage in conduct to use unlawful means must be made clear.
In the course of oral submissions, the defendant contended that the fact that the agreement in relation to the Galilee Blockade Conspiracy is pleaded in [67] as having been made between June 2017 and mid-September 2020 adds to the ambiguity of the pleading. That is even more pronounced when one has regard to the fact that sub-paragraph (b)(iv) of the particulars to [67(c)] provides that the agreement or understanding is to be inferred from representations made in January 2015. Mr Gibson KC submitted that the matter could be remedied by adding the words “or agreements or understandings” and accepted there might be different agreements at different points in time. He further submitted that, given the defendant was the constant party to any agreement, it doesn’t matter if there are a number of agreements nor does the identity of the parties matter. That cannot be accepted insofar as, to have a meeting of minds and to have an agreement, you must at least identify who it is, even if not by name, that the meeting of minds is with even if, as in this case, it is by inference. The identity of the other parties would arguably have a flow-on effect as to whether the agreement was in fact carried into effect. At least, the particulars in [67] suggest that the other parties to the agreement are people involved in the Galilee Blockade. Proper consideration of the agreement and whether it is singular or there are a number of them needs to be given any repleading of the claim.
Although it is evident from the pleading in [78] that the other parties to the agreement for the purpose of the conspiracy are those who agreed to provide Information to the defendant through the Galilee Blockade, which is pleaded to occur over June 2017 up until mid-September 2020, the form of allegation is different insofar as it pleads “at various times” and, from the form of the pleading, alleges a new agreement with each person who agreed to or did provide information.
The complaint as to the FASOC failing to adequately plead the element of the agreement for an unlawful means conspiracy, insofar as it doesn’t plead the agreement to employ unlawful means, is established.
Pleading of Purpose of the Agreement
The second complaint made by the defendant is that the pleading is deficient because, for both the lawful and unlawful means conspiracies, there is no allegation that the alleged conspirators all shared a common intention. For lawful means conspiracy, the intention to injure must be the sole or dominant purpose of the conspiracy. As for unlawful means conspiracy, the intention to injure must be one of the purposes of the conspiracy.
The defendant complains that the pleading does not particularise the state of mind required, namely the purpose. He also contends that there is a disconnect in the pleading insofar as, assuming the particulars relied upon for “sole or predominant purpose” to injure the plaintiffs are also the various matters in the particulars of [68], the acts could be for the purpose of reducing climate change rather than injuring the plaintiffs.
The plaintiffs contend that, while the words “common intention” were not specifically used, they were not required to be. Bond J in Lee v Abedian stated that “[b]oth torts require the plaintiff to prove that a purpose of the conspiracy was to injure the plaintiff. For a lawful means conspiracy, however, the plaintiff must prove that the purpose of injuring the plaintiff was the sole or predominate purpose of the conspiracy”.[14] However, in the case of an unlawful means conspiracy, “it will suffice for a plaintiff to prove that causing injury to the plaintiff was a purpose of the conspiracy”.[15]
[14][2017] 1 Qd R 549 at 567 [73], with Bond J’s original emphasis replicated.
[15][2017] 1 Qd R 549 at 567 [73], with Bond J’s original emphasis replicated.
The relevant purpose for the lawful means conspiracy and unlawful means conspiracy is pleaded to be that of the “Galilee Blockade Conspiracy” rather than being pleaded by reference the purpose of the defendant and the “Unknown Conspirators”. While it is a confusing way to plead the allegation, it is not the subject of specific complaint by the defendant and the meaning of the allegation is clear enough that it is, as the plaintiffs clarified, referring to the agreement pleaded in [67] even though it is not defined as such.
As to the matters relied upon for the relevant purpose to be inferred, the plaintiffs’ particulars of [68(a)] include cross-references to various threats and demands and representations pleaded in [60]. Neither party went through each of the matters relied upon in any detail, however, each gave examples in support of their contention. At least some of those statements pleaded in [60] are sufficient to raise an inference of intent or desire to specifically injure the plaintiffs. There is an arguable inference that the intent was to injure Adani and the Carmichael Mine, albeit through preventing them from being able to undertake work in relation to the mine or the associated rail network,[16] rather than to injure mines more generally or to prevent climate change with the knowledge it might injure either of the plaintiffs. I consider that they are capable of supporting the purpose pleaded. Whether the plaintiffs will be successful in proving it at trial is another matter. It may be that, as the defendant contends, when evidence is presented, the court will find that the purpose of the defendant and persons said to be involved in the conspiracy is no more than an intent to stop mines as part of a campaign to reduce anthropogenic climate change, even if they had knowledge their actions would injure the plaintiffs. In which case, the plaintiffs will not succeed.[17] However, that will be a matter for trial. I do not think that the pleading is deficient in its current form as to the purpose contended for by the defendant such that it should be struck out.
[16]See eg paragraphs [60(c)(ii)], [60(d)(ii)] and [60(e)(iii)] of the FASOC.
[17]McKernan v Fraser (1931) 46 CLR 343 at 362 per Dixon J, with whom Rich and McTiernan JJ agreed; Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 445 per Viscount Simon LC.
However, to the extent the same particulars are to be relied on as to whether the conspiracy was entered into for the “sole or predominant purpose” required to be established for lawful means conspiracy and “a purpose” required to be established for unlawful means conspiracy, the pleading should be amended to make that clear, as presently no particulars are provided for [68(b)(i)] of the FASOC.
As to the Information Conspiracy in [79], that was not addressed in any detail although the same complaint is made as to the absence of pleading “common intention”. The pleading is in the same form as [68] and, while the form is clumsy, I do not find it is deficient such that it should be struck out for the same reasons as above.
Pleading of Causation and Loss

The final complaint in the written submissions of the defendant is that causation is pleaded in [69] and [73] of the FASOC in a rolled up fashion with the implementation of each type of conspiracy, both lawful means conspiracy and unlawful means conspiracy, and the loss and damage which it is alleged the plaintiffs suffered by reason of such implementation. Fundamentally, the defendant contends that the plaintiffs do not plead that the loss and damage allegedly caused by the unlawful means conspiracy was caused by the alleged unlawful acts and, similarly, that the plaintiffs do not plead that the loss and damage allegedly caused by the lawful means formulation of each conspiracy was caused by the carrying of the agreement into effect. The pleading combines the loss and damage for both types of conspiracies, with the plaintiffs relying upon both the lawful and unlawful conduct as being causal of the alleged loss. According to the defendant, having regard to the dicta of Bond J in Lee v Abedian, the rolled-up pleading of causation is inadequate, embarrassing and liable to be struck out. The defendant contends that the plaintiffs’ tortious conspiracy pleadings in the FASOC are affected by the same vice identified by Bond J in Lee v Abedian, namely that the pleading “does not clearly distinguish between the two torts and this failure creates many difficulties, not least of which is for the defendants in understanding which facts are relied upon in support of which cause of action”.[18]
[18][2017] 1 Qd R 549 at 570 [78].
In oral submissions, however, Mr Hodge KC complained further in relation to the form of pleading in [69] insofar as it pleads “Pennings, with the agreement or understanding of the Unknown Conspirators, engaged in conduct pleaded in paragraph 41 to 45 and 60 above”. While it is pleaded to be “[i]n furtherance of the Galilee Blockade Conspiracy”, the defendant contends that the language of the pleading suggests that there is a different agreement from that pleaded earlier in [67] and [68]. The further difficulty goes to the temporal element complained of in relation to [67] because conduct said to be in furtherance of the conspiracy occurred at the same time as the conspiracy was said to arise. This is apparent from [41], which relies on statements between January 2017 and mid-September 2020. Similarly, [42] refers to conduct in the period January 2017 until June 2018 as part of the Infiltration Campaign, while [43] and [45] refer to the period between June 2017 and mid-September 2020, but also refer to requests for Confidential Information and Information. The defendant contends that suggests an infinite number of conspiracies came into existence over those periods and an infinite number of possibilities as to causation.
