Ammon v Consolidated Minerals Ltd
[2005] WASC 156
AMMON -v- CONSOLIDATED MINERALS LTD & ANOR [2005] WASC 156
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 156 | |
| Case No: | CIV:1222/2004 | 23 MAY 2005 | |
| Coram: | MASTER NEWNES | 14/07/05 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Application for particulars allowed in part Application for discovery and inspection dismissed | ||
| B | |||
| PDF Version |
| Parties: | DEREK NOEL AMMON CONSOLIDATED MINERALS LTD (ACN 000 727 926) PILBARA IRON ORE PTY LTD (ACN 100 410 295) |
Catchwords: | Practice and procedure Application by defendants for further particulars of statement of claim before defence Relevant principles Whether defendant entitled to particulars of representations as to future matters Section 51A of Trade Practices Act Turns on own facts Practice and procedure Application by plaintiff for discovery and inspection of legal advice obtained by defendants Waiver of privilege Statements in newspaper article referring to legal advice Whether evidence of waiver Turns on own facts |
Legislation: | Trade Practices Act 1974 (Cth) |
Case References: | Adelaide Petroleum NL v Poseidon Ltd (1988) ATPR 40-901 American Flange & Manufacturing Co Inc v Rheem Australia Pty Ltd [1963] NSWLR 1121 Ampolex Ltd v Perpetual Trustees Company (Canberra) Ltd (1996) 40 NSWLR 12 Astrovlanis Compania Naviera SA v Linard [1972] 2 QB 611 Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd (1994) 45 Con LR 1 Brookhouse v New South Wales Mutual Real Estate Fund (1978) 2 ATPR 40-064 BT Australasia Pty Ltd v State of New South Wales & Anor (No 7) (1998) 153 ALR 722 Cummings v Lewis (1993) ATPR (Digest) 46-103 Dare v Pulham (1982) 148 CLR 658 Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 Gould & Ors v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 Hunt Contracting Co Pty Ltd v Roebuck Resources NL & Ors (1992) 110 ALR 183 Idoport Pty Ltd & Anor v National Australia Bank Ltd & Ors [2000] NSWSC 599 Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167 Nine Films & Television Pty Ltd v Ninox Television Ltd [2005] FCA 356 Palmos v Georgeson [1961] Qd R 186 Quinlivan v Australian Competition and Consumer Commission (2004) ATPR 42-010 State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 Three Rivers District Council & Ors v Bank of England [2003] 2 AC 1 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 Yorke & Anor v Lucas (1985) 158 CLR 661 Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 Dawson (t/as Goodvibes Yachts) v Deputy Commissioner of Taxation (1984) 71 FLR 364 Devon Gold NL v Wilson (1950) 57 ALR (CN) 1002 Dougherty v Nationwide News Pty Ltd (1967) 86 WN (Pt 1) (NSW) 181 Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566 Oldfield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255 Porteous v Rinehart (1996) 22 ACSR 364 Security Pacific Gold Ltd v Tricontinental Corporation Ltd (1991) 31 FCR 213 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 State Pollution Control Commission v Australian Iron & Steel Pty Ltd (No 2) (1992) 29 NSWLR 487 Sutton v A J Thompson Pty Ltd (in liq) (1987) 73 ALR 233 Telstra Corp Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 TK, PB & LS v Australian Red Cross Society (1989) 1 WAR 335 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CONSOLIDATED MINERALS LTD (ACN 000 727 926)
First Defendant
PILBARA IRON ORE PTY LTD (ACN 100 410 295)
Second Defendant
Catchwords:
Practice and procedure - Application by defendants for further particulars of statement of claim before defence - Relevant principles - Whether defendant entitled to particulars of representations as to future matters - Section 51A of Trade Practices Act - Turns on own facts
Practice and procedure - Application by plaintiff for discovery and inspection of legal advice obtained by defendants - Waiver of privilege - Statements in newspaper article referring to legal advice - Whether evidence of waiver - Turns on own facts
(Page 2)
Legislation:
Trade Practices Act 1974 (Cth)
Result:
Application for particulars allowed in part
Application for discovery and inspection dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr J J Garnsey QC & Mr R L McCormack
First Defendant : Mr G R Donaldson SC & Mr T P O'Leary
Second Defendant : Mr G R Donaldson SC & Mr T P O'Leary
Solicitors:
Plaintiff : Taylor Linfoot & Holmes
First Defendant : Blakiston & Crabb
Second Defendant : Blakiston & Crabb
Case(s) referred to in judgment(s):
Adelaide Petroleum NL v Poseidon Ltd (1988) ATPR 40-901
American Flange & Manufacturing Co Inc v Rheem Australia Pty Ltd [1963] NSWLR 1121
Ampolex Ltd v Perpetual Trustees Company (Canberra) Ltd (1996) 40 NSWLR 12
Astrovlanis Compania Naviera SA v Linard [1972] 2 QB 611
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd (1994) 45 Con LR 1
Brookhouse v New South Wales Mutual Real Estate Fund (1978) 2 ATPR 40-064
BT Australasia Pty Ltd v State of New South Wales & Anor (No 7) (1998) 153 ALR 722
(Page 3)
Cummings v Lewis (1993) ATPR (Digest) 46-103
Dare v Pulham (1982) 148 CLR 658
Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218
Gould & Ors v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490
Hunt Contracting Co Pty Ltd v Roebuck Resources NL & Ors (1992) 110 ALR 183
Idoport Pty Ltd & Anor v National Australia Bank Ltd & Ors [2000] NSWSC 599
Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167
Nine Films & Television Pty Ltd v Ninox Television Ltd [2005] FCA 356
Palmos v Georgeson [1961] Qd R 186
Quinlivan v Australian Competition and Consumer Commission (2004) ATPR 42-010
State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691
Three Rivers District Council & Ors v Bank of England [2003] 2 AC 1
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148
Yorke & Anor v Lucas (1985) 158 CLR 661
Case(s) also cited:
Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360
Dawson (t/as Goodvibes Yachts) v Deputy Commissioner of Taxation (1984) 71 FLR 364
Devon Gold NL v Wilson (1950) 57 ALR (CN) 1002
Dougherty v Nationwide News Pty Ltd (1967) 86 WN (Pt 1) (NSW) 181
Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Oldfield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255
Porteous v Rinehart (1996) 22 ACSR 364
Security Pacific Gold Ltd v Tricontinental Corporation Ltd (1991) 31 FCR 213
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
State Pollution Control Commission v Australian Iron & Steel Pty Ltd (No 2) (1992) 29 NSWLR 487
Sutton v A J Thompson Pty Ltd (in liq) (1987) 73 ALR 233
Telstra Corp Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152
TK, PB & LS v Australian Red Cross Society (1989) 1 WAR 335
(Page 4)
1 MASTER NEWNES: I have before me two applications: an application by the defendants for further and better particulars of the further re-amended statement of claim (the "statement of claim"); and an application by the plaintiff for discovery and inspection of certain documents in respect of which the plaintiff says the defendants have waived legal professional privilege.
