Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 00928

BORAL RESOURCES (VIC) PTY LTD AND OTHERS (according to the attached schedule)	Plaintiffs
v
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2014
DATE OF JUDGMENT	10 September 2014
CASE MAY BE CITED AS:	Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union
MEDIUM NEUTRAL CITATION:	[2019] VSC 429	First Revision: 16 September 2014

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PRACTICE AND PROCEDURE – Judgment entered in default of defence – No Appearance by defendant – Defence ordered to be delivered notwithstanding no appearance entered – Application to set aside entry of judgment as irregular – Whether appearance an essential prerequisite to requirement to file a defence – Whether judgment irregularly entered – Whether causes of action properly pleaded – Whether judgment irregular by reason of defective pleading.

TORTS – Tort of intimidation – Whether recognised as a part of the common law of Australia – Whether sufficiently pleaded.

TORTS –Tort of conspiracy by unlawful means – Whether sufficiently pleaded.

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APPEARANCES:	Counsel	Solicitors
For the First to Sixth Plaintiffs	Mr S J Wood with Mr J R M Tracey and Mr D Ternovski	Fisher Cartwright Berriman Melbourne Pty Limited
For the Defendant	Ms R Doyle SC with Ms M Richards and Ms P Knowles	Slater & Gordon

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 2

Procedural matters........................................................................................................................ 2
The Amended Statement of Claim (ASOC)............................................................................... 5

The questions...................................................................................................................................... 5

The First Ground - No Appearance................................................................................................ 6

Defendant’s submissions............................................................................................................. 8
Plaintiffs submissions................................................................................................................ 11
Consideration – No Appearance.............................................................................................. 13

Amended statement of claim does not disclose a cause of action........................................... 15

Pleading of the defendant’s adoption of the bans................................................................. 17
Defendant’s submissions – the pleading....................................................................... 17
Plaintiffs’ submissions – the pleading........................................................................... 19
Consideration – the pleading.......................................................................................... 20

Interference with business by unlawful means...................................................................... 22
Defendant’s submissions.................................................................................................. 22
Plaintiffs’ submissions...................................................................................................... 23
Consideration..................................................................................................................... 24

Tort of intimidation.................................................................................................................... 25
Plaintiffs’ submissions...................................................................................................... 27
Consideration..................................................................................................................... 29

Conspiracy................................................................................................................................... 35
Defendant’s submissions.................................................................................................. 35
Plaintiffs’ submissions...................................................................................................... 37
Consideration..................................................................................................................... 40

Discretionary considerations.......................................................................................................... 43

Promptness of Application........................................................................................................ 44
Defence on the merits................................................................................................................. 45
Offer to pay the plaintiffs’ costs thrown away........................................................................ 45
Prejudice....................................................................................................................................... 46
The assessment of damages will be impossible.................................................................... 47

HIS HONOUR:

Introduction

On 20 May 2013 the plaintiffs entered interlocutory judgment for damages to be assessed in default of the defendant filing and serving a defence (default judgment). The defence was ordered to be filed and served by a Judge of the Court by order made on 5 April 2013. When that order was made the defendant had not yet entered an appearance. The defendant purported to enter an appearance on 9 September 2013 after application was made for the assessment of damages pursuant to the interlocutory judgment.

On 8 November 2013, the defendant applied by summons to have the interlocutory judgment set aside. The grounds ultimately relied upon are:[1]

(a) the defendant was not required to serve a defence because it had not filed an appearance;[2] and

(b) further or in the alternative, the Amended Statement of Claim filed on 19 April 2013 (ASOC) did not disclose a cause of action.

[1]The defendant did not rely on the ground in paragraph 1(b) of the Summons.

[2]Ground 1(a) in the Summons.

The argument in support of the first ground is essentially that the entry of the judgment in default of defence was irregular and should be set aside as a matter of right. It is contended that the judgment is irregular because a condition to which the relevant rule is subject (under which judgment was entered) had not been satisfied. That rule is Rule 21.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Rules). The condition of the operation of the r 21.02 that the defendant complains has not been satisfied is that it had not filed an appearance. For the reasons that follow I reject that ground to set aside the judgment.

The second ground is also based on the proposition that the entry of the judgment in default of defence was irregular and should be set aside as a matter of right because the ASOC does not disclose a cause of action. For the reason that follow I also reject that ground for the setting aside of the judgment.

The defendant also argued that the Court should exercise its discretion to set aside the judgment on the ground that it has a defence on the merits, it has explained the reason for the default, it brings the application promptly and the prejudice the plaintiffs will suffer can be compensated for by a suitable order for costs or the provision of security. For the reasons that follow I also reject that basis to set aside the judgment.

Background

The plaintiffs are all subsidiaries of Boral Limited. The first and second plaintiffs (Boral Resources and Alsafe, respectively) manufacture and supply concrete for use in the construction of buildings and other structures in Victoria (Victorian Construction Projects). The third plaintiff (Boral Bricks) manufactures and supplies bricks for use in Victorian construction projects. The fourth plaintiff (Boral Masonry) manufactures and supplies masonry products for use in Victorian construction projects. The fifth plaintiff (Boral Australian Gypsum) manufactures and supplies plasterboard products for use in Victorian construction projects. The sixth plaintiff (Boral window systems) manufactures and supplies window products for use in Victorian construction projects.