As to [69(b)], which pleads that “Pennings and the Unknown Conspirators engaged in the conduct pleaded in paragraphs 62 to 62B above”, the defendant contends that the pleading creates a number of difficulties. First, the cross-reference to [62] refers to a number of acts which are said to be “[i]n accordance with the Threats”, which refers to matters pleaded earlier in the tortious intimidation case, not the Galilee Blockade Conspiracy case. Paragraphs [62A] and [62B] delineate certain conduct as being unlawful because it constituted the torts of trespass and nuisance respectively, rather than being acts carried out “[i]n furtherance of the Galilee Blockade Conspiracy”.
The pleading of causation and loss is made in [73], whereby it is alleged that by the matters pleaded in [67] to [69]:
(a)the Galilee Blockade Conspiracy was executed in whole or in part;
(b)Adani has suffered loss and damage; and
(c)Carmichael Rail has suffered loss and damage.
The alleged loss and damage relies upon the matters pleaded in [63] and [66] in respect of Adani and [65] in respect of Carmichael Rail. No distinction is made between lawful conspiracy and unlawful conspiracy.
The plaintiffs contend that the same factual foundation is relied upon to advance each type of conspiracy and that the different elements become relevant only when the court decides whether the conspiracy that is proved it is a lawful or unlawful conspiracy. According to the plaintiffs, there is an obvious distinction between the alternative formulations of the conspiracy. As an alternative to the intimidation case, the defendant, together with his co-conspirators as part of the Galilee Blockade, is said to have engaged in the conduct pleaded in [62] which was unlawful as pleaded in [62A] and [62B] of the FASOC. By reason of that conduct, the plaintiffs have suffered loss and damage as pleaded in [73], which relies on [63] to [66] of the FASOC. The plaintiffs contend that, unlike the case in Lee v Abedian, the material facts relied on to show the necessary causally relationship are clearly identified and the same material facts are relied on to justify each of the lawful and unlawful conspiracy cases. The plaintiffs contend the difference between them is the degree of proof requirement and their discrete elements but not the factual foundation.
As to the question of causation, the defendant complains that the pleading of causation for both lawful means conspiracy and unlawful means conspiracy are bundled together and the same pleading method has been used for loss and damage. In the case of lawful means conspiracy, the pleading must plead that the agreement or understanding has been carried into effect by the defendant’s conduct and that conduct caused the loss and damage to the plaintiffs. In the case of unlawful means conspiracy, what is required to be pleaded is that the agreement or understanding was carried into effect by the agreed unlawful acts and those unlawful acts caused loss or damage to the plaintiff. As Bond J discussed in Lee v Abedian, the latter is more onerous than the former.[19]
[19][2017] 1 Qd R 549 at 567 [70].
The plaintiffs contend that they have not failed to distinguish between lawful and unlawful conduct and mixed the two together in pleading causation and loss and damage. Rather, their contention is that they have pleaded conduct and not characterised it as lawful or unlawful, which will be a matter for the court at the end of the day. The difficulty with the contention by the plaintiffs is that they are acting on the basis that, at the end of the trial, it is for the court to determine what is lawful and unlawful when there is not a clear delineation between the two in the pleading. For instance, [69(a)] relies on [43] which refers to conduct in the “Dob In” campaign which involved both the procuring of Confidential Information[20] and Information.[21] Paragraph [69(b)], however, refers to conduct which is defined as being unlawful conduct by virtue of the fact it constituted trespass or nuisance. It is not a matter of simply a different degree of proof. It requires the identification of those acts carried into effect by the commission of agreed unlawful acts as part of an unlawful means conspiracy. Plainly, what is pleaded in [67(b)], which is the procuring of Information as opposed to Confidential Information, is not unlawful.
[20]See paragraph [43(a)] of the FASOC.
[21]See paragraph [43(b)] of the FASOC.
It is not pleaded in [69] that the acts referred to in sub-paragraphs (a) or (b) were those that were part of the agreement or understanding pleaded in [67], nor can one relate them back to what is pleaded in [67] or [68] because it cross-refers to different conduct which is relied upon and [69(a)] appears to raise a different agreement. Moreover, the acts relied upon in [69(a)] combine acts which are lawful and arguably unlawful. It is confused and embarrassing. It is simply not an answer for the plaintiffs to say that [69] is just pleading what was done to give effect to the conspiracy when it is not apparent on the face of the pleading that it relies on conduct giving effect to what is pleaded as being part of the agreement or that the agreement was carried into effect by the agreed unlawful acts. The acts relied upon in [69] are, at least on their face, different acts from those pleaded in [68], even if one accepts those were part of the pleaded agreement.
Causation and loss is pleaded globally in [73] for both lawful and unlawful means conspiracy. While it is said that the same factual underpinning is relied upon for each conspiracy, the more onerous requirements for unlawful means conspiracy requires those agreed acts said to amount to unlawful means to be identified, not only for the purpose of the agreement but for the purpose of the agreement being said to be carried into effect by the commission of the unlawful acts and those unlawful acts causing damage to the plaintiffs. It cannot be left to the end of the trial.
As was said by Bond J in Lee v Abedian, for unlawful means conspiracy what is required is:
(a)“a specific identification of the material facts relied on to show the necessary causal relationship between the agreed unlawful conduct and the loss and damage claimed”;[22] and
(b)“the necessary causal relationship is the conspiracy was carried into effect by commission of the agreed unlawful acts and those agreed unlawful acts caused damage to the plaintiff”.[23]
[22][2017] 1 Qd R 549 at 571 [81(b)].
[23][2017] 1 Qd R 549 at 571 [81(c)].
The separate requirements for pleading causation and loss in relation to lawful conspiracy have been identified above in the discussion of Lee v Abedian. As Bond J discussed in Lee v Abedian, it is one of the key points of distinction between the two types of conspiracy.[24]
[24][2017] 1 Qd R 549 at 568 [75] and 574 [85].
While it is open to the plaintiffs to plead alternative cases, what is not permissible is to plead the acts and loss and damage together such that it is impossible to disentangle what are said to be agreed unlawful acts relied upon and how they cause the plaintiffs loss and damage. The distinct elements necessary to constitute the respective torts must be clearly defined and pleaded. As it stands, the pleading is confused and deficient and should be struck out.
The pleading as to causation and damage fails to properly plead the respective cases for lawful means conspiracy and unlawful means conspiracy and is so deficient that it does not presently disclose a reasonable cause of action and would prejudice any trial such that it should be struck out.
Further ambiguity is created by the pleading that the agreement and the conduct said to be furtherance of the conspiracy traverses an extended period of time, where there are acts relied upon to carry the agreement into effect which occur at the same time the agreement is said to have arisen. Given the extended period of time, and the possibility of numerous conspiracy agreements, causation is ill-defined and leaves the defendant in a position of having to face a number of different possibilities which are not articulated on the pleading. As was also said by Bond J in Lee v Abedian:[25]
“The defendants are entitled to have the plaintiff pinned down to a causation hypothesis which is not characterised by imprecision and ambiguity and which, at least arguably, establishes the requisite causal connection between the implementation of the conspiracy and the suffering of loss. If there is more than one causation hypothesis, then the statement just made must apply to each one.”
[25][2017] 1 Qd R 549 at 571 [81(f)].
Although damages are not claimed in relation to the Information Conspiracy, the pleading still must plead the material facts to constitute a reasonable cause of action. It suffers the same ill of not separating causation in terms of causation and potential loss that will be suffered for lawful conspiracy or unlawful means conspiracy in [80] to [82] such that those allegations should be struck out.
It is of course true, as the plaintiffs submit, the present case turns on its own facts and that dictates what must be pleaded. However, to the extent that reliance is placed on Lee v Abedian, it is by reference to principles and what are elemental pleading requirements. While the plaintiffs contend, in this case, it is a matter of characterising the same facts as either lawful or unlawful, rather than a mixture of lawful and unlawful conduct as in Lee v Abedian, the relevant elements have not been articulated for each type of conspiracy. While the same facts can be relied upon to satisfy the lawful means conspiracy and unlawful means conspiracy, the pleading fails to adequately identify the relevant elements by reference to those facts.