2 I will deal first with the application by the defendants for further and better particulars of the statement of claim. Although the defendants have filed a defence, that defence consists of bare denials and senior counsel for the defendants acknowledged that this application should be treated as an application for particulars before defence.
3 The principles to be applied on an application for particulars of a pleading are well established. It is fundamental that a party is entitled to a statement of the opponent's case sufficiently clear to allow the party a fair opportunity to meet it: Gould & Ors v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517; Dare v Pulham (1982) 148 CLR 658 at 664. The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprise, and to reduce costs: Astrovlanis Compania Naviera SA v Linard [1972] 2 QB 611 per Edmund Davies LJ at 620; Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 221. Particulars are intended to inform the other side of the nature of the case it has to meet, as distinguished from the mode in which that case is to be proved, and to limit the generality of the pleadings, so as to limit and define the questions to be tried and as to which discovery is required; they must allow the parties to an action to meet with necessary evidence any questions that may be raised at the trial, to prevent surprise and consequent delay: Bailey v Federal Commissioner of Taxation (supra); Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at 241.
4 It is not, of course, a ground for refusing particulars that the party applying for particulars has knowledge of the facts. The applicant is entitled to know the outline of the case his opponent will try to make against him, which may be something very different from the facts of the case: Palmos v Georgeson [1961] Qd R 186. The question, therefore, is not whether the applicant has adequate knowledge of the facts; it is whether he has adequate knowledge of what the other party will allege to be the facts, for that is the case he must meet: Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 154.
(Page 5)
5 The question of the degree of particularity required depends on the nature of the case and, in general terms, "the good sense of the thing": American Flange & Manufacturing Co Inc v Rheem Australia Pty Ltd [1963] NSWLR 1121 at 1126. But particulars will not be ordered where it would be unreasonable or oppressive to do so. The extent to which particulars are required must also take into account that in the normal course there will be an exchange of witness statements before trial.
6 In the end, the extent to which particulars of a pleading should be required must be assessed by reference to the function they are intended to serve. The ultimate objective is to achieve justice between the parties openly, fairly and without surprise, and in a timely manner without unnecessary cost. In Three Rivers District Council & Ors v Bank of England [2003] 2 AC 1 at [49] Lord Hope put it in this way:
"In my judgment a balance must be struck between the need for fair notice to be given on the one hand and excessive demands for detail on the other. In British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd (1994) 45 Con LR 1 at 4–5 Saville LJ said:
'The basic purpose of pleadings is to enable the opposing party to know what case is being made in sufficient detail to enable that party properly to prepare to answer it. To my mind it seems that in recent years there has been a tendency to forget this basic purpose and to seek particularisation even when it is not really required. This is not only costly in itself, but is calculated to lead to delay and to interlocutory battles in which the parties and the court pore over endless pages of pleadings to see whether or not some particular point has or has not been raised or answered, when in truth each party knows perfectly well what case is made by the other and is able properly to prepare to deal with it.'
These observations were made under the old rules. But the same general approach to pleadings under the CPR was indicated by Lord Woolf MR in McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 at 792–793:
'The need for extensive pleadings including particulars should be reduced by the requirement that witness statements are now exchanged. In the majority of
(Page 6)
- proceedings identification of the documents upon which a party relies, together with copies of that party’s witness statements, will make the detail of the nature of the case the other side has to meet obvious. This reduces the need for particulars in order to avoid being taken by surprise. This does not mean that pleadings are now superfluous. Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader. … '
- On the other hand it is clear that as a general rule, the more serious the allegation of misconduct, the greater is the need for particulars to be given which explain the basis for the allegation."
7 Those comments are, in my view, relevant to the current practice in this Court.
8 On this application, it was submitted generally on behalf of the plaintiff that the statement of claim, read with the extensive further and better particulars which the plaintiff had already provided, was plainly adequately particularised and the plaintiff had discharged his obligation to state, with reasonable clearness, the case which he asserts against each of the defendants. Senior counsel for the plaintiff referred to Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167 at [38]. It was also submitted that, particularly in the light of O 1 r 4A and 4B, pleading disputes should be approached with regard to the fundamental purpose of pleadings and without technicality and reference was made to State ofQueensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 at [22].
9 The plaintiff submitted that there had been a history of delay on the part of the defendants and provided a chronology of the action to date. Counsel also referred to the decision of Commissioner Zilko QC on the application for security for costs on 14 September 2004, in which the learned Commissioner expressed the view that the pleadings of the plaintiff could be understood, and that each of the causes of action could be understood, and that on the basis of the matters pleaded the plaintiff had reasonable prospects of success. It was submitted that the defendants
(Page 7)
- had simply prevaricated and delayed the matter without any reasonable cause.
10 I accept that applications of this nature must not be allowed to become a process of attrition calculated to frustrate and delay the other party, nor an exercise in pedantry. As Saville LJ said British Airways Pension Trustees Ltd v Sir Robert McAlpine & Sons Ltd(1994) 45 Con LR 1 at 34, pleadings are not a game to be played at the expense of litigants, nor an end in themselves, but a means to an end, and that end is to give each party a fair hearing.
11 On the other hand, a plaintiff's understandable desire to get on with their case cannot be allowed to override legitimate complaints by the other side that they have not been sufficiently apprised of the case they have to meet. Each case must be looked at in the light of its own subject matter and particular circumstances.
12 While, on the material before me, it does not appear that the matter has proceeded with the expedition that might be expected, I do not consider that the defendants are solely responsible for the delay. For instance, whatever the circumstances, on which I am not in a position to comment, the fact remains that at this stage the statement of claim has already been amended several times. That, of course, is not uncommon in matters of the complexity of this matter, but time has inevitably been consumed in that process. No doubt the complexity of the matter has itself also contributed to the relatively slow progress that the action has made to date. In any event, having reviewed that progress, I would not accede to the submission of senior counsel for the plaintiff that in the circumstances the current application should be put aside and the defendants should simply be required to file a defence forthwith.
13 I turn then to the specific particulars sought by the defendants in this case.
14 The defendant's first request related to pars 10(b)(iii)(3), 13(c)(3), 14(b)(iii)(4) and 17A(c)(iii)(4) of the statement of claim.
15 In the statement of claim, which extends to some 90 pages, the plaintiff alleges that in or about September 2001, in the course of his occupation as a geologist, he discovered certain unclaimed iron ore resources, described in the statement of claim as the "Mindy Mindy Deposit", consisting of iron pisolite, and the "Mindy Mindy Hematite Deposit", consisting of hematite. The plaintiff pleads that each of the deposits was of economic potential and suitable for exploiting, developing
(Page 8)
- and mining. The plaintiff says that, on 6 November 2001, he applied for, and was subsequently granted, an exploration licence, being EL47/1140, in respect of 20 particular blocks covering part of the Mindy Mindy Deposit.
16 The plaintiff pleads that he subsequently compiled a report entitled "Mindy Mindy Creek Iron Ore Project" (the "Ammon Report") which described and identified the Mindy Mindy Deposit and its extent, and likely extent. The plaintiff says that, in late November or early December 2001, he contacted a representative of the first defendant who expressed interest in the first defendant being involved in an iron ore project.