The defendant is an organisation of employees registered under the Fair Work (Registration of Organisations) Act 2009 (Cth) which, by virtue of its registration, is a body corporate capable of being sued. It is a national trade union with several divisions, one of which is the Construction and General Division, with State Branches. Its members include persons employed or engaged in construction work in connection with Victorian Construction Projects.[3]
[3]Defined in the ASOC.

Procedural matters

On 26 February 2013, the first and second plaintiffs commenced this proceeding by filing a Writ and Indorsement of Claim, together with a summons returnable the next day supported by various affidavits.[4] Application was made for orders restraining the defendant from (in short) procuring persons employed or engaged to work at certain specified construction sites that involved working with concrete supplied by the first and second plaintiffs, to fail or refuse to perform that work (the injunction). Other ancillary orders were also sought.
[4]Affidavit of Alexandra Louise Terrill sworn 22 November 2013 (Fourth Terrill Affidavit), [5].

Despite notice of the application having been given to the defendant, there was no appearance on 27 February 2013 and the matter was adjourned to the next day. That day, there was again no appearance for the defendant, and Hollingworth J granted an interim injunction and made an order for substituted service on the defendant. Rule 8.04 of the Rules required the defendant to file an appearance by 8 March 2013. It did not do so.[5]
[5]Fourth Terrill Affidavit at [6].

The interim injunction operated until 7 March 2013. On that day there was again no appearance for the defendant and the injunction was extended until trial or further order.

Thereafter, the plaintiffs returned to Court on applications to add further plaintiffs and amend the statement of claim to extend its reach beyond work in connection with concrete to other building materials.

By the order of 5 April 2103 the plaintiffs were required to file and serve an amended Writ and statement of claim. This was done on 19 April 2013. (ASOC).[6] The defendant was required by the order to file and serve a defence to the ASOC, and any counterclaim, by 17 May 2013. The defendant did not do so.
[6]Fourth Terrill Affidavit at [44].

On 20 May 2013, the plaintiffs entered interlocutory judgment for damages to be assessed in default of defence.[7] That judgment was obtained pursuant to rr 21.02 and 21.03 and was supported by the affidavit of Alexandra Louise Terrill sworn 20 May 2013 (Second Terrill Affidavit).[8] The affidavit was more than the usual affidavit filed in support of an application for judgment in default of defence, which commonly is limited to proof of the default. That affidavit gave an account of the proceedings in the Court up to that date, the various court hearings and injunctions, the absence of any notice of appearance by the defendant, and especially the effective service of the order pursuant to which the defendant was required to file and serve its defence. The evidence of service went so far, as did other affidavits proving service of other orders and applications, of recounting confirmatory conversations with the assistant to the National Secretary of the defendant, Mr Michael O’Connor.
[7]Exhibit ALT-48 to the Fourth Terrill Affidavit. Although the judgment is dated 20 May 2013, it was apparently not sealed until 22 May 2013: see paragraph [48] of the Fourth Terrill Affidavit.
[8]Fourth Terrill Affidavit at [47].

The judgment of the Court was that the defendant pay the plaintiffs’ damages to be assessed, and costs fixed at $2,850.

The service of the Writ, summons and supporting affidavits, and the service of all other applications, affidavits and orders of the Court relevant to this application, are not disputed in the defendant’s application before me.[9] The affidavit material filed on behalf of, and relied upon by, the plaintiffs was extensive.[10]
[9]Defendant’s Outline of Submissions in Reply dated 23 January 2014 (Defendant’s Reply Submissions) at [41]-[42].
[10]See the Schedule to these reasons.

On 22 August 2013 the plaintiffs filed a summons and a statement of charges alleging 6 charges of contempt of Court against the defendant. On 4 September 2013 the Attorney-General for the State of Victoria applied by summons to be joined as a plaintiff to the contempt summons.

The contempt summons was listed for directions on 9 September 2013. On that day the defendant purported to file an appearance in the proceeding generally. The defendant was represented by Counsel and solicitors at the directions hearing. The further events concerning the progress of the contempt summons are not relevant to this application.

The Amended Statement of Claim (ASOC)

In the ASOC the plaintiffs allege that the defendant caused loss to the plaintiffs by imposing an industrial ban on concrete and other building products that the plaintiffs supply (the Boral Products). The ASOC pleads two causes of action. First, the tort of intimidation (although the defendant contended otherwise). Secondly, conspiracy by unlawful means (although the defendant contended this was not clear).

In respect of the first cause of action, the tort of intimidation, the plaintiffs pleaded that the defendant has committed the tort by demanding that Victorian Construction Principals and Subcontractors[11] not use Boral Products on Victorian Construction Project[12] sites. The demand is alleged to have been coupled with a threat that the defendant would procure workers working at Victorian Construction Project sites to refuse to work with Boral Products. The threatened action, if carried out, would be unlawful because it would constitute a tort of procuring a breach of contract by the workers and would also constitute a secondary boycott contrary to s 45D of the Competition and Consumer Act 2010 (Cth). Victorian Construction Principals and Subcontractors complied with the demand by declining to place orders for Boral Products, thereby causing loss or damage to the plaintiffs.
[11]Defined in the ASOC.
[12]Defined in the ASOC.