Even though the defendant has pleaded to the allegations of conspiracy in his Amended Defence in relation to the previous statement of claim, it is evident that, until the pleading does plead each element of lawful means conspiracy and unlawful means conspiracy with sufficient specificity, it will prejudice the trial.
The defendant is entitled to have the plaintiffs identify what were the agreed unlawful means, how those unlawful means were carried into effect by unlawful acts and how those unlawful acts caused loss and damage. As was stated by Bond J in Lee v Abedian, what is required for a proper pleading is that there is specific identification of the material facts relied on to show the necessary causal relationship between the agreed unlawful conduct and the loss and damage claimed.[26]
[26][2017] 1 Qd R 549 at 571 [81(b)].
Notwithstanding the urging of the defendant, I am not persuaded the plaintiffs cannot properly plead an unlawful means or lawful conspiracy case. This is the first time that complaints in relation to the pleading of the claim have been raised by the defendant, notwithstanding the claim has existed in some form in the statement of claim since the proceedings were instituted. The defendant pleaded to the case of conspiracy in his Amended Defence even though the pleading of conspiracy was largely affected by the deficiencies of which the defendant now complains. It is not evident that the case of conspiracy sought to be relied upon by the plaintiff is so deficient that the plaintiffs cannot adequately plead a case. Many of the complaints arise out of the manner in which the claim has been pleaded in what is a very technical claim. Notwithstanding I did not consider the pleading of purpose was such that the pleading should be struck out, given the deficiencies I have found in relation to the pleading of agreement, the carrying into effect of the agreement and the pleading as to causation and damage, all of which are so deficient as to justify the strike out of the pleading, I will strike out the whole of Galilee Blockade Conspiracy and Information Conspiracy pleadings and give liberty to replead.
Abandoning Confidential Information Conspiracies Case
The defendant complains that the abandoning of the Confidential Information Conspiracy claim without little explanation demonstrates that the viability of the allegations hinged upon the plaintiffs obtaining through disclosure evidence of the alleged conspiracies having occurred. They contend that this suggests that:
(a)at the time these allegations were pleaded, the plaintiffs did not have available to them a sufficient evidentiary foundation for making and proceeding upon these allegations; and
(b)the plaintiffs nonetheless decided to include these allegations in their pleading on the basis that the inclusion of the allegations would enable the plaintiffs to use the compulsory processes of disclosure to investigate whether these allegations were supported by a sufficient evidentiary basis.
In his written submissions, the defendant contended that these features of the plaintiffs’ conduct “heighten the concern that the plaintiffs’ commencement and pursuit of this proceeding against the defendant involves an abuse of process”. I will consider this further below.
Intimidation
The plaintiffs plead that the defendant has engaged in intimidation such that he is liable to pay damages for the tort of intimidation. The relevant paragraphs of the pleading are at [60] to [66A] of the FASOC.
By way of overview, the pleaded allegations are that:
(a)between January 2017 and mid-September 2020, the defendant published statements through various mediums to the effect that, “unless the Targeted Contractors cease to withdraw from contracts (sic) or negotiations or otherwise cease to perform any of the Plaintiffs’ Work”, which is defined as “Demands”, “the Targeted Contractors would be the subject of Direct Action by persons associated with the Galilee Blockade” which is defined as “Threats”;[27]
(b)the defendant’s conduct in publishing and communicating each of the Demands and Threats was done with the intention of injuring the plaintiffs;
(c)in accordance with the threats, protesters obstructed access to various sites associated with Targeted Contractors;
(d)the conduct as particularised was unjustified entry on to the said Targeted Contractors’ land, which constituted the tort of trespass and was unlawful;
(e)the conduct as particularised was an unreasonable and substantial interference with the said Targeted Contractors’ enjoyment of their land, which constituted the tort of nuisance and was unlawful;
(f)as a result of the Demands and Threats, targeted contractors have not undertaken negotiations or have terminated negotiations with the plaintiffs and their contractors, who are particularised as being Downer and Greyhound;
(g)it is alleged as a result of the pleaded conduct that both plaintiffs have suffered loss and damage; and
(h)it is further alleged that, unless restrained, the defendant will continue to make threats against Targeted Contractors if they do not accede to his demands and the plaintiffs will suffer loss.
[27]See paragraph [60] of the FASOC.
The defendant complains that the pleading is deficient and should be struck out.
The elements of the cause of action for tortious intimidation relevant to the present case are that:
(a)the defendant intends to injure the plaintiffs;
(b)in order to do so, the defendant threatens a third party that an unlawful act will be committed against them unless they refrain from dealing with the plaintiffs;
(c)the third party was induced by the threat or demand to refrain from exercising its legal rights to deal with the plaintiffs; and
(d)the plaintiffs have suffered loss because of the third parties’ conduct in refraining from dealing with the plaintiffs.[28]
[28]Construction, Forestry, Mining & Energy Union v Boral Resources (VIC) Pty Ltd (2014) 45 VR 571 at 575-8 [23]-[36] per Maxwell P, Neave, Redlich and Beach JJA and Kaye AJA; Adani Mining Pty Ltd v Pennings [2020] QSC 275 at [32] per Martin J.
In the case of injunctive relief, it is not necessary that the person threatened submitted to coercion.[29]
[29]Yap v Matic [2022] WASC 181 at [132] per Solomon J, quoting Parker J in Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 87 at 98.
The defendant complains that the pleading is deficient in three different ways:
(a)first, that the FASOC does not disclose a clear and coherent pleading of causation necessary to support a cause of action in tortious intimidation;
(b)secondly, some aspects of the plaintiffs’ claimed loss are vexatious, harassing and comprise an abuse of process; and
(c)thirdly, the FASOC pleads irrelevant matters, raises false issues and is apt to be struck out as unnecessary, frivolous, prejudicial or delaying.
Causation
The defendant contends that the plaintiffs are required to prove two levels of causation:
(a)the plaintiffs must show that the defendant’s demand and threat caused the third parties’ decision to refrain from dealing with the plaintiffs; and
(b)the plaintiffs must show that the claimed loss was caused by the third parties’ conduct in refraining from dealing with the plaintiffs because of the defendant’s demand and threat.

The plaintiffs submit the defendant’s complaint is a technical one that can be addressed by removal of the reference to [62] from [65] of the FASOC and that their case as to causation is:
(a)that demands were made that targeted contractors cease dealings with the plaintiffs;
(b)the threats made were to engage in unlawful conduct, which is evidenced by the unlawful acts of direct action pleaded in [62] of the FASOC; and
(c)because of the threats and demands, as pleaded in [63], targeted contractors have ceased negotiations with the plaintiffs.
Paragraph [63] of the FASOC particularises Downer and Greyhound as those targeted contractors who have not undertaken negotiations or who have terminated their negotiations with the plaintiffs or their contractors in response to and because of the Threats and Demands pleaded in [60] of the FASOC.
Paragraph [65] pleads that Carmichael Rail has suffered loss and damage by reason of Greyhound’s cessation of negotiations with the company responsible for construction of earthworks and structures for the rail network, BMD, and that under Carmichael Rail’s contract with BMD, Carmichael Rail was responsible for the additional costs incurred by BMD for having to negotiate and engage with a different entity. That loss is quantified at $37,579.30.
Paragraph [66] pleads that by reason of Downer’s cessation of negotiations in November 2017, Adani had to undergo a second tender process to identify and engage a suitable alternative drilling contractor which is estimated to have resulted in a loss of $17,450,674.00. The defendant contends that, because the plaintiffs rely not only on the Threats and Demands pleaded in [60] and the alleged decisions by Greyhound and Downer to terminate negotiations with BMD and Adani in [63] but also the Direct Action itself said to have been taken in accordance with the Threats pleaded in [62] of the FASOC, the latter is “destructive of the second level of causation”. That is because the loss is alleged to have been caused by a combination of the alleged Threats and Demands and the decision by Greyhound and Downer to terminate negotiations, as well as the conduct of protesters said to have been carried out in accordance with the Threats. As the plaintiffs plead they are all, in combination, causative of the loss suffered by the plaintiffs, that, according to the defendant, has the effect of negativing the existence of the second essential element of causation, namely that the loss was caused by Demands and Threats and the refraining from negotiations as a result of those Demands or Threats.