17 On 11 March 2002, the plaintiff delivered the Ammon Report to the first defendant, addressed to the first defendant's managing director, Mr Kiernan, and invited an expression of interest from the first defendant for investment in the Mindy Mindy Deposit.
18 The plaintiff then pleads at par 10 as follows:
"10. The Report and the information in the Ammon Report:
(a) is and was confidential information of Ammon; and
(b) was provided to Consolidated Minerals in circumstances whereby Consolidated Minerals was and remains subject to an obligation of confidence and obliged:
(i) to keep the Ammon Report and its contents secret and confidential; and
(ii) not to disclose the contents of the Ammon Report to any other person; and
(iii) to use the Ammon Report and the information in the Ammon Report only for the purposes of considering whether or not it would express an interest in investment in the Mindy Mindy Deposit.
(1) The:
(Page 9)
- (a) Report; and
(b) information in the Ammon Report,
- was conveyed to Consolidated Minerals only for the purpose of enabling Consolidated Minerals to express an interest in relation to investing in the Mindy Mindy Deposit. See the facts and matters pleaded and particularised in paragraphs 4 to 9 above.
(2) The nature of the information in the Ammon Report, concerns highly sensitive commercially valuable information in relation to an undeveloped iron ore pisolite deposit of great potential value, such deposit being more particularly described in the Particulars of Mindy Mindy Deposit, as provided under paragraph 4 herein.
(3) Consolidated Minerals is and was at all times aware of the purpose for which Ammon communicated the Ammon Report."
19 It is then pleaded in par 11 that, on or about 14 March 2002, the first defendant informed the plaintiff that it had read and considered the Ammon Report and was interested in pursuing investment in the project for the Mindy Mindy Deposit. The plaintiff told Consolidated Minerals that he would provide it with additional information concerning the project.
20 It is pleaded in par 12 that, on 14 March 2003, the plaintiff provided Consolidated Minerals with further information regarding the Mindy Mindy Deposit and certain additional documents, together defined in the statement of claim as the "Further Information". The plaintiff then pleads in par 13 as follows:
"13. The Further Information is and was confidential information of Ammon and was communicated to Consolidated Minerals in circumstances in which Consolidated Minerals was and remains subject to an obligation of confidence and obliged:
(Page 10)
- (a) to keep the Further Information and its contents secret and confidential; and
(b) not to disclose the contents of the Further Information to any other person; and
(c) to use the Further Information only for the purposes of considering whether or not it would express an interest in investment in the Mindy Mindy Deposit.
Particulars of Confidentiality of Further Information
(1) the Further Information was conveyed to Consolidated Minerals only for the purposes of enabling Consolidated Minerals to express an interest in relation to investing in the Mindy Mindy Deposit in the circumstances pleaded and particularised in paragraphs 11 and 12 above and followed on and supplemented the supply of the Ammon Report in the circumstances pleaded in paragraphs 4 to 9 above.
(2) The nature of the information in the Further Information, being highly sensitive commercially valuable information in relation to an undeveloped iron ore pisolite deposit of great potential value, the details of such deposit being more particularly described in the Particulars of Mindy Mindy Deposit, as provided under para 4 herein.
(3) Consolidated Minerals is and was at all times aware of the purpose for which Ammon communicated the Further Information.
(4) Vivian said to Ammon that, or to the effect that, he acknowledged the Mindy Mindy Deposit resource's economic potential for a stand alone mining operation.
(5) Vivian also said to Ammon that he concurred with Ammon about Mindy Mindy Creek flowing into and being a part of the Yandi Creek drainage
(Page 11)
- system and as to the economic potential of that ground.
- (6) The circumstances in which the Ammon Report and the information in it were communicated as particularised above."
21 The plaintiff alleges in par 14(a) that, shortly after 18 March 2002, Consolidated Minerals requested further information concerning the project for the Mindy Mindy Deposit and the plaintiff supplied that information, defined in the statement of claim as the "Additional Further Information". Paragraph 14(b) pleads, in respect of that information, an obligation of confidentiality of Consolidated Minerals in the same terms as par 13 of the statement of claim, save for the particulars. The particulars of par 14 set out the manner in which it is alleged the Additional Further Information was conveyed and the substance of it, and then continue as follows:
"(2) The Additional Further Information was conveyed to Consolidated Minerals in the circumstances pleaded in sub-paragraph 14(a) above:
(a) only for the purpose of enabling Consolidated Minerals to express an interest in relation to investing in the Mindy Mindy Deposit; and
(b) followed on and supplemented the Further Information conveyed to Consolidated Minerals only for the purpose of enabling Consolidated Minerals to express an interest in relation to investing in the Mindy Mindy Deposit in the circumstances pleaded and particularised in paragraphs 11 and 12 above, which itself followed on and supplemented the supply of the Ammon Report in the circumstances pleaded in paragraphs 4 to 9 above.
(3) The nature of the information in the Additional Further Information, being highly sensitive commercially valuable information in relation to an undeveloped iron ore pisolite deposit of great potential value, the details of such deposit being more particularly described in the Particulars of Mindy Mindy Deposit, as provided under para 4 herein.
(Page 12)
- (4) Consolidated Minerals is and was at all times aware of the purpose for which Ammon communicated Additional Further Information.
…"
22 The plaintiff pleads in par 15 of the statement of claim that, in the course of the communications about the Additional Further Information, Consolidated Minerals requested permission to permit a senior geological consultant to examine the area of the Mindy Mindy Deposit and sought exclusive access for the period that Consolidated Minerals was considering whether it would invest in the project for the Mindy Mindy Deposit.
23 The plaintiff pleads in par 16 that, prior to about the end of March or early April 2002, the plaintiff agreed that Consolidated Minerals should have exclusive access for 60 days. In par 17, the plaintiff alleges certain implied terms of the agreement for exclusive access, including terms that during the 60-day period the plaintiff would not give any other person access to the area or to any of the information about it; that Consolidated Minerals and the second defendant ("Pilbara Iron Ore") would keep the Confidential Information confidential and use it only for purposes of determining whether to invest in the project for the Mindy Mindy Deposit; and that the defendants would keep confidential any information obtained by Consolidated Minerals or its consultants in the course of its investigations and to use that information only for the purposes of determining whether to invest in the project for the Mindy Mindy Deposit.
24 It is pleaded, further or in the alternative, in par 17A of the statement of claim that upon entry into the agreement for exclusive access, Consolidated Minerals and Pilbara Iron Ore were subject to obligations of confidence in the same terms as the implied terms pleaded in par 17. The plaintiff then pleads in par 17A particulars of confidentiality as follows:
"Particulars of Confidentiality
- (1) The circumstances of the representation and request for access pleaded in paragraph 15 above.
(2) The request for access followed the supply of the Additional Further Information to Consolidated Minerals in the circumstances pleaded in sub-paragraph 14(a) above:
(Page 13)
- (a) only for the purpose of enabling Consolidated Minerals to express an interest in relation to investing in the Mindy Mindy Deposit; and
(b) followed on and supplemented the Further Information conveyed to Consolidated Minerals only for the purpose of enabling Consolidated Minerals to express an interest in relation to investing in the Mindy Mindy Deposit in the circumstances pleaded and particularised in paragraphs 11 and 12 above, which itself followed on and supplemented the supply of the Ammon Report in the circumstances pleaded in paragraphs 4 to 9 above.