In respect of the second cause of action, conspiracy by unlawful means, the plaintiffs allege that the defendant conspired with its delegates to cause loss or damage to the plaintiffs by committing the tort of intimidation. The delegates then committed the tort, causing loss or damage to the plaintiffs. The facts constituting the tort are essentially identical to the facts pleaded in the first cause of action, except that the persons making the demand and the threat are alleged to be the defendant’s delegates rather than the defendant itself.

The questions

The defendant contended that the default judgment is irregular, because it was not entered in accordance with the Rules, and because the ASOC does not disclose a cause of action. The defendant’s application raises the following questions:

(a) Should the default judgment be set aside on the ground that it was irregularly entered because the defendant had not appeared in the proceeding?

(b) Should the default judgment be set aside on the ground that it was irregularly entered because the ASOC does not disclose a cause of action; and

(c) Should the default judgment be set aside on the ground that the defendant has a defence on the merits and the discretionary factors favour setting aside the judgment?

The First Ground - No Appearance

The defendant’s application is made pursuant to rule 21.07 of the Rules, or the inherent jurisdiction of the Court. Under rule 21.07 the Court may set aside or vary any judgment given in accordance with Order 21. In the inherent jurisdiction of the Court, it is open to set aside or vary a default judgment and allow the merits to be litigated if the circumstances suggest the party who has obtained the judgment ought not fairly be allowed to enforce it.[13] In either case the Court is exercising its discretion.
[13]Bradvica v Radulovic, [1975] VR 434 at 441 per Gillard J referring to Dsane v Hagan [1961] 3 All ER 380 at 384. The Court’s inherent jurisdiction to set aside default judgment may only be displaced by statute: Taylor v Taylor (1979) 143 CLR 1 at 16 applied in A-G (Vic) and Phillip Morris Ltd v Lindsey [2005] VSC 53 (Gillard J) at [17].

To set the scene for the defendant’s application, it is desirable to set out a series of propositions which, generally speaking, are not controversial, as follows:

(a) A distinction is drawn between judgments entered regularly and irregularly. Judgments entered regularly are judgments entered in accordance with the Rules or an order of the Court. Judgments entered irregularly are judgments not so entered[14] and, in some cases, where there are other defects in the process, for example where the judgment sum is overstated[15] or the statement of claim does not disclose a cause of action;[16]
[14]Chitty v Mason, [1926] VLR 419 at 423 per Dixon A-J; Daly v Silly [1960] VR 353; Gamble v Killingsworth & McLean Publishing Co Pty Ltd [1970] VR 161 at 168; Jindra v Tech-Rentals Pty Ltd (1999) VSC 206; Commonwealth Bank of Australia Ltd v Sky Empire Pty Ltd [2006] VSC 193 at [19] and [20].
[15]Lam v Gulic (1979) 25 ACTR 45, Blackburn CJ; Gamble v Killingsworth & McLean Publishing Co Pty Ltd [1970] VR 161 at 168.
[16]Jindra v Tech-Rentals Pty Ltd (1999) VSC 206.

(b) Where the judgment is irregular the traditional approach has usually been that it may be set aside, ex debito justitiae (as a matter of right), irrespective of the merits of the party applying.[17] An irregular judgment “ought not to be on the records of the Court” per Dixon CJ in RT Co Pty Ltd v Minister for the Interior;[18]
[17]Chitty v Mason [1926] VLR 419 at 423 (Dixon A-J).
[18](1957) 98 CLR 168 at 170.

(c) The introduction of the new Rules of Court in 1986, and particularly Order 2, has led to a modified approach to some technical defects. There are some defects of a minor or technical kind where the Court has also required that the defendant show that there is a defence on the merits, that is, that there is some useful purpose in setting aside the judgment. There will be no useful purpose where, if the judgment is set aside and the proceeding goes to trial, there would be no possible defence;[19]

(d) Order 2 of the Rules empowers the Court, in effect, to disregard an irregularity if the justice of the situation warrants it. The inherent jurisdiction of the Court may also enable such a course. It is not essential that the Court first make an actual order that the irregularity be corrected before it can proceed to examine the substance of the matter. It can, in appropriate circumstances, disregard the irregularity.[20] This has arisen where technical defects have occurred, such as a writ issued in the County Court mistakenly being entitled “In the Supreme Court of Victoria at Melbourne”,[21] or where the copy writ served omitted the proceeding number assigned to it by the Court,[22] and has been applied where the judgment entered overstated the amount due;[23] and

(e) Rules 21.01 and 21.02 establish distinct procedures for how a plaintiff may enter judgment. Rule 21.01 enables a plaintiff to enter judgment in default of appearance, while r 21.02 provides for judgment in default of defence. These Rules enable a plaintiff to enter judgment without proof of their claim upon the failure of a defendant to observe the applicable time limit. They provide a special privilege to the plaintiff, and so the rules providing for such a right “ought to be construed strictly as against a plaintiff”.[24]

[19]Australia and New Zealand Banking Group Limited v Kostovski, (Supreme Court of Victoria, unreported, Chernov J, 2 July 1997).

[20]Ibid at p. 5, referring to National Australia Bank Limited v Meehan (Full Court, Supreme Court of Victoria, Ormiston and O’Bryan JJ, unreported, 4 February 1994); Metroinvest Anstolt v Commercial Union Acceptance Co PLC [1985] 2 All ER 318.