The plaintiffs contend that the reliance on Direct Action in [62] of the FASOC is because it is relevant to the view reached by Targeted Contractors that the defendant and Galilee Blockade was serious about their threats and the likelihood that further threats would be carried out if demands weren’t met. They contend, even if the court were to accept the defendant’s complaint, it would simply be a matter of removing the reference to [62] from [65] of the FASOC

given none of the conduct in [62] involves Greyhound. At the hearing they contended however that the conduct in [62] with respect to Downer is relied upon as part of the causal chain.
The plaintiffs contend, however, that the taking of action consistent with the Threats and Demands made is relevant to the injunctive relief sought. Paragraph [62] is relied on in the pleading to support injunctive relief in [66A(a)(ii)] of the FASOC.
Direct action taken by the Galilee Blockade prior to the making of Threats and Demands by the Defendant could be evidence which supports a third party being induced by those Threats and Demands to refrain from further negotiations with the plaintiffs. While it may be possible to frame a case by reference to such conduct in a temporal sense, that has not been done here. Most of the events pleaded in [62] in fact occurred after the time Downer had stated it was withdrawing from negotiations and are therefore irrelevant in any event. The further difficulty with [62] is that it refers to actions in which the defendant is not involved and there is no basis of attribution in the pleading.
The relevant causal link required in terms of loss is to the ceasing of negotiations by Downer because of Threats and Demands made. The plaintiffs in their submissions have only sought to identify the evidential relevance of the matters pleaded in [62] and not identify how they are relevant to the causation of loss, although Mr Gibson KC in his oral submissions contemplated that the Demands and Threats were the basis of the protester activity pleaded in [62] although it has not been particularised in that way. The reference to [62] in [65] is therefore irrelevant to causation and the pleading is embarrassing. The reference to [62] should be struck out in [65]. That is also relevant to the reference in [66]. Given the other difficulties I have identified in relation to [63] it would be appropriate to strike out the whole of [65] and [66] with liberty to replead.
Whether the plaintiffs’ claim for loss is vexatious, harassing and manifestly groundless
The defendant complains that there are features of the plaintiffs’ claimed loss from which it can be inferred that the plaintiffs’ pleading and pursuit of this claim for tortious intimidation is vexatious, harassing and represents an abuse of process.
While the defendant does not seek summary judgment, it has raised a number of evidential weaknesses in the plaintiffs’ case which it contends are relevant to demonstrating the claim is an abuse of process or vexatious.
In that respect, the defendant relies upon the decision of Jackson J in Parbery v QNI Metals Pty Ltd and his Honour’s discussion about the scope of r 171 of the UCPR, where his Honour stated the court is not disentitled from examining the cause of action for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious.[30] In particular, the court is not excluded from an examination of evidence relevant to the cause of action, which may still be looked at by the court for the purposes a strikeout action, notwithstanding the provisions with respect to summary judgment. In particular, his Honour noted the wider statutory context of r 171 and its relationship with r 5 of the UCPR.
[30](2018) 131 ACSR 27 at 51 [146].
As to the allegation that Greyhound terminated its negotiations with BMD because of the Demands and Threats made, as pleaded in [63] of the FASOC, the defendant contends that:
(a)A letter of 28 January 2020, relied upon by the plaintiffs, does not support the allegation made. The letter of 28 January 2020 from Greyhound to BMD, referred to in sub-paragraph (d) of the particulars, identifies an article in the Guardian Australia about Greyhound’s involvement in the Carmichael Mine and states that “Subsequent media reports and a significant social media response have had an adverse impact on the consumer retail part of our business and have impacted the perception of the Greyhound brand in the market”.[31] The letter stated that, as a result, Greyhound was suspending negotiations with BMD.
(b)A Greyhound media release dated 28 January 2020, relied upon in sub-paragraph (e) of the particulars, does not support the allegation made. That article referred to Greyhound having received numerous messages in relation to peoples’ thoughts “both for and against the Carmichael Rail Network and Adani Carmichael project” and that Greyhound had “decided to not enter into a contractual agreement with BMD to service construction of the Carmichael Rail Network”.[32]
(c)In [63(i)(iv)], the Demands and Threats which are pleaded as having led Greyhound to terminate negotiations with BMD included a letter sent from Galilee Blockade to Greyhound on or about 23 January 2020 of the kind pleaded in sub-paragraph (f) of the particulars to [60], which is a letter requesting the Targeted Contractor to withdraw from inter alia any proposed contractual relationship with the plaintiffs and further providing that the Targeted Contractor would be subject to Direct Action on their worksites, with such action escalating over time, until the Targeted Contractor made the commitment never to assist in the construction of the mine or rail network. The further matter relied upon in [63(i)(iv)] was a social media post to the Galilee Blockade webpages headed “BREAKING: GREYHOUND IS NOW WORKING ON ADANI’S CLIMATE-WRECKING COAL PROJECT” posted on or about 24 January 2020, which is not pleaded as one of the Demands or Threats made in [60] of the FASOC.
(d)The amount of loss claimed in respect of Greyhound, which is said to be $37,579.30, “is so insignificant that it could not rationally justify the ongoing pursuit of this litigation”.
[31]Affidavit of KL Peacock affirmed 28 January 2024 at KLP-67.
[32]Affidavit of KL Peacock affirmed 28 January 2024 at KLP-60.
The defendant contends that the inconsistency on the face of the FASOC is sufficient to strike out the pleading because it is embarrassing. While he submits that it is difficult to see how it can be rectified in light of the Greyhound correspondence and media release as to the reasons for withdrawal, it was not submitted that it was incapable of being fixed.
As to the pleading that Downer terminated its negotiations with Adani because of the Demands and Threats pleaded in [63] of the FASOC, the parties made a number of contentions:
(a)Sub-paragraph (b) of the particulars to [63] pleads that Downer advised in November 2017 that it was withdrawing from negotiations and would not enter into a mining services agreement with Adani. The defendant, however, identifies various public statements by Adani which are said to be directly inconsistent with the allegation that the negotiations were cancelled by Downer and which attribute other reasons to the cancellation, including a press release made on 18 December 2017 that:[33]
“… Following on from the NAIF veto last week, and in line with its vision to achieve the lowest quartile cost of production by ensuring flexibility and efficiencies in the supply chain, Adani has decided to develop and operate the mine on an owner operator basis.
Adani and Downer have mutually agreed to cancel all letter of Awards and Downer will provide transitional assistance until 31^st March 2018. …”
(b)Affidavit evidence was provided by the solicitors for the plaintiffs, Mr Wilson and Mr Dowd, which depose to conversations with Mr Vora, the Chair of Adani, and Mr Harding, a former director of Downer. Mr Vora stated to Mr Wilson on 30 October 2023 that the CEO of Downer had informed him at a meeting in November 2017 words to the effect that Downer would not be proceeding with any further negotiations because its “association with Adani” was “causing it to be targeted by protesters…”.[34] Mr Wilson deposed to Mr Vora having explained to him that the media release of 18 December 2017 was made “to deflect public attention from the Downer withdrawal”.[35] The defendant submits the notion that a media release would have been issued stating a reason contrary to the real reason for Downer’s withdrawal lacks credibility. The defendant is also critical of the fact that Mr Vora’s evidence is hearsay and that these matters weren’t disclosed before Martin J in the hearing of the interlocutory injunction.
(c)Mr Dowd deposed to an exchange between Mr Harding and himself as to Downer’s position. Mr Harding referred to annual general meeting of Downer having been stormed by protesters, who threatened board members, and that after the AGM, the board had meetings to consider the impact on Downer of continuing its business with Adani. He stated “[the protesters] were threatening to shut down BHP sites if we didn’t agree to cease dealings with Adani”.[36] He stated that it was a big issue at the time. Minutes of the board meetings were taken and at those board meetings “no one was in favour of proceeding with Adani”.[37] The defendant submits that it is telling that Mr Dowd, who spoke with a board member, does not depose as to a belief that what was said to him was true. The defendant further submits that Mr Harding’s recollection of the meeting is not supported by a video recording taken and that there was a lack of disclosure of any documents supporting the board meetings and the suggestion that minutes were taken.