- (3) The nature of the information in the Additional Further Information, being highly sensitive commercially valuable information in relation to an undeveloped iron ore pisolite deposit of great potential value, the details of such deposit being more particularly described in the Particulars of Mindy Mindy Deposit, as provided under para 4 herein.
(4) Consolidated Minerals is and was at all times aware of the purpose for which Ammon communicated the Additional Further Information.
(5) In almost every conversation the representative of Consolidated Minerals informed Mr Ammon that Consolidated Minerals was interested in the programme.
(6) During these conversations:
(a) Ammon made it clear that the Mindy Mindy Bedded Hematite Deposit was not part of the offer and would remain the exclusive property of Ammon; and
(b) CSM agreed to this.
(7) The circumstances in which the:
(a) Ammon Report and the information in it; and
(b) the Further Information, and
(Page 14)
- (c) the additional Further Information
were communicated as particularised above."
"Adequate particulars have been provided in paragraphs (2) and (3) of the particulars. This request relates to matters of evidence. The nature of the information makes it inherently highly sensitive and commercially valuable. The circumstances of the obtaining of the information and its communication have been pleaded and particularised. The very terms of the joint venture agreement admits by provisions as to confidentiality and exploitation the sensitive commercially valuable information and its great potential value. The Plaintiff relies upon the facts and matters pleaded and particularised in paragraphs 4, 5, 6, 7, 8 and 9, 12, the particulars under 13, 14 and 17, and the facts and matters pleaded in paragraphs 15, 16 and 17."
26 The defendants' complaint is that the reference to other parts of the pleading merely restates the bare allegations; it does not particularise the matters relied upon for the defendants' knowledge. The defendants say that the particulars sought are important because the assertion of that knowledge is relied upon in support of allegations that Consolidated Minerals subsequently breached obligations of confidence under the general law, and contractual obligations of confidence, regarding the information.
27 I do not consider that particulars of the nature sought could be regarded as being necessary to enable the defendants to plead their defence. Particulars of the facts on which a party relies for a plea that a person had knowledge are not required to be contained in a pleading: O 20 r 13(1). Of course, where knowledge is pleaded the Court may order the parties to serve particulars of the facts on which that party relies: O 20 r 13(4). In the present case some further particulars have been given by the plaintiff. It is not alleged, at least in terms, that those particulars are embarrassing. What seems to lie at the heart of the defendants' complaint
(Page 15)
- is that the particulars do not go far enough and are not specific enough. However, the particulars, in my view, sufficiently identify the matters upon which the plaintiff relies for the allegation that Consolidated Minerals was aware of the purpose for which the plaintiff communicated the information referred to. Whether those matters, if proved, are capable of establishing that knowledge, is not an issue that arises on this application.
28 It was also submitted that the reliance in the further and better particulars provided by the plaintiff on the terms of the joint venture agreement was not a proper particular because the joint venture agreement only came into being at a later point in time. As I understand it, the reference in the joint venture agreement to the confidentiality and commercial sensitivity of the information is relied upon by the plaintiff in the particulars as an acknowledgement, albeit an acknowledgement expressly made at some time after the information was received, that the information was confidential and sensitive commercially valuable information and that it is therefore to be inferred that that confidentiality and sensitivity is something which would always have been known to the defendants. On that basis I do not consider the particular embarrassing.
29 In my view, the particulars are certainly adequate to enable the defendants to plead their substantive defences and I would therefore refuse the defendants' application in respect of pars 10(b)(iii)(3), 13(c)(3), 14(b)(iii)(4) and 17A(c)(iii)(4) of the statement of claim. I should add that, at this stage, I am not persuaded that the defendants would be entitled to further particulars of the nature sought, even after defence.
30 The next complaint related to par 18(a), 20, 26(a)(iii), (2) and 42 of the statement of claim. It is necessary to canvass the relevant parts of the pleading. It is pleaded in par 18 as follows:
"(a) Thereafter Consolidated Minerals and Pilbara Iron Ore or one of them, to the knowledge of the other and in accordance with their agreement to Ammon's request for the engagement of a registered geologist to provide an independent report as to the Mindy Mindy Deposit, as referred to in subparagraph 17(i) herein, engaged the firm of McKay &Schnellman, consulting geologists, to visit the area of the Mindy Mindy Creek Deposit and to prepare a report.
(Page 16)
- (b) That report confirmed the extent and value and viability of the project in the Mindy Mindy Deposit and which report was in respect of EL47/1140 and the ground around it. (the 'McKay & Schnellman Report')"
31 The plaintiff pleads in par 19 that, toward the end of May 2002, he requested Consolidated Minerals to provide him with a copy of the McKay & Schnellman Report but Consolidated Minerals failed to do so and, in response to a request as to whether the report confirmed the plaintiff's claims in relation to the Mindy Mindy Deposit, was informed by Consolidated Minerals that the report "was saying the same thing" as the plaintiff was saying. It is then pleaded in par 20 as follows:
"20. Consolidated Minerals and Pilbara Iron Ore or one of them to the knowledge of the other obtained the Mckay [sic McKay] & Schnellman Report in circumstances in which it was obliged to keep the Mckay & Schnellman Report confidential and further obliged:
(a) not to disclose the contents of the Mckay & Schnellman Report to any other person; and
(b) to use the the Mckay & Schnellman Report only for the purposes of considering whether or not it would express an interest in investment in the Mindy Mindy Deposit,
Report
- (1) The Mckay & Schnellman Report was obtained after and as a result of the disclosure by Ammon of the:
(a) Ammon Report; and
(b) information in the Ammon Report; and
(c) Further Information; and
(d) Additional Further Information,
and after the First Access Agreement was entered into with the terms pleaded above and after the
(Page 17)
- First Access Obligations of Confidence had arisen, and in the circumstances pleaded and particularised in paragraphs 18 and 19 above.
- (2) The Mckay & Schnellman Report was obtained by Consolidated Minerals for the purposes of considering whether or not it would express an interest in investment in the Mindy Mindy Deposit.
(3) Consolidated Minerals supplied the:
(a) Ammon Report; and
(b) Further Information; and
(c) Additional Further Information,
to Mckay & Schnellman for the purposes of and that information was used by Mckay & Schnellman for the purposes of their investigations and report.
(4) The First Agreement for Exclusive Access and its terms and conditions pleaded above."
32 It is pleaded in par 21 that in late May or early June 2002 Consolidated Minerals, for itself and Pilbara Iron Ore, requested the plaintiff to extend the period of exclusive access for a further period of 30 days, during which time Consolidated Minerals would be considering whether or not it would invest in the project for the Mindy Mindy Deposit, and represented to the plaintiff that it was making the request so it could consider whether or not it would invest. It is alleged that Ammon and Consolidated agreed (the "Second Agreement") that Ammon would extend the period of exclusive access for a further 30 days and if Consolidated Minerals or Pilbara Iron Ore required a further period or periods of 30 days, Consolidated Minerals would pay Ammon the sum of $5000 for each 30 days further period of exclusive access (the "Second Agreement for Exclusive Access").