[21]Australia and New Zealand Banking Group Limited v Kostovski, (Supreme Court of Victoria, unreported, Chernov J, 2 July 1997).

[22]National Australia Bank Limited v Meehan (Full Court, Supreme Court of Victoria, Ormiston and O’Bryan JJ, unreported, 4 February 1994).

[23]Starrs v Retravision(WA) Ltd [2012] WASCA 67.

[24]Clayton v Thomas C Denton & Co Pty Ltd [1972] VR 46 at 49; French v Triple M, [2006] VSC 36, [12].

The default judgment in this case[25] was judgment pursuant to r 21.02 of the Rules in default of defence and was obtained after filing an affidavit proving the default.[26] The default specified in the supporting Affidavit was that no defence had been served by the defendant in accordance with Order 8 of the Orders of Justice Hollingworth made on 5 April 2013.[27]
[25]Exhibit ALT-48 to the Fourth Terrill Affidavit.
[26]Fourth Terrill Affidavit, [47].
[27]Second Terrill Affidavit at [24].

Defendant’s submissions

The logic of the defendant’s argument is as follows:

(a) Rule 21.02 only applies where a defendant is “required to serve a defence” and “does not do so within the time limited…”: rule 21.02(1);

(b) Pursuant to rule 14.04, a defendant is only required to file a defence once they have filed an appearance. Rule 14.04 of the Rules provides, so far as relevant :

14.04. Service of defence
In a proceeding commenced by writ, a defendant who files an appearance shall serve a defence as follows-
(a)where the indorsement of claim on the writ constitutes a statement of claim in accordance with rule 5.04, within 30 days after filing an appearance:
(b)where the plaintiff serves a statement of claim, within 30 days after such service of the statement of claim; or

(c) within such time as the Court directs.

(c) The introductory words of rule 14.04 show that it is a condition of the power of the Court to fix a time for the filing of a defence under r 14.04(c) that the defendant has filed an appearance. Thus, unless and until an appearance was filed, rule 14.04 could not be used to require the filing of a defence;

(d) Rule 8.02 of the Rules is mandatory. It precludes a defendant from taking a step in the proceeding except with leave of the Court[28] unless the defendant has first filed an appearance;[29]
[28]And in circumstances prescribed by rules 8.08 and 8.09.
[29]Tucker v Walker [1920] VLR 385. That case involved an application to dismiss a proceeding for want of prosecution or as an abuse of process where the defendants’ applying had neither been served nor entered and appearance. The application was dismissed on the footing that it was not competent for the defendants to take any step in the proceeding until they appeared.

(e) An appearance is a notice to the Court that a defendant is aware of the proceeding and consents to the Court’s jurisdiction and waives any objection to it hearing and determining the proceeding. It is a step that must be taken before a defendant can take any other step in the proceeding;

(f) The defendant had not filed an appearance as at 20 May 2013 when the judgment in default of defence was filed. Thus, the defendant was not required by rule 14.04 to file a defence;

(g) While Justice Hollingworth ordered that a defence be filed and served by 17 May 2013, in doing so, her Honour did not waive compliance with rule 8.02. The defendant could not take any step in the proceeding unless and until it had filed an appearance. Having not filed an appearance, it could not file and serve a defence, and r 14.04(c) did not apply;

(h) The plaintiffs did not purport to enter default judgment pursuant to rule 21.01 (in default of appearance). They could not have done so, having not complied with rule 21.01(3)(a), which requires a plaintiff seeking to enter judgment in default of appearance to file a notice to the Prothonotary requesting the Prothonotary to search for an appearance by the defendant;[30] and
[30]French v Triple M [2006] VSC 36, [7].

(i) In cases where the irregularity is minor and has not prejudiced the defendant, for example, where the title of a writ refers to the wrong court,[31] the Court has discretion not to set aside the judgment. However, judgments in default which are irregular and have been set aside include:
[31]ANZ Banking Group Ltd v Kostovski (VSC, Chernov J, 2 July 1997, unreported).

(i) a judgment in default of a defence when the party against whom judgment was entered was not obliged to file one;[32]
[32]Cash v Rettig [1968] VR 215. Under the relevant rules, the plaintiff had to endorse on his writ that he required pleadings (or any other party can give such notice within five days of receiving the writ). Upon such notice being given, judgment could be entered where “the defendant being bound to deliver a defence”, “default(s) in delivering the same”. As neither party had given notice that they required pleadings, the judgement entered in default of defence was irregular and set aside.

(ii) a judgment entered under the wrong rule, rule 21.03(1)(a), where the claim was not for a debt but for damages;[33]

(iii) a judgment in default of defence when the affidavit proving default was not filed as required by rule 21.02(2).[34]

[33] Alexander v Ajax Insurance Co Ltd [1956] VLR 436.

[34]Phelts v Denny (1994) 122 FLR 117 (NTSC).

The defendant submitted that if there is clearly an irregularity in the default judgment this will generally mean it is liable to be set aside as of right. If the Court takes the view, however, that the irregularity is not fundamental or not significant, it may then go to the next phase and consider the justice of the situation or to use other terminology, exercise its discretion, in order to determine whether to set aside the judgment in all the circumstances. The irregularity to which the defendant points, namely the failure to satisfy the condition in Rule 21.02, is an irregularity of such a nature that the defendant does not need to go to the second phase.[35]
[35]Transcript p. 13-14.