(d)The defendant submits that, despite the plaintiffs having sought non-party disclosure in 2022, there were no documents which disclosed that the basis of Downer’s decision to withdraw from negotiations with Adani was due to protester activity. The defendant also contends that it is only in Mr Wilson’s affidavit of 26 October 2023 that he deposes as to his firm’s dealings with Downer not having finalised and that counsel had been instructed to review the adequacy of Downer’s disclosure. Mr Wilson did not provide any explanation as to why this has not been undertaken much earlier.
(e)The defendant points to the fact that no document has been disclosed by Adani in support of the contention that Downer’s withdrawal was due to Demands and Threats by the Galilee Blockade protesters.
(f)Paragraph [63(h)(iii)] of the FASOC identifies the Demands and Threats that led to Downer terminating negotiations with Adani as being those contained in webpages and articles particularised in [60], namely sub-paragraphs (a)(i), (a)(xi), (a)(xii), (c) and (e). The first point made by the defendant is that no material facts are pleaded to support an inference as to Downer’s state of mind. There is no allegation that Downer read the relevant material contained in the websites or articles as to what the defendant said to journalists. There is also a disconnect in terms of time, which is not necessarily fatal where the relevant Demands and Threats are said to have occurred between January and March 2017, whereas the withdrawal from negotiations by Downer did not take place until November 2017. The defendant submits that the plaintiffs cannot plead facts from which such an inference could be drawn because the evidence outlined above cannot support it and that, as put by Mr Hodge KC in oral submissions, “the universe of evidence they do have is directly inconsistent with what they plead”. The evidence the plaintiffs do have, which is the evidence from conversations with Mr Vora and Mr Harding, do not support any connection between those Demands and Threats relied upon in the FASOC and the decision to terminate. Rather, they reference protester activity against Downer as being the reason for the withdrawal.
[33]Affidavit of C Wilson filed 2 November 2023 at [34].
[34]Affidavit of C Wilson filed 2 November 2023 at [29].
[35]Affidavit of C Wilson filed 2 November 2023 at [38].
[36]Affidavit of DJ Dowd filed 2 November 2023 at [15]-[17].
[37]Affidavit of DJ Dowd filed 2 November 2023 at [15]-[17].
According to the defendant, the evidence of the plaintiffs, given through Mr Wilson and Mr Dowd, is unsatisfactory and supports a view that there is no reasonable basis to believe that the media release in December 2017 as to the basis upon which negotiations were cancelled was untrue. It asserted that the fact the application was interlocutory is not a sufficient explanation for the scant state of the evidence and, in that respect, relied upon the statements of Derrington J in Jonker v Thomas International Ltd that:[38]
“[27]It can be accepted that where the question is whether the pleading discloses a reasonable cause of action or defence, the Court need only consider the allegations in the pleading… That is because on an application of that nature, which concerns whether the pleading can succeed as a matter of law, the Court assumes the truth of the allegations made and draws all the necessary inferences in favour of the non-moving party. That approach does not apply where the question is whether the pleading is likely to cause prejudice, embarrassment or delay in the proceedings or might otherwise be an abuse of process.
[28]On an application such as the present, it does not appear that the material which the court might consider is as limited as Counsel for Thomas International suggests. Where it is alleged that all that the party’s pleading has done is to make allegations which are wholly without substance and unable to be particularised, it would be an odd thing if, on an application to strike out the pleading (or on the usual cross-application for discovery before particulars are provided), the non-moving party were unable to adduce evidence of the existence of a good cause of action or defence. In such situations the party defending the application to strike out (or seeking to obtain discovery prior to providing particulars) ought to adduce what evidence it can to indicate that it has or, perhaps, believes that it has, a good cause of action or defence as the case may be…” (in-text citations omitted).
[38][2017] FCA 1397 at [27]-[28], which was referred to by Flanagan J in Chan v Macarthur Minerals Ltd [2019] QSC 143 at [43].
In cross-examination Mr Dowd deposed to some attempted communications after his discussion with Mr Harding through Mr Regan, a solicitor at Downer, but that he could not pursue those communications because Downer appointed Corrs Chambers Westgarth to act on their behalf. No attempts have been made by his firm to communicate with Corrs Chambers Westgarth, but he is aware that the General Counsel of Adani, Mr Napa, had attempted to contact Mr Regan in the later months of 2023.
The defendant contends that, even if the evidence is sufficient to contradict the media release of December 2017 for the purpose of this application and there is a basis for the plaintiffs having or believing they have a proper basis for pleading that the negotiations with Downer were terminated by Downer because of the events of Direct Action, the allegation does not support the plaintiffs’ pleaded case because:
(a)the Demands and Threats particularised in sub-paragraphs (a)(i), (a)(xi), (a)(xii), (c) and (e) of the particulars to [60] of the FASOC, which are said to have caused Downer to terminate its negotiations, predated the time Downer withdrew, being between January and March in 2017;
(b)the plaintiffs do not plead that Direct Action, including the storming of Downer’s AGM, was the cause of negotiations being terminated;
(c)no mention is made in any of the matters pleaded to any connection between protester activity at Downer’s AGM and their withdrawal, as addressed at least in part by Mr Harding;
(d)in the disclosure made by the plaintiffs, which include non-party disclosure that Adani had obtained from Downer, none of the disclosure documents suggest that the withdrawal by Downer was due to protester activity undertaken by the Galilee Blockade and/or the defendant; and
(e)the loss suffered pleaded in [65] and [66] is not attributed to, amongst other things, the Threats and Demands made by the defendant and the protester activity.
According to the defendant, the pleading in relation to Downer’s conduct is embarrassing and an abuse of process because there’s no rational basis upon which they could say that Downer had withdrawn based on the things that have been particularised.
The defendant also complains that [60] and [62] of the FASOC plead irrelevancies insofar as it:
(a)pleads protester activity which is not concerned with Downer or Greyhound;
(b)goes beyond the time when Greyhound is said to have withdrawn in January 2020;
(c)only relies on the Threats and Demands pleaded at sub-paragraphs (a)(i), (a)(xi), (a)(xii), (c) and (e) of the particulars to [60] as being causally relevant to the alleged loss, such that the remaining list of alleged Threats and Demands in [60] is irrelevant; and
(d)pleads activity that is, on its face, not connected to the defendant.

The plaintiffs unsurprisingly oppose the orders sought by the defendant, contending that the defendant does not demonstrate why the cost orders should be set aside, particularly given that they were fully argued and there was no appeal. They contend that the question of the quantum of the cost assessment was a matter for a cost assessor and separate from whether the cost orders should be set aside.
As to the question of any intention to use the cost statements to oppress, bully and harass the defendant, Mr Wilson had deposed to the reason for delay being the obtaining of a cost assessment after he had inquired of the defendant’s lawyers whether they wished to bring an application for a stay of the cost orders “given [the defendant’s] ability to defend these proceedings will presumably be compromised or stifled by the enforcement of an assessed sum of cost”.[84] The plaintiffs contend that it is only after the plaintiffs incurred the significant costs in arranging for a professional cost assessment and the serving of the cost assessment that the defendant has chosen to raise any complaint and the delay in their doing so should weigh heavily against making orders sought by the defendant.
[84]Affidavit of C Wilson affirmed 1 November 2023 at [22], CW-9.
The plaintiffs contend that the confidentiality regime for disclosure and particulars remained relevant as the plaintiffs remain obliged to prove that confidential information was information sought by the defendant as part of his campaign and, as such, the fact that the plaintiffs no longer pursue the case based on the defendant having received confidential information does not change their position.