33 It is alleged in par 22 of the statement of claim that there were implied terms of the Second Agreement for Exclusive Access or, further or alternatively, it is alleged in par 22A that upon entering into that agreement there were binding upon Consolidated Minerals and Pilbara
(Page 18)
- Iron Ore, obligations of confidence, in the same terms as those pleaded earlier.
34 The plaintiff alleges in par 23 that, prior to 9 May 2002, without informing the plaintiff, Consolidated Minerals caused Pilbara Iron Ore to apply for, and obtain, two exploration licences over the area of the Mindy Mindy Deposit, being EL47/1191 and EL47/1192. The plaintiff alleges that he asked Consolidated Minerals to explain why they had obtained the exploration licences and says he told Consolidated Minerals that the applications involved a breach of confidence. The plaintiff pleads that the defendants told him the exploration licences had been obtained for the project for the Mindy Mindy Deposit which Consolidated Minerals and the plaintiff were discussing.
35 The plaintiff alleges in par 24A that, in about May 2002, Consolidated Minerals caused Pilbara Iron Ore to apply for further licences over the area of the Mindy Mindy Deposit, being E47/1224, E47/1225 and P47/1156 and 1157, in an area directly and integrally related to, and within the purposes of, the joint venture to explore and mine the Mindy Mindy Deposit under the heads of agreement.
36 The plaintiff pleads in par 25 that, between March 2002 and 3 September 2002, the plaintiff and the defendants negotiated the terms of the joint venture between the plaintiff and Pilbara Iron Ore for the purposes of exploring, developing and mining the Mindy Mindy Deposit.
37 It is then, relevantly, pleaded in par 26 as follows:
"26.(a) In the course of the negotiations, Consolidated Minerals and Pilbara Iron Ore continued to represent to Ammon, and he thereby understood that the joint venture for which they were negotiating related to the whole of the area of the Mindy Mindy Deposit and included the areas within:
(i) EL47/1140;
(ii) EL47/1191; and
(iii) EL47/1192.
Particulars of Representations as to Joint Venture
- (1) Consolidated Minerals and Pilbara Iron Ore did not correct or qualify or withdraw the representations pleaded in paragraphs 11, 15, 21
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- and 23 above, although in the circumstances they were under a duty or obligation so to do if the representations were or became false, or they otherwise did not have reasonable grounds for making same.
- (2) Consolidated Minerals and Pilbara Iron Ore knew that Ammon believed that the joint venture for which they were negotiating included and [sic] the whole of the area for the Mindy Mindy Deposit including the areas within E47/1140, E47/1191 and E47/1192.
(3) In the course of a telephone conversation during in or about May 2002, in response to an enquiry from Ammon, Vivian informed Ammon that McKay & Schnellman had confirmed:
(a) the views expressed by Ammon in the Ammon Report; and
(b) in particular, what Ammon had said about the potential of the project for the Mindy Mindy Deposit."
39 The defendants have requested particulars of the facts and matters relied upon to allege that each of the defendants had knowledge of the matters alleged in pars 18(a), 20, 26A(2) and 42 respectively. The particulars provided by the plaintiff in respect of each of those pleas are, with one exception, in the same terms, namely:
"(1) Consolidated Minerals owns and controls and at all times owned and controlled Pilbara Iron Ore.
(2) Pilbara Iron Ore is and was at all material times owned directly or indirectly and controlled by Consolidated Minerals.
(Page 20)
- (3) The acts, facts, matters and transactions pleaded and particularised, so far as they involved Consolidated Minerals and Pilbara Iron Ore, were carried out by and involved employees or agents of Consolidated Minerals or of Pilbara Iron Ore or of related corporations acting for and on behalf of each of the Consolidated Minerals or Pilbara Iron Ore.
(4) Consolidated Minerals acted by Pilbara Iron Ore by reason of the facts and matters particularised in (1), (2) and (3) above.
(5) In these circumstances, the acts and conduct of Pilbara Iron Ore are and were controlled and caused by Consolidated Minerals and knowledge of Consolidated Minerals is the knowledge of Pilbara Iron Ore and vice versa.
(6) Further particulars will be supplied after discovery and interrogatories in these proceedings."
40 The exception is in relation to par 42 where, in addition, the plaintiff has added the further particular:
"Otherwise the knowledge of Consolidated Minerals and Pilbara Iron is evident from the participation of each in the conduct pleaded in respect of each in pars 6 to 32 above. Further particulars are matters of evidence."
41 The defendants complain that the plaintiff has failed to give proper particulars of the allegation that one of the defendants did the relevant act to the knowledge of the other or that one defendant, to the knowledge of the other, knew the matters alleged. In addition, the plaintiff does not identify the "related corporations" referred to or the connection which makes the corporations related corporations of Pilbara Iron Ore and Consolidated Minerals respectively.
42 The defendants say that the particulars simply assert that the act or knowledge of one of the defendants is the act or knowledge of the other, but in that respect the particulars do not make sense. The defendants contend it is illogical to say in particular (3) that the acts of Pilbara Iron Ore and Consolidated Minerals were carried out by, and involved employees, agents or related corporations acting for each of, Pilbara Iron Ore and Consolidated Minerals, and then to say in particular (4) that
(Page 21)
- Consolidated Minerals thereby acted by Pilbara Iron Ore. That is, particular (3) contemplates that the acts of Consolidated Minerals may have been carried out by related corporations of Consolidated Minerals, but particular (4) asserts that Consolidated Minerals acted at all times by Pilbara Iron Ore. The defendants also say that no clear meaning can be extracted from particular (5).
43 I accept the defendants' submissions. In my view, it is quite unclear what is meant by par 3 of the particulars and therefore on what basis it is alleged that Consolidated Minerals acted by Pilbara Iron Ore and that the knowledge of one was the knowledge of the other. Nor is it clear what is intended by the plea in par (5). The particulars require clarification and I do not consider that they are sufficient as they stand. No application has been made to strike out the existing particulars as embarrassing but the defendants have requested further particulars of the facts and matters relied upon by the plaintiff for the allegation of knowledge. I would order those particulars be given, so far as the plaintiff is currently able, in the expectation that, if he can do no more, the plaintiff will, at the least, clarify the meaning of the allegations in the existing particulars.
44 The defendants also seek, in respect of par 21(a)(i) of the statement of claim, particulars of whether Consolidated Minerals' request was written, oral or implied and the usual particulars of each of those. The defendants also seek particulars of the alleged representation in par 21(a)(ii). The plaintiff's response is that it has given the best particulars it can and further particulars will be provided after discovery and interrogatories.
45 It is clear, however, that the particulars of par 21(a)(ii) provided in the statement of claim relate to the form of the alleged agreement, not to either of the matters in respect of which particulars have been sought. The particulars do not, therefore, deal with the subject-matter of the defendants' request. The question, however, is whether the defendants are entitled to the particulars before filing a substantive defence. In my view they are not, and I would decline to order that they be provided before defence.