The defendant further submitted that the plaintiffs had used the wrong rule and accordingly the wrong procedure was adopted. They should have applied for judgment in default of appearance under rule 21.01. But, the plaintiffs have not complied with either rules 21.01 or 21.02 of the Rules and so should not be entitled to rely on the default judgment. In these circumstances, the Court should exercise its discretion to set aside the default judgment, it having been irregularly entered.

Plaintiffs submissions

The plaintiffs’ submissions were as follows:

(a) Ordinarily, the obligation to serve a defence comes from r 14.04. Here the obligation under r 14.04 was never triggered because the defendant did not file an appearance. Rather, the requirement to serve (and file) a defence came from a different source. The defendant was required to serve a defence by order 8 of the Orders of Justice Hollingworth dated 5 April 2013;

(b) Nothing in rule 21.02(1) suggests that the rule applies only in cases where the source of the requirement to serve a defence is rule 14.04. Rule 21.02(1) does not refer to rule 14.04. On its own terms, it applies whenever a defendant is “required to serve a defence”. The words of the rule must be given their plain meaning;

(c) The contention by the defendant that it could not take any step in the proceeding, including the filing and service of a defence pursuant to the order of the Judge, unless and until it had filed an appearance (r 8.02) is wrong because:

(iv)Hollingworth J clearly had power to order the filing and service of a defence (including pursuant to r 34.01);

(v) on its proper construction, Order 8 of her Honour’s orders permitted the defendant to file and serve a defence without filing an appearance;

(vi)Rule 8.02 itself expressly provides that the Court may grant leave to a defendant to take a step in a proceeding without filing an appearance;

(vii) it does not matter whether the defendant was required to file an appearance before it could file and serve a defence. Her Honour’s order plainly required the defendant to file and serve a defence. This is sufficient to satisfy the requirement in rule 21.02(1);

(d) Any irregularity in the entry of judgment in default of defence is completely immaterial because the plaintiffs were clearly entitled to judgment in default of appearance under rule 21.01. The plaintiffs acknowledge that their application for a default judgment was not accompanied by a notice to the Prothonotary requesting the Prothonotary to search for an appearance by the defendant, as required by r 21.01(3)(a). But this non-compliance is a mere technicality. There was in fact no appearance filed by the defendant. The failure to comply with r 21.01(3)(a) caused no prejudice to the defendant, including for the reason it did not lead the defendant to change its position in any way;

(e) The contention that an irregular default judgment will usually be set aside as of right is not supported by any cited authority and, in any event, does not acknowledge the decision of Chernov J in ANZ Banking Group Ltd v Kostovski and the authorities his Honour cites in that case;[36]

(f) Having regard to the principles stated by Chernov J in that case and the discretionary factors identified by the defendant (to which I refer in my consideration of the discretion below), the Court should not set aside the judgment; and

(g) Hence, even if ground (a) in the defendant’s summons is made out, the Judgment should not be set aside.

[36]Unreported, Chernov J, No 5511/97, 2 July 1997, BC9703266) [5]–[9].

Consideration – No Appearance

It is evident that the Order made by Hollingworth J was made in circumstances where it was clear, indeed very clear, that the defendant had not filed an appearance in the proceeding. Indeed it is patent that the defendant knew of the proceedings, and of every step taken and order made in the proceeding, but nevertheless failed or refused to enter an appearance and ignored the Court and its process. So much is obvious from the many affidavits filed during the several hearings leading up to the entry of judgment.

I pointed out in argument to Ms Doyle SC, who appeared with Ms M Richards and Ms P Knowles, for the defendant, that it seemed that both plaintiffs and defendant bypassed the question that lies at the heart of this aspect of the application, namely, the status of the order made by the Judge who ordered the delivery of the defence.[37] The effect of the argument of the defendant is that order was ineffective, and the defendant was not bound by the order unless and until it entered an appearance. As Ms Doyle put it, the making of the order for a defence cannot have cured the incompetence of the defendant taking any step in the proceeding without first filing an appearance.
[37]Transcript p. 15.

This submission of the defendant involves the proposition that compliance with an order of the Court is optional. That is to say, the order need only be complied with if the defendant chooses to enter an appearance.

The orders made on 5 April 2013, which include the order for the filing and service of a defence and any counterclaim, also provide injunctive relief to the plaintiffs, restraining certain conduct and requiring certain conduct, including that the defendant, by a duly authorised person, “must file and serve on the solicitors for the plaintiffs an affidavit setting out the steps taken by it to comply with paragraphs 4 and 5 of this order”.[38]
[38]Paragraph 6 of the orders of 5 April 2013 of Hollingworth J.

Could it seriously be suggested that this order need not be complied with unless and until the defendant chose to enter an appearance? Just to pose that question throws up the answer. The orders of the Court are commands of the Crown in right of the State of Victoria and a failure to comply with them is prima facie a contempt. To the extent that the filing of an affidavit in compliance with this order involves a step in the proceeding, as inevitably it must, the requirements of rule 8.02 must, by implication, be the subject of dispensing leave by the Court. That is to say, there is an implied leave given by the Court when it makes an order requiring the taking of a step by a party who has not entered an appearance.