Summary of Findings
There are a number of very concerning issues in relation to the cost statements that have been issued on behalf of the plaintiffs, including:
(a)that the plaintiffs’ solicitor, partner of the firm who has day-to-day carriage of the matter with another partner, signed off the cost statement without apparently checking it in any detail, relying on the cost assessor;
(b)the first cost statement of $1.1 million for two applications, which each took less than a day, contained glaring errors, including the charging of 160% of counsel’s fees;
(c)that a second cost statement was issued for some $800,000 following the defendant raising initial issues in a letter of 3 October 2023 about the cost statement in relation to counsel’s fees;
(d)that the amended cost statement does not mark-up the amendments made to the cost statement;
(e), the amended costs statement appears to charge 90% of counsel’s fees, which does not accord with no order made by the court and breaks it up the cost three per statements providing to 30 percent of counsel’s fees in one and 60 percent of counsel’s fees in another;
(f)includes work in relation to further and better particulars which is not encompassed in any order;
(g)the plaintiffs’ solicitors instructed the assessor that costs be assessed on the basis of them being “front loaded” somewhat, given the nature of the relief sought and the technical nature of the arguments and asserting, for example, that the plaintiffs were required to review a large volume of material, which they sought to keep confidential, in order to make the applications. It is unclear how that could be justified, particularly where the applications included the plaintiffs seeking be relieved of making full disclosure and deferring the provision of particulars and disclosure;
(h)while there was an offer made to settle the costs before it went to cost assessment, it was for an amount of $420,603.72.[85] That letter of offer was greeted, not unsurprisingly, with a response asking how costs of $844,945.79, in respect of one of the applications, could be justified.[86] That response which was met by a letter from the plaintiffs’ solicitors which did not explain the justification for the amount of costs but instead invited the defendant to make a counter-offer or advise that they were going to make an application for the stay of a cost order;[87] and
(i)the argument which was the subject of the cost order of 29 July 2021 had included arguments in relation to the confidentiality of particulars in [66(b)] of the statement of claim, which were not delivered as ordered by the court and the allegation ultimately was deleted from the statement of claim.
[85]Affidavit of KL Peacock affirmed 2 February 2022 at [6], KLP-10.
[86]Affidavit of KL Peacock affirmed 2 February 2022 at [7], KLP-11.
[87]Affidavit of KL Peacock affirmed 2 February 2022 at [8], KLP-12.
The defendant wished to cross-examine Mr Wilson, but Mr Wilson was not available for cross-examination. He subsequently was not available due to a medical condition. However, on the third day of the hearing, when he was no longer unwell, the plaintiffs again sought to cross-examine him in relation to his certification of the cost statement and his instructions to counsel as to the adequacy of disclosure from Downer. That was opposed by the plaintiffs on the basis that it went beyond the scope of matters raised in the application and, otherwise, the material in relation to Downer would be material that was privileged. The defendant did not pursue the application to cross-examine Mr Wilson, but submitted that they had given the opportunity to Mr Wilson to respond, and it had not been taken up. Given the issues that arose in relation to the cost statement and the errors within that statement, while Mr Wilson had provided an explanation of it in his affidavit, he was not available to give any explanation by way of cross-examination to assist the plaintiffs’ case in relation to points which appeared to be matters which the defendant wished to fairly raise. Mr Dowd did make himself available for cross-examination. Mr Dowd gave evidence, however, he was not responsible for any detailed review of the cost statement.
The key point about the material change of circumstance contended by the plaintiffs is in relation to the abandonment of the breach of confidence case. This application was dealing with disclosure by the plaintiffs, not by the defendant, although it relevantly related in part to disclosure obligations in respect of the causes of action alleging the defendant had received and misused confidential information. However, the allegation that Adani and Carmichael Rail Confidential Information in [5] and [21] was confidential were not admitted and remains in issue in the proceedings at least in relation to the “inducing breach of contract” case. As such some disclosure in that respect would still have to be made with or without the breach of confidence causes of action. The abandonment of the breach of confidence allegations did not render the applications pointless.
The subsequent deletion of [66(b)] from the statement of claim, which was the subject of argument in the application before me, does not constitute a material change of circumstance. It was, in the context of the application, a very small part of the argument, albeit one that had to be addressed by me in the reasons for judgement.
The plaintiffs’ applications before Callaghan J dealt with the application for three orders in relation to particulars being provided by example, that there be a confidentiality regime in relation to the confidential particulars and that there be a deferral of any further particulars pending disclosure by the defendant. Some of those particulars did relate to confidential information said to have been received by the defendant.[88] At the time, however, particulars had been requested by the defendant, quite properly.
[88]Adani Mining Pty Ltd v Pennings [2021] QSC 343 at [10] and [17].
While particulars pertaining to the case of breach of confidence would not have had to been provided, particulars pertaining to other paragraphs of the statement of claim were also the subject of the application. At the time of both applications, the plaintiffs informed the Court that they could not identify the relevant confidential information without disclosure.[89]
[89]See eg Adani Mining Pty Ltd v Pennings [2021] QSC 162 at [44], [48] and [82]; Adani Mining Pty Ltd v Pennings [2021] QSC 343 at [17] and [28]-[30] and [35].
The defendant also made two cross-applications for particulars which were unsuccessful.
It is self-evident that had the breach of confidence cases never been included in the statement of claim, the scope of the applications would have been different. However, given they dealt with allegations of a broader nature and, at the time of the applications, the plaintiffs were relying on inferences from the various statements of the defendant as to the nature of the “Dob In” campaigns and Infiltration claims to support its pleaded case and were relying on disclosure to identify specific confidential information, the subsequent abandonment of the breach of confidence case was not, in my view, a material change of circumstance justifying a new order.
The second argument of the defendant is one which is novel insofar as it raises the question as to whether the nature of the cost statements enliven court’s power to exercise a discretion to set aside cost orders which are unfair and materially unjust. Although there was reference in Telstra Corporation Ltd v Ivory to it being “manifestly unjust if the judgment were allowed to stand” that was in the context of a judgment being found to rest on assumptions that were false. As to that, the defendant’s counsel, Mr Hodge KC, candidly stated that it was a novel approach without support of authority. It is not necessary for me to decide whether there is a power because I do not consider the defendant has shown the costs orders are unfair and materially unjust. The defendant has not shown that the costs orders of themselves were unjust and unreasonable. They were based on the fact that the plaintiffs enjoyed a degree of success in those applications which were opposed by the defendant. The defendant has not shown the factual underpinning of the applications were baseless.
The relevant criticisms really are directed to the enforcement of the costs orders rather than the making of the orders. As set above there is a basis for such criticisms to be made.
As to that submission, while there is an inherent power of the court to control its proceedings, I am not persuaded that the court could intervene to set aside an order which had not been appealed and where the injustice arises from how it is sought to be enforced. There is a comprehensive system provided for under the rules for challenging cost assessments. On present evidence, I do not have a sufficient basis to conclude that the solicitors involved have, in the way they have set about instructing the cost assessor to undertake the cost assessor, acted in a way to use the order as an instrument of abuse of process.
However, the cost statements are drawn in a way which is oppressive for any party to have to examine and unravel in order to properly oppose or challenge the costs being claimed. While a party is entitled to fruits of an action, in this case a cost order, requiring the defendant to engage in such an exercise, at this stage of proceeding, would be oppressive. The costs statements, on their face, clearly do not accord with the orders of the court, such as the percentage of counsel’s fees claimed and the claiming of costs for work that was not encompassed within either of the order of myself of Callaghan J, an example of which is further and better particulars. They are of extraordinary length and complexity such that it is difficult to discern the basis upon which they have been calculated. I infer from the errors apparent on the face of them that they have not been properly reviewed by the plaintiffs’ solicitors and too much reliance has been placed on a costs assessor. Further, the amendments to the cost statements have not been marked-up, which inevitably will result in a protracted exercise and further litigation. The amount of costs claimed also appears, arguably, to be disproportionate to costs that could be properly claimed on such an application, but that is not a matter which can be discerned in the present case.