46 The defendants next complain about the response by the plaintiff to the defendants' request for further particulars, in respect of some 23 separate pleas in the statement of claim, of the facts and matters relied upon to allege that Consolidated Minerals caused and procured (or caused or procured in the case of par 32(c)) Pilbara Iron Ore to do the things stated.
(Page 22)
47 The particulars provided by the plaintiff are identical to those given in relation to pars 18(a), 20, 26A(2) and 42 of the statement of claim, set out above.
48 The defendants say that the particulars are defective for the reasons to which I have referred, and, further, are at such a high level of generality that the defendants do not know the case they must meet. It was submitted that the particulars are material because they relate to pleas that are central to the plaintiff's case. In par 37A.1, for instance, it is pleaded that, prior to 9 May 2002, Consolidated Minerals caused and procured Pilbara Iron Ore to apply for two exploration licences over the area of the Mindy Mindy Deposit without informing Ammon of its intention to make those applications. It is pleaded in par 37A.2 that Consolidated Minerals caused and procured Pilbara Iron Ore to apply for further licences in the location and proximity of the other licences, and in par 37A.4 it is alleged that Pilbara Iron Ore purported to dispose, and Consolidated Minerals caused and procured Pilbara Iron Ore to dispose or agree to dispose, of interests of 50 per cent in the Mindy Mindy Deposit or the Mindy Mindy Joint Venture to Fortescue Metals. The defendants complain that the basis upon which it is alleged Consolidated Minerals caused and procured Pilbara Iron Ore to do each of the specific acts alleged cannot be ascertained, or clearly ascertained, from the particulars.
49 I accept, for the reasons I have previously given, that the particulars are not adequate. In my view, the particulars do not make clear in what respect Consolidated Minerals caused or procured the acts referred to. It may, of course, be the case that the plaintiff is unable to give detailed particulars until after discovery and any interrogatories that may be allowed, but he must give the best particulars he can, in the manner I have previously indicated. I would order the plaintiff, to the extent he is currently able, to provide the particulars requested.
50 The next request was for particulars of par 24A of the statement of claim. The plea is in the following terms:
"Further, in or about May 2002, Consolidated Minerals caused and procured Pilbara Iron Ore to apply for two exploration or other licences over the area of the Mindy Mindy deposit with the Department of Mines of Western Australia which were listed as numbers E47/1224, E47/1125, P47/1156 and P47/1157, which areas are in such location and proximity to EL47/1140, EL47/1191 and EL47/1380, as to be so directly and integrally related to and within the purposes of the joint venture
(Page 23)
- to explore and mine the Mindy Mindy Deposit under the Heads of Agreement."
51 The defendants requested, first, particulars of "the purposes of the joint venture to explore and mine the Mindy Mindy Deposit under the Heads of Agreement". The plaintiff responded that the joint venture described is the Mindy Mindy Joint Venture under the Heads of Agreement. The defendants requested, secondly, that the plaintiff identify all facts and matters (if any) that distinguish "the purposes of the joint venture to explore and mine the Mindy Mindy Deposit under the Heads of Agreement", referred to in par 24A, from the parties' obligations pursuant to the 'Mindy Mindy joint venture' to "explore and develop and mine the Mindy Mindy deposit", referred to in par 27(b)(ii) of the statement of claim. The plaintiff's response was that there is no difference and the joint venture includes the right to mine all of the tenements.
52 The defendants say that if, as it seems, there is no distinction between the "purposes of the joint venture to explore and mine the Mindy Mindy Deposit", and the Heads of Agreement, then par 24A is inconsistent with par 32(a)(2) of the statement of claim. Paragraph 32(a)(2) pleads, so far as relevant, that shortly after 3 September 2002 Consolidated Minerals and Pilbara Iron Ore represented to the plaintiff that Consolidated Minerals had caused Pilbara Iron Ore to apply for EL/1224 and EL47/1225 for the purposes of the joint venture to explore and mine the Mindy Mindy Deposit under the Heads of Agreement. The particulars of that plea assert that EL47/1225 covered a portion of the Mindy Mindy Bedded Hematite Deposit which was excluded from the joint venture under cl 5 of the Heads of Agreement. Paragraph 24A, on the other hand, pleads that EL47/1225 was within the purposes of the joint venture to explore and mine the Mindy Mindy Deposit; that is, wholly within the joint venture under the Heads of Agreement.
53 While there does appear to be an inconsistency in the pleading, it is not apparent how that would be cured by further particulars. If the particulars are correct then the inconsistency remains. If they are incorrect they need to be amended. While they stand it would seem the proper course is for the defendants to apply to strike out the relevant pleas as embarrassing. There is, however, no application before me to strike out those particulars. In the circumstances, I do not consider that it is appropriate to make an order for further particulars.
54 The defendants also sought particulars of par 68 of the statement of claim which is in the following terms:
(Page 24)
- "Further or alternatively, by reason of the matters pleaded in paragraphs 44 to 64 herein, Consolidated Minerals and/or Pilbara Iron Ore:
(a) have acted in common design with each other so as to cause the:
(i) breaches of contract as referred to in paragraphs 46 to 51 herein;
(ii) breaches of confidence, as referred to in paragraphs 52 to 55 herein;
(iii) breach of fiduciary obligations, as referred to in paragraphs 56 to 59 herein;
(iv) contravention of the [Trade Practices Act], as referred to in paragraphs 60 to 62 herein; and/or
(b) have, by authorising, directing, causing or procuring the said breaches and infringing conduct, incurred liability to Ammon by reason of contributory or indirect infringement at law.
Particulars of Loss and Damage
Ammon repeats and relies upon the Particulars provided under paragraphs 37K and 66 herein."
55 The defendants have sought particulars of the facts and matters relied upon for the allegation that the defendants have acted in common design with each other; that they authorised, directed, caused or procured the matter alleged; that liability has been "incurred" to the plaintiff by reason of contributory infringement at law; and that liability has been "incurred" to the plaintiff by reason of indirect infringement at law. The plaintiff's response, in effect, is to repeat the particulars to pars 18(a), 20, 26A(2) and 42 of the statement of claim, which I have set out above. Those particulars are unsatisfactory, for the reasons I have given earlier. I would require the plaintiff to provide further particulars to make clear the case sought to be advanced by those particulars. I would not otherwise order further particulars before defence.
56 I turn then to what was acknowledged by senior counsel for the defendants to be the most significant part of the application, the
(Page 25)
- particulars given in relation to the claim under the Trade Practices Act 1974 (Cth).