For these reasons, I agree with the submissions of the plaintiffs that on the proper construction of order 8 of the Orders made on 5 April 2013 the Court gave leave for the defendant to take that step, and indeed the other steps required, without the filing of an appearance.

Another way of looking at the effect of the order requiring the filing and service of a defence in the circumstance where the defendant has not filed an appearance, is through the lens of irregularity. Irregularities are the subject of Order 2:

(a) Rule 2.01 provides that a failure to comply with the Rules does not render the step taken, or any document, judgment or order a nullity;

(b) Rule 2.03 provides, so far as relevant, that the Court shall not set aside any judgment or order made in a proceeding on the ground of a failure to which Rule 2.01 applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity;

(c) Rule 2.04 empowers the Court to dispense with compliance with any of the requirements of the Rules.

In their effect, these rules in combination empower the Court to disregard any irregularity if the justice of the situation warrants it. It is not essential that the Court first make an order that the irregularity be corrected before it can proceed to deal with the substance of the matter. It can, in appropriate circumstances, simply disregard the irregularity.[39]
[39]See the observations of Chernov J in Australia and New Zealand Banking Group Ltd v Kostovski (Unreported) Supreme Court of Victoria, 2 July 1997, at p.5.

Viewed from this perspective the failure or refusal of the defendant to enter an appearance is, in the context of an order that the defendant file and serve a defence, simply an irregularity which has been disregarded by the making of the order for the filing and service of a defence.

Whichever way is the correct way of viewing the order made by Hollingworth J, the result is the same. Accordingly, the first ground upon which the defendant seeks to set aside the judgment fails.

I have not dealt with the submission by the plaintiffs that the judgment can, in effect, be viewed as a judgment in default of appearance under Rule 21.01 because, it seems to me, to be an impossible position to take given that the judgment is on its face a judgment in default of defence.

Amended statement of claim does not disclose a cause of action

The defendant contends that the plaintiffs have entered judgment upon the basis of a defective pleading, which does not properly plead a cause of action in compliance with the Rules, the judgment is irregular and ought be set aside.[40]
[40]Jindra v Tech-Rentals Pty Ltd and Australian Pacific Technology Ltd [1999] VSC 206, [16]-[18]; see also Deputy Commissioner of Taxation v Thai (1993) 26 ATR 108 (NSWSC).

In this respect, the defendant relied on the statement of the essential principles in relation to pleadings in civil proceedings summarised in Wheelahan v City of Casey,[41] as follows:
[41][2013] VSC 316, [25]; See also Gunns Ltd v Marr [2005] VSC 251, [14]-[18]; Clarke v Great Southern Finance Pty Ltd (2010) 243 FLR 451, [5]-[10].

(a) The function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the Court may conduct a fair trial;

(b) The cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action, being those facts relied on to establish the essential elements of the cause of action;

(c) As a corollary, the pleading must be presented in an intelligible form — it must not be vague or ambiguous or inconsistent; a pleading is “embarrassing” when it places the opposite party in the position of not knowing what is alleged;

(d) The fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements; to the contrary, the requirements become more poignant;

(e) Pleadings, when well-drawn, serve the overarching purpose of the Civil Procedure Act 2010 (Vic);

(f) It is not sufficient to simply plead a conclusion from unstated facts; a pleading that does so is embarrassing;

(g) Every pleading must contain in a summary form a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));

(h) Particulars are not intended to fill gaps in a deficient pleading; and

(i) The purpose of particulars is to fill in the picture of the plaintiffs’ cause of action with information sufficiently detailed to put the other party on guard as to the case that must be met.

The defendant characterised the plaintiffs’ pleading as comprising two causes of action against the defendant:

(a) interference with business by unlawful means (or possibly intimidation, a variation of that tort): see ASOC paragraphs 7 to 10 inclusive; and

(b) conspiracy to injure: see ASOC paragraph 11.

The defendant contended that neither cause of action is properly pleaded. The ASOC does not plead any or any sufficient material facts to establish the necessary elements of either cause of action. Further, the few material facts that are pleaded are insufficiently particularised.

In relation to the defendant’s ground that the ASOC does not disclose a cause of action, and the judgment in default of defence should therefore be set aside, I will deal with the parties’ submissions and my consideration of them together under several headings identifying the general nature of the complaints raised by the defendant.

Pleading of the defendant’s adoption of the bans
Defendant’s submissions – the pleading

The defendant submitted that the ASOC does not plead material facts sufficient to establish that the defendant had adopted policies to the effect that Victorian Construction Principals and Subcontractors ought not receive, use or work with Boral Products supplied by any of the plaintiffs.

The complaint is, essentially, that the particulars did not support the allegation, for example, in paragraph 6 of the ASOC, which reads as follows:

On or about Thursday, 14 February 2013, the CFMEU adopted a policy, or otherwise resolved, to the effect that the entities, businesses and individuals that manage or perform work in connection with Victorian Construction Projects (hereafter, “Victorian Construction Principals and Subcontractors”) ought not to, in connection with such management or the performance of such work, receive, use or work with concrete supplied by either of ~~the plaintiffs~~ Boral or Alsafe.