There is no doubt that the conduct of the plaintiffs in relation to the costs statements is unsatisfactory even though the plaintiffs were entitled to costs under the orders made. The conduct is not consistent with rule 5 of the UCPR. I infer that the plaintiffs have not through their solicitors sought to ensure that the costs statements provided were accurate. Nor have they sought to provide any detailed explanation to the defendants but rather have relied on the costs process which places the onus on the defendant once the costs statements are delivered. The present state of the evidence of the plaintiffs’ conduct and the errors in the costs statement while unsatisfactory does not satisfy me that I should infer that the plaintiffs knew that the costs statements were inaccurate or were indifferent to its inaccuracy, such that I would infer that they have sought to use the court’s processes in relation to the assessment of costs to bring unjustifiable pressure on the defendant. The plaintiffs’ solicitors did seek to raise some of the complaints made by the defendant’s solicitors with the costs assessor and address the question of the mischarging of counsel’s fees and did reduce the costs assessment by $300,000. While they did not provide any detailed explanation of the amount of the costs assessed they did raise the possibility of the defendant seeking a stay.
There is no suggestion that a corporation of the size of Adani could not carry the costs until the finalisation of this litigation although some prejudice will be suffered by the delay in the costs process. There will however be costs to which the defendant is entitled as a result of costs thrown away by the amendments to the statement of claim. In my view, it will be too disruptive to this proceeding and oppressive for the defendant to have to go through the lengthy and expensive exercise of analysing each and every entry of the hundreds of pages of the cost statement in order to respond and then undertake a process to challenge those cost assessments, which themselves could well be disruptive in the context of these proceedings. The appropriate order is to stay the order until the determination of the proceeding or earlier order.
Given the plaintiffs have “front loaded” the costs for the purposes of carrying out the application, if those costs are ultimately found to be justified, deferring the question of the costs order and its consideration until the end of the proceedings will have the added advantage of allowing the cost assessor to ensure there is no duplication of costs in that regard.
Stay of proceedings
The defendant seeks to permanently stay the proceedings as an abuse of process or strike the proceedings and not permit liberty to replead.
A permanent stay is only granted in an exceptional circumstance, “when the interests of the administration of justice so demand”.[90]
[90]Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218 at [71] 233-4.
The question of whether conduct of proceedings can be found to be an abuse of process was considered by the High Court in UBS AG v Tyne:[91]
“Whether conduct of this description rises to the level of an abuse of the processes of the court is a determination that requires consideration of all the circumstances. As Lord Bingham of Cornhill explained, that consideration requires the court to make:
‘a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.’”
[91](2018) 265 CLR 77 at 85 [7] per Kiefel CJ, Bell and Keane JJ, citing Johnson v Gore Wood & Co [2002] 2 AC 1 at 31.
The onus lies on the defendant to satisfy the court that there is an abuse of process, an onus which has been described as a “heavy one”.[92] In Willmot v Queensland, the court held:[93]
“The extreme step of granting a permanent stay demands recognition that the question of whether a trial will necessarily be unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process admits of only one correct answer. The evaluative inquiry in each case is unique and highly fact-sensitive. The correct answer in each case turns on its own facts and requires separate consideration of each claim - its nature, content, and the available evidence.” (footnotes omitted).
[92]Williams v Spautz (1992) 174 CLR 509 at 529.
[93][2024] HCA 42 at [17] per Gageler CJ, Gordon, Jagot and Beech-Jones JJ.
If a party brings proceedings for an illegitimate purpose, the proceedings will be stayed.[94] In Williams v Spautz, the plurality said:[95]
“To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event.”
[94]Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132 at [20].
[95](1992) 174 CLR 509 at 526 per Mason CJ, Dawson, Toohey and McHugh JJ.
The defendant submits that the Court must also consider rule 5 of the UCPR in the context of the present application,[96] which provides:
“(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.”
[96]In the context of liberty to replead, discussed by Jackson J in Mio Art Pty Ltd v BMD Holding Pty Ltd [2014] QSC 55 at [131]-[132].
The defendant contends there are four particular circumstances which must be considered:
(a)the abandonment of the causes of action involving allegations that the defendant has received and misused Adani and Carmichael Confidential Information;
(b)the deficiencies in the FASOC which have been the subject of the strike out applications;
(c)the plaintiffs’ changing position on issues of causation and loss in relation to Downer in light of the public statement made in December 2017 by Adani which was said to be untrue; and
(d)the plaintiffs’ conduct in relation to the costs statements.
Both parties provided detailed submissions as to the law. While there were some points of disagreement as to the law, they were not the subject of oral submissions. In any event it is unnecessary given my findings to resolve those issues.
I have addressed each of these matters in the context of the other applications made. As Mr Hodge KC submitted, the question of whether the court would stay the proceedings for abuse of process or strike out the proceedings with no liberty to proceed is significantly influenced by the court’s attitude to the court’s view in relation to the strikeout application.

As to the first matter, I do not consider that the plaintiffs’ conduct in bringing, and then abandoning, these claims suggests that the commencement and conduct of the proceeding involves the plaintiffs using the court’s compulsory powers to investigate the availability of claim against the defendant and to restrict the defendant’s freedom to engage in legitimate public debate in relation to the challenge of climate change. I have discussed this matter in detail above, which I will not recanvas, but, in short, it is for the following reasons:
(a)I have not found that the pleading of the claim was an abuse of process in and of itself. There was a factual basis upon which the claims could be pleaded, but the success of the claims depended on the plaintiffs obtaining sufficient evidence to be able to prove the claim;
(b)the plaintiffs did make clear they could only plead a case on the basis of the defendant’s alleged admissions in public statements and inferences, and could not identify specifically the confidential information until after disclosure in the applications before me and Callaghan J. No application was made by the defendant in light of those concessions by the plaintiffs to strike out the cause of action and the matters raised in this application were only raised for the first time upon the abandonment of the claim;
(c)The plaintiffs in their submissions have provided reasons for their withdrawal which do not suggest that the proceeding was instituted as a fishing expedition; and
(d)Given the actions were in respect of the use and alleged misuse of confidential information by the defendant, the proceedings did not restrict his freedom to engage in legitimate public debate, nor am I satisfied that was the purpose of the proceedings in all of the circumstances.
As to the second matter, I have found deficiencies in the pleading of the FASOC and struck out parts of it, which have been discussed in detail above. A number of the criticisms while validly made are technical matters of pleading. I am not satisfied the plaintiffs are unable to formulate a proper pleading of their alleged claims such that it would be appropriate to refuse liberty to replead. While the proceedings have been amended by the plaintiffs on a number of occasions and the proceedings have been on foot for a number of years, this is the first time that the defendant has sought to challenge whether the FASOC discloses a reasonable cause of action or otherwise should be struck out. A number of the criticisms in relation to the FASOC have been present in previous versions of the statement of claim to which the defendant has filed defences, assisted by solicitors and experienced Counsel.
I am not satisfied that the defendant has shown in all the circumstances that the proceedings have been brought forward to harass the defendant, bring unjustifiable oppression to bear upon him and intimidate him from participating in legitimate public discourse. Whether the plaintiffs are going to be successful at trial is a matter yet to determined. However, the history of these proceedings which have been discussed in earlier judgements of this court and the matters that have been raised before me, do not, support a finding that the plaintiffs have sought to institute these proceedings or use the court’s procedures for an improper purpose rather than seek relief that is the subject of the FASOC.
As to the third matter, I have discussed the question of the allegations in relation to Downer above. I am not presently satisfied that the plaintiffs are incapable of pleading a proper claim and the claim is “illusory”, notwithstanding the criticisms that have been made of the pleadings, a number of which I have upheld and factual weaknesses which have become apparent.
As to the fourth matter, in relation to the conduct of the costs statement, I have determined to stay the costs order until further order or the determination of the proceedings. Whether the conduct of the plaintiffs and, particularly, the conduct of the plaintiffs’ solicitors could be impugned on the basis of an abuse of process, would require a detailed analysis of the cost statement in order to draw a conclusion. There is an insufficient basis for me to find that the plaintiffs have sought to bring unjustifiable pressure upon the defendant by delivering the cost statements, but I have found, as set out above, that in the circumstances it would be oppressive for the defendant to have to deal with the cost statements while these proceedings are ongoing.