57 The relevant pleas are contained in pars 60 and 62 of the statement of claim. Those pleas are as follows:
"Misleading and Deceptive Conduct
60. The Plaintiff repeats the facts and matters in paragraphs 2 to 27 above and avers:
(a) by the conduct of Consolidated Minerals and Pilbara Iron Ore as pleaded in respect of each of them in paragraphs 7, 11, 12, 14, 15 and 21 above, in making the requests and accepting documents and information being the Confidential Information:
(b) by the conduct of Consolidated Minerals and Pilbara Iron Ore in making the representations as pleaded in respect of each of them in paragraphs 11, 15, 21, 23, 26, 30A and 30B, 31 and 31A, and 32 above;
(c) by the conduct of Consolidated Minerals and Pilbara Iron Ore in making the agreements in the terms pleaded in paragraphs 15, 16 and 17, 21 and 22, 27 and 30, 33 and 34 or if it is held that the agreements are not made in the terms pleaded, by purporting to make the agreements in the terms so pleaded and otherwise acting in relation to the agreements as pleaded in paragraphs 15, 16 and 17, 21 and 22, 27 and 30, 33 and 34; and
(d) by acting as pleaded in respect of each of them in paragraphs 34A, 3413, 34C, 37A.1 to 37A.7, 37G to 37J and 56 to 57 above
each of Consolidated Minerals and Pilbara Iron Ore has engaged in conduct and a course of conduct (as pleaded in respect of each in subparagraphs 60(a), (b), (c) and (d) above and the paragraphs of this statement of claims therein referred to) that is misleading and deceptive or likely to mislead and deceive in that each of them has, by
(Page 26)
- so conducting themselves, obtained from Ammon the use and benefit of the Confidential Information not for the purposes, use and benefit of the Mindy Mindy Joint Venture with Ammon but for their private purposes as pleaded in paragraphs 34A, 34B, 34C, 37A.1 to 37A.7, 37G to 37J and 56 to 57 above, and each of them has thereby:
- (i) contravened the provisions of section 52 of the [Trade Practices] Act and
(ii) aided, abetted, counselled and procured and induced and been directly or indirectly knowingly concerned, within the meaning of section 75B of the TP Act, and also for the purposes of s.84 of the said Act, in the breaches by the other of section 52 of the TP Act; and
(iv) conspired with each other to effect the contraventions by each of them of section 52 of the TP Act.
- See paragraphs 37C, 37H and 37J, and 57 and 58 above and the Particulars supplied under each.
61. By the contraventions of section 52 of the TP Act:
(a) Ammon has suffered damage; and
(b) each of Consolidated Minerals and Pilbara Iron Ore is liable for that damage under sections 75B and 82 of the TP Act, respectively.
- Ammon repeats and relies upon the Particulars provided under paragraph 37F herein.
62. Further or alternatively:
(a) the statements, representations, facts, matters and conduct, as referred to in sub-paragraphs 60(a), (b) and (c) herein (hereinafter referred to
(Page 27)
- collectively and severally as the future matter representations") involved future matter, within the meaning of that phrase as provided by s.51A of the TP Act;
- (b) Consolidated Minerals and/or Pilbara Iron Ore did not have reasonable grounds for making the future matter representations; and
(c) in the premises of (a) and (b) hereof, Ammon relies upon the future matter representations:
(i) within section 52 of the TP Act; and
(ii) consequent upon s.51A of the TP Act.
- (1) Ammon repeats and relies upon the matters referred to in paragraph 62 above.
(2) Ammon is presently unable to provide further particulars, but may do so following discovery and inspection and the administering of interrogatories and answering of same in the within proceedings."
58 The defendants sought particulars of each of the statements, representations, facts, matters and conduct that are alleged to be the "future matter representations" in pars 62(a). The plaintiff's response was as follows:
"The statements, representations, facts, matters and conduct that are alleged to comprise the future matter representations are already stated in paragraph 62, being each of the statements, representations, facts, matters and conduct referred to in sub-paragraph 60(a), 60(b) and 60(c)."
59 The defendants say that, in effect, the plaintiff pleads in par 60 that by reason of the conduct of each of the defendants in some 20 preceding paragraphs of the statement of claim, each of the defendants has contravened s 52 of the Act and is also accessorily liable, but the plaintiff does not identify the representations which he alleges were made as to future matters. The plaintiff simply refers to a wide range of alleged
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- conduct and asserts that it involves future matters within the meaning of s 51A of the Act.
60 Shortly before the hearing of this application, the plaintiff provided by letter further particulars of par 62 in the following terms:
"Future Matter
(a) For greater particularisation of future matter, the matter relied upon as future matter is so much of the statements, representations, facts, matters and conduct pleaded and particularised and referred to in subparagraph 60A, B and C and the paragraphs in the statement of claim incorporated by reference in those subparagraphs and as set out below.
(b) They are relied upon as future matters to the extent that the conduct or representations convey expressly or by necessary implication inference [sic] to conduct of the defendants or either of them to take place after the representation, or the intent of the defendants or either of them to act in a certain manner in the future or abide by or to perform in accordance with the agreement pleaded.
(c) The paragraphs of the statement of claim incorporated by reference in subparagraph 60A, B and C and relied upon (in the alternative) as being a future matter are the following:
paragraphs 15(a), (b), paragraph 17(ii), (iii), (iv) and (v), paragraph 21(a)(i) and (ii), paragraph 22(b), (c), (d) and (e), paragraph 23(d) and (e), paragraph 26(a), paragraph 30, paragraph 30A, paragraph 31, paragraph 32(a), paragraph 34(a) to (g).
Facts and matters relied upon to show no reasonable grounds
The plaintiff relies upon the facts and matters pleaded and particularised in pars 34A, 34B, 34C, 37A.1 to 37A.7, 37G to 37J and 56 to 57 of the statement of claim and the particulars supplied under those paragraphs showing that the defendants did not at any material time intend to perform or conduct themselves in accordance with the future matter representation.
(Page 29)
- The defendants did not, in fact, as pleaded and particularised in those paragraphs conduct themselves at any material times in accordance with, or intend to carry out the Joint Venture pleaded and particularised by the plaintiff and in respect of which relief is claimed."
61 The defendants submitted that the further particulars did not cure the problems with the pleading. Senior counsel for the defendants pointed, by way of example, to par 17(ii), which pleads an implied term that Consolidated Minerals would keep the information confidential, and submitted that that plea simply did not refer to any conduct that could constitute a future matter within the meaning of s 51A of the Act.
62 Senior counsel for the defendants submitted that the need for precision was even greater where, as here, each defendant is alleged to be accessorily liable. Without clear identification of the alleged representations, the defendants are unable to identify the conduct that is alleged to contravene s 52, and which of the defendants is alleged to have engaged in it, and the matters that are alleged to give rise to accessorial liability on the part of the other defendant under s 75B. It was submitted that those are critical matters for the case of each of the defendants because s 51A does not detract from the principle in Yorke & Anor v Lucas (1985) 158 CLR 661 that actual knowledge of the essential elements of the contravention is required if s 75B is to apply, and the reversal of onus in s 51A(2) does not apply where accessorial liability under s 75B is relied on: Quinlivan v Australian Competition and Consumer Commission (2004) ATPR 42-010. It was further submitted that allegations of involvement in breaches of the Act pursuant to s 75B are sufficiently analogous to allegations of fraud to require the provision of quite specific particulars: Idoport Pty Ltd & Anor v National Australia Bank Ltd & Ors [2000] NSWSC 599.