PARTICULARS

Save that particulars of the adoption or resolution referred to above (hereafter, “the Ban Against Boral and Alsafe”) are not yet fully known to the plaintiffs, those particulars include the following, namely that:
(a)the Ban Against Boral and Alsafe arose from, or was otherwise confirmed during, a meeting of Delegates (whose identities are presently unknown to the plaintiffs) that took place at Trades Hall, in Carlton, Victoria on or about the day alleged; and that
(b)that meeting was convened and/or attended by the secretary of the Victoria/Tasmania branch of the CFMEU’s Construction & General Division, Mr John Setka.

Further particulars will, if available, be provided after discovery and upon the return of subpoenas.

Cognate pleadings are found in paragraph 6A of the ASOC.

The defendant is a body corporate registered under the Fair Work (Registered Organisations) Act 2009 and is administered in accordance with its rules. It acts through its officers and committees who have the authority conferred on them by the rules.[42]
[42]The defendant’s rules are exhibits RMW-3 and RMW-4 to the second affidavit of Rodney William Marshall sworn 27 February 2013.

The defendant contended that:[43]
[43]Defendant’s outline of submissions dated 13 December 2013 (Defendant’s Submissions) at [31]-[32].

(a) Where it is alleged that the defendant is liable for the acts of natural persons, those persons must be identified and the basis on which it is alleged that the defendant is liable for their acts must be pleaded. But the ASOC does not plead how either of the policies alleged are said to have been adopted by the defendant in accordance with its rules;

(b) The ASOC does not plead how either of the alleged policies are said to have been adopted by the defendant in accordance with its rules. In the particulars to the ASOC at paragraph 6 it is merely alleged that the Ban Against Boral and Alsafe “arose from” or was “confirmed during” a delegates meeting on 14 February 2013;[44]

(c) A meeting of delegates such as that alleged in the particulars to paragraph 6 of the ASOC has no status under the defendant’s rules. The defendant’s rules do not provide any basis for the allegation that a meeting of delegates has the authority to adopt policies on behalf of the defendant. Nor does the ASOC even allege this to be the case, asserting only, at paragraph 5, that delegates had the authority to communicate, implement and enforce policies of the union. In any event, this allegation is also unsupported by the defendant’s rules, which confer only limited authority on delegates.[45]

[44]ASOC at [6].

[45]Second affidavit of Rodney William Marshall sworn 27 February 2013, exhibit RMW-3 – National Rules, Rules 22(8), 22(9) and 31(g) and exhibit RMW-4 – Divisional Rules, Rule 52(d) and Rule 57 – Shop Stewards/Job Delegates.

Plaintiffs’ submissions – the pleading

In answer to these complaints, the plaintiffs contended that this approach confuses the material allegations with the particulars.

The plaintiffs submitted that:

(a) The proper characterisation of the defendant’s first complaint is that as a body corporate it acts by its officers and committees and that to properly plead that it had adopted a ban of Boral Products the plaintiffs had to identify the individuals who adopted the ban and then plead facts establishing that the conduct of these individuals can be attributed to the defendant;[46]
[46]Plaintiffs’ written Outline of Submissions dated 23 December 2013 (Plaintiffs’ Submissions) at [17].

(b) The relevant material fact is that the defendant decided to adopt the ban. Paragraphs 6 and 6A of the ASOC plead that material fact. They allege that the “defendant adopted” the ban (or “otherwise resolved” that there should be a ban) of Boral Products. That is an entirely conventional form of pleading an allegation that a corporation performed a certain act;

(c) Corporations necessarily act only through individuals. But this does not mean that every time a plaintiff wishes to allege that a corporation did X it is necessary to plead that a certain named individual did X and then plead additional facts establishing that the corporation is responsible for this conduct of this individual. It is perfectly proper simply to plead that a corporation did X. The identity of the individual who physically did X on behalf of the corporation is not a material fact but a particular which may or may not be necessary to enable the defendant to understand the allegation;

(d) The facts establishing that the conduct of the individual can be attributed to the corporation are not material facts. They are simply evidentiary matters that the plaintiff will have to prove at trial to make good the allegation that the corporation did X (if the allegation is not admitted);[47]

(e) It is telling that in order to support this complaint the defendant refers to the content of its rules. It claims that a meeting of delegates has no authority under its rules to adopt policies on its behalf.[48] Yet the contents of the defendant’s rules can have no bearing whatsoever on whether, as a matter of law, the ASOC discloses a cause of action. The references to the rules make plain that the defendant’s complaint is not in truth a pleading complaint but an attempt to argue the merits of the allegations.[49]

[47]Plaintiffs’ Submissions at [18].

[48]Defendant’s Submission at [30], [32].

[49]Plaintiffs’ Submissions at [19].

Consideration – the pleading

The approach of the defendant in this regard is to conflate the requirements of a proper pleading, one which satisfies the rules of pleading, with the requirements for a pleading to disclose a cause of action. That is not the appropriate test on an application of the kind made here. In my view the responses of the plaintiff in their submissions are correct. There is sufficient material pleaded to disclose the cause of action relied upon.

The requirement of the Rules that a pleading contain a statement of all the material facts on which the party relies (Rule 13.02) has the result that what must be pleaded is that which is necessary for the purpose of formulating a complete cause of action.[50]
[50]That is because the word “material” means “necessary for the purpose of formulating a complete cause of action”: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712.