Having considered all of the matters raised not only individually but cumulatively, I do not find the proceedings are an abuse of process justifying the striking out of the proceeding or a permanent stay of the proceeding.
What these applications do highlight is the need for the parties to be set on the pathway of getting the matter to trial as quickly as possible. I intend to list the matter before a supervised case list judge so directions may be made, and a trial date set at the earliest opportunity.
Orders
I make the following orders:

1.The following paragraphs of the FASOC are struck out with liberty to replead:
a.[46] to [57A];
b.[63], [65] and [66];
c.[67] to [73A]; and
d.[78] to [82].

2.The plaintiffs are to file and serve a second further amended statement of claim by 14 February 2025.
3.The plaintiffs’ solicitor is to file and serve an affidavit deposing that it has made any necessary investigations required to replead [63] and [66], and is satisfied that there is a reasonable cause of action in relation to Downer and that they have provided the second further amended statement of claim to their clients to provide instructions that they have reviewed the second further amended statement of claim and have instructed that it can be filed in that form.
4.The enforcement of:
a.paragraph [7] of the Orders made in this proceeding by Brown J dated 29 July 2021; and
b.paragraphs [11(a)], [11(b)] and [11(c)] of the Orders made in this proceeding by Callaghan J dated 8 March 2022,

is stayed until the determination of the proceeding or earlier order.
5.The amended application is otherwise dismissed.
6.The parties have liberty to apply for any further order that may be required to give effect to Order 4.
7.The parties are to provide submissions as to costs by 31 January 2025.
8.The Resolution Registrar, in consultation with the supervised case list manager, is to list this matter for review at the earliest available date after 14 February 2025 before a supervised case list judge for directions.

CITATION:	Adani Mining Pty Ltd v Pennings [2024] QSC 302
PARTIES:	ADANI MINING PTY LTD ACN 145 555 205 (First Plaintiff) AND CARMICHAEL RAIL NETWORK PTY LTD AS TRUSTEE FOR THE CARMICHAEL RAIL NETWORK TRUST ACN 601 738 685 (Second Plaintiff) v BENJAMIN WILLIAM DEVENISH PENNINGS (Defendant)
FILE NO:	BS 9186 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 December 2024
DELIVERED AT:	Brisbane
HEARING DATE:	29-30 January 2024 and 26 February 2024
JUDGE:	Brown J
ORDERS:	1. The following paragraphs of the FASOC are struck out with liberty to replead: (a) [46] to [57A]; (b) [63], [65] and [66]; (c) [67] to [73A]; and (d) [78] to [82]. 2. The plaintiffs are to file and serve a second further amended statement of claim by 14 February 2025. 3. The plaintiffs’ solicitor is to file and serve an affidavit deposing that it has made any necessary investigations required to replead [63] and [66], and is satisfied that there is a reasonable cause of action in relation to Downer and that they have provided the second further amended statement of claim to their clients to provide instructions that they have reviewed the second further amended statement of claim and have instructed that it can be filed in that form. 4. The enforcement of: (a) paragraph [7] of the Orders made in this proceeding by Brown J dated 29 July 2021; and (b) paragraphs [11(a)], [11(b)] and [11(c)] of the Orders made in this proceeding by Callaghan J dated 8 March 2022, is stayed until the determination of the proceeding or earlier order. 5. The amended application is otherwise dismissed. 6. The parties have liberty to apply for any further order that may be required to give effect to Order 4. 7. The parties are to provide submissions as to costs by 31 January 2025. 8. The Resolution Registrar, in consultation with the supervised case list manager, is to list this matter for review at the earliest available date after 14 February 2025 before a supervised case list judge for directions.
CATCHWORDS:	TORTS – MISCELLANEOUS TORTS – CONSPIRING TO INJURE – GENERAL PRINCIPLES - where plaintiffs alleged unlawful conspiracy to injure against the defendant – where plaintiffs alleged lawful means conspiracy in the alternative to unlawful means conspiracy – where pleadings do not clearly distinguish between unlawful means conspiracy and lawful means conspiracy – whether pleadings fail to specify the unlawful means agreed to be employed and the facts or circumstances which made them unlawful – whether pleadings do not establish necessary causal relationship between unlawful conduct and loss and damage TORTS – MISCELLANEOUS TORTS – INTIMIDATION – where the plaintiffs allege that the defendant has engaged in tortious intimidation such that he is liable to pay damages –where the plaintiffs allege that certain targeted contractors withdrew from negotiations with the plaintiffs as a result of threats and demands issued by the defendant – whether the plaintiffs properly plead the causal link between the alleged loss to the plaintiffs and the alleged termination of negotiations by contractors and sub-contractors as a result of threats and demands made by the defendant – whether the claim for loss is vexatious, harassing and manifestly groundless – whether the plaintiffs plead unnecessary allegations which are prejudicial and delaying – whether the pleading as to intimidation should be struck-out in whole or in part TORTS – MISCELLANEOUS TORTS – INTERNTIONAL INTERFERENCE WITH CONTRACT – GENERALLY – where the plaintiffs maintain a claim for injunctive relief to restrain the defendant from future acts of procuring or inducing others to breach contractual duties of confidence by disclosing the plaintiffs’ confidential to him, and from using any confidential information which he obtains – whether the plaintiffs’ pleading failed to disclose a reasonable basis upon which it could be found it is likely that the alleged apprehended future acts of tortious interference will occur – whether the plaintiffs’ pleading does not disclose the existence of a coherent causal link between the defendant’s impugned tortious conduct, which the plaintiffs seek to restrain, and the loss or damage which the plaintiffs say they will sustain because of the conduct EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – GENERALLY – where the defendant applies to set aside the interlocutory injunctions issued by orders made in this proceeding on 11 September 2020 – where the plaintiff has abandoned certain allegations which were relevant to the prima facie claim upon which the injunctions were granted – whether there is a material change of circumstance – whether the balance of convenience no longer favours the injunctions remaining in place PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – where the defendant seeks to strike out or stay enforcement of costs orders made in favour of the plaintiffs on 29 July 2021 and 8 March 2022 – whether there is a basis to strike out or stay the enforcement of the costs orders in the circumstances PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where the defendant seeks to permanently stay the proceedings as an abuse of process or strike the proceedings and not permit liberty to replead – whether the plaintiffs’ claim involves an abuse of process – whether the various pleadings in the further amended statement of claim should be struck out with no leave to re-plead Uniform Civil Procedure Rules 1999 (Qld), r 5, r 171, r 367, r 667, r 668 Adani Mining Pty Ltd v Pennings [2020] QSC 249, considered Adani Mining Pty Ltd v Pennings [2020] QSC 275, considered Adani Mining Pty Ltd v Pennings [2021] QSC 162, considered Adani Mining Pty Ltd v Pennings [2021] QSC 343, considered AMA v CDK [2009] QSC 287, considered Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272; [2012] FCA 758, cited Daebo Shipping Co Ltd v The Ship Go Star (2012) 207 FCR 220; [2012] FCAFC 156, cited Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691, cited Jonker v Thomas International Ltd [2017] FCA 1397, cited Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634; [2000] QSC 150, cited Lee v Abedian [2017] 1 Qd R 549; [2016] QSC 92, considered Lee v Abedian [2017] QSC 22, considered Parbery v QNI Metals Pty Ltd (2018) 131 ACSR 27; [2018] QSC 240, considered Resort Lifestyle Developments Pty Ltd v NGI Savannah Living Communities Pty Ltd (2022) 12 QR 67; [2022] QSC 194, cited TSG Franchise Management Pty Ltd v Cigarette & Gift Warehouse (Franchising) Pty Ltd (No 2) [2016] FCA 674, considered UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, cited Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited Willmot v Queensland [2024] HCA 42, cited Yap v Matic [2022] WASC 181, considered
COUNSEL:	G Gibson KC, with D Pyle and M Windsor, for the plaintiffs M Hodge KC, with C Schneider, for the defendant
SOLICITORS:	Dowd + Wilson for the plaintiffs Marque Lawyers for the defendant