63 It was submitted on behalf of the plaintiff that the future matter representations were clearly pleaded and particularised, and indeed were self-evident. In relation to accessorial liability, it was submitted that the matters pleaded, so far as they involved the defendants, were carried out by one defendant and involved employees or agents of each of the defendants, or corporations related to them. In the circumstances, the acts and conducts of Pilbara Iron Ore were controlled and caused by Consolidated Minerals and the knowledge of Consolidated Minerals was the knowledge of Pilbara Iron Ore and vice versa for the purposes of s 75B and s 84 of the Act. It was sufficient, pursuant to s 84 of the Act, in order to establish the state of mind of the company, to show that a
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- director, servant or agent of the company by whom the conduct was engaged in within the scope of the person's actual or ostensible authority, had that state of mind. Senior counsel for the plaintiff referred to Brookhouse v New South Wales Mutual Real Estate Fund (1978) 2 ATPR 40-064 where it was held that the agent of one company was held also to be the agent of another for the purposes of s 84 of the Act.
64 It was submitted that it followed that the state of mind of the officer concerned in Pilbara Iron Ore was the state of mind of Pilbara Iron Ore and, as Pilbara Iron Ore acted as the agent of Consolidated Minerals, it was also the state of mind of Consolidated Minerals, and vice versa.
65 In my view, the particulars are not adequate to inform the defendants of the case they must meet.
66 In Hunt Contracting Co Pty Ltd v Roebuck Resources NL & Ors (1992) 110 ALR 183 at 190, French J said:
"As I said in Turner v Kinian Pty Ltd (Federal Court, 19 August 1992, unreported), a party invoking s 51A of the Trade Practices Act 1974 does not discharge the duty of informing the court and the respondent of its case by resorting to an ambit claim for the application of the section in respect of any representation which might turn out to be a representation as to future matter. If the section is to be invoked then the representations to which it is sought to be applied must be identified. The general approach to pleading a s 51A case was outlined in Western Australia v Bond Corp Holdings Ltd (1991) 99 ALR 125; (1991) ATPR 41-081 at 52,279. A party invoking s 51A in respect of a representation as to a future matter should make clear that it is doing so. In this way the respondent will know that, if the representation was made, it has the burden of showing and must plead that there were reasonable grounds for making it. The proposition that the specific representations relied upon must be identified is a corollary of that statement. There are obvious evidentiary implications for a respondent’s case if the section is applicable to a particular representation. The respondents are entitled to know which of the representations pleaded are alleged to constitute representations as to future matters in respect of which s 51A is invoked."
67 In this case the particulars do not adequately identify the specific representations as to future matters that the plaintiff alleges were made.
(Page 31)
- Apart from the example given by senior counsel for the defendants, it is also not clear, for instance, in respect of pars 23(d) and (e), 26(a), 30, 31 and 32(a), what representations as to future matters are alleged to have been made. I consider that the defendants are entitled to the further particulars of par 62(a) that they seek, before defence.
68 Whether, or to what extent, the defendants are entitled to particulars of the facts relied upon for the allegation that the defendants had no reasonable grounds for making the alleged representations may depend upon, and should await, the terms of the particulars of the alleged representations as to future matters: see Adelaide Petroleum NL v Poseidon Ltd (1988) ATPR 40-901 at 49,700, cfCummings v Lewis (1993) ATPR (Digest) 46-103. In any event, if the defendants are entitled to such particulars, they are not particulars that I would expect, in the normal course, the defendants would be entitled to before defence.
69 I now turn to the second application, which is an application by the plaintiff for discovery of legal advice referred to in a press report of statements attributed in the report to the managing director of Consolidated Minerals, Mr Kiernan. The press report deals with the outcome of the application by the defendants for security for costs before Commisssioner Zilko QC, and then says:
"Outside the court, ConsMin managing director Michael Kiernan said Mr Ammon was trying to change the joint venture agreement to the detriment of ConsMin.
The intellectual property claimed by Mr Ammon was also information publicly available at the Department of Industry and Resources, he said.
Mr Kiernan said ConsMin had three sets of legal advice that the case against it had no basis."
70 The plaintiff submitted that by the last statement Consolidated Minerals had waived legal professional privilege in the advices referred to. Senior counsel for the plaintiff argued that privilege was waived because the statement referred to the content or effect of the advice obtained by Consolidated Minerals. He referred to Ampolex Ltd v Perpetual Trustees Company (Canberra) Ltd (1996) 40 NSWLR 12, where (at 18 – 19) Rolfe J said:
"In my opinion the substance of the advice may well be disclosed if the ultimate conclusion, without the supporting
(Page 32)
- reasoning process, is revealed. At that stage there has been, in my opinion, a disclosure of the substance of the advice, that is, what the advice is. Further the ultimate conclusion, whilst it may be a 'result' or 'consequence' of the reasoning is more than that: in its own right it is the essence or vital part of the advice. Some advices may be very short and answer the question with a minimum of reasoning or, in some circumstances, without any."
71 Counsel also referred to BT Australasia Pty Ltd v State of New South Wales & Anor(No 7) (1998) 153 ALR 722 where the financial statements prepared by BT Australasiacontained the statement that:
"Advice received from Queen's Counsel suggests that the proceedings commenced by the company are soundly framed in legal principle and have considerable strengths in relation to the various bases of legal liability alleged against the NSW Government contract and Telstra."
72 In that case, Sackville J, having referred to the passage which I have set out above from Ampolex Ltd v Perpetual Trustees Company (Canberra) Ltdnoted that the disclosures were not confined to an expression of BTA's opinion concerning the likely outcome of the proceedings but set out the conclusion expressed by Queen's Counsel. Sackville J held that the substance of the advices had been disclosed. BTA was not obliged to disclose the contents of the advices in this form and thus the disclosure was voluntary. Furthermore, it was made to the world at large. Accordingly, his Honour held that BTA had lost privilege in respect of the advices. It was submitted on behalf of the plaintiff that the same conclusion necessarily followed in the present case.
73 It was submitted on behalf of the defendants that no basis had been established for any waiver of privilege in the advice. Counsel referred to the decision of Tamberlin J in Nine Films & Television Pty Ltd v Ninox Television Ltd [2005] FCA 356, in which a newspaper article contained statements attributed to an officer of the first respondent, Ninox, in relation to legal advice received by Ninox. Tamberlin J said (at 25):
"It is apparent that the content of the press statement reported in the Sydney Morning Herald is hearsay in nature and there has been no attempt by Nine to prove, by admissible evidence, that the statement attributed to Mr McEwan was in fact made. In my opinion, this hearsay cannot be relied on. It is not evidence from which I can infer a waiver of legal professional privilege
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- by Ninox, having regard to the importance and substantive nature of the advice. In my view, the making of such a statement must be proved by admissible evidence and not by hearsay."
74 I respectfully agree with the view expressed by Tamberlin J and would similarly conclude that there is no admissible evidence to prove the statement attributed to Mr Kiernan was in fact made by him. There is therefore no basis upon which it can be said there has been a waiver of privilege in any advice obtained by the defendants. I would accordingly dismiss the application for discovery of any such advice.
75 I will hear counsel on the form of orders and on costs.
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