It is necessary in this connection to distinguish between all the facts necessary for the purpose of formulating a complete cause of action on the one hand, and the facts that are sufficient for the purpose of properly informing the defendant of the case it has to meet. In order for the second requirement to be met it may be necessary to provide particulars. These particulars will enable the defendant to know in advance the case it has to meet. But the sufficiency of the pleading for the purposes of determining whether it discloses a cause of action is not to be measured by the extent of the particulars given to support the material facts pleaded.

The authority upon which the defendant relied to support its contention that the ASOC did not disclose a cause of action, Wheelahan v City of Casey[51] was a case, as I have said, of a strike out application under Rule 23.02 of the Rules. That Rule is concerned with the sufficiency of the pleading as a pleading. That is, the question under that rule is whether the pleading is defective. Admittedly it embraces the circumstance where the pleading does not disclose a cause of action. But if it appears, and it often does, that despite the insufficiency of the pleading there is a cause of action disclosed, then the party whose pleading is attacked will be given leave to file and serve an amended pleading.
[51][2013] VSC 316.

By contrast, there are circumstances where a pleading will be struck out under that Rule even where a cause of action is disclosed. Thus where the pleading is not presented in an intelligible form, or is embarrassing in the sense that it places the opposite party in the position of not knowing what is alleged, it will be struck out. But these grounds are distinct from the ground that the pleading does not disclose a cause of action.

I agree with the submissions of the plaintiffs that:

(a) Paragraphs 6 and 6A of the ASOC plead the necessary material fact of the defendant having adopted the ban (or otherwise resolved that there should be a ban) of Boral Products;

(b) The pleading is a sufficient allegation that the defendant, as a corporation, performed the act alleged;

(c) It is not necessary in a claim of this kind that the plaintiffs must plead that a certain named individual did the act alleged and then to plead additional facts establishing that the corporation is responsible for this conduct of the individual;

(d) It is sufficient in order to plead the elements of the cause of action against a corporation to plead that the corporation did a certain thing;

(e) The identity of the individual who did the thing on behalf of the corporation is a particular of the allegation which may or may not be necessary to enable the defendant to understand the allegation; and

(f) The facts establishing that the conduct of the particular individual can be attributed to the corporation are not material facts. They are evidentiary matters, of which the plaintiffs may have to give particulars, that the plaintiff must prove at trial to make good the allegation that the corporation did the thing alleged (if the allegation is not admitted).

For these reasons I reject the contention that the pleading of paragraph 6 and 6A of the ASOC are deficient and are a basis to conclude that the ASOC does not disclose a cause of action against the defendant.

Interference with business by unlawful means
Defendant’s submissions

The heading immediately before paragraph 7 of the ASOC is “Intimidation of Victorian Construction Principals and Subcontractors”. The defendant submitted that despite this heading, the allegations that follow raise the tort of interference with business by unlawful means, of which intimidation is a variant.

In either case the ASOC does not disclose a cause of action because, in short, a survey of the authorities shows that the tort is not recognised in Australia. In particular, the analysis undertaken by Moore J in Qantas Airways Ltd v Transport Workers’ Union of Australia,[52] shows that there is a serious question as to whether the tort of interference with trade or business presently exists in Australia. In that case Moore J surveyed the authorities and concluded that it was inappropriate to take the step of deciding that the tort exists in the face of the decision of the Court of Appeal of Queensland in Deepcliffe Pty Ltd v Council of the City of Gold Coast,[53] where McMurdo P noted that:

The tort does not seem to have been successfully established in Australia since the High Court’s failure to embrace its incorporation into the law of torts in this country in Sanders v Snell.

[52](2011) 280 ALR 503, at [422]-[430].

[53][2001] QCA 342; 118 LGERA 117, [25].

The defendant pointed to the tentative recognition of the tort by Brooking J in Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots.[54] By contrast the approach adopted by Moore J in Qantas has been applied in the subsequent decisions of Ballard v Multiplex[55] and Nyoni v Shire of Kellerberrin (No.2).[56]
[54][1991] 1 VR 637, 667.
[55][2012] NSWSC 426, [77]-[85].
[56][2012] FCA 1477, [45]-[46].

The defendant submitted[57] that even if the tort of interference with business by unlawful means, including intimidation, were recognised in Australia, the ASOC does not properly plead the elements of either variant of the tort.
[57]Defendant’s Submissions at [39].

Plaintiffs’ submissions

The plaintiffs responded that the tort pleaded in paragraphs 7-10 of the ASOC, under the heading “Intimidation of Victorian Construction Principals and Subcontractors”, is the tort of intimidation, not the tort of interference with business by unlawful means.

In relation to the defendant’s submission that the tort of “intimidation” is a variant of the tort of interference with business by unlawful means, the plaintiffs accepted that in OBG Limited v Allan (OBG) the House of Lords recognised for the United Kingdom a broader tort of interference with business by unlawful means which subsumes the narrower tort of intimidation.[58] This broader tort, however, has not yet been recognised in Australia.
[58]OBG Limited v Allan [2008] 1 AC 1 [7] (Lord Hoffman).

The plaintiffs submitted that whether the broader tort exists in this country is irrelevant because the plaintiffs do not plead it. They rely on the traditional tort of intimidation. The existence of that tort is authoritatively established in Australia[59] and is not in any doubt.[60] Submissions were made by the plaintiffs as to the binding effect, on this Court, of those decisions. I refer further to this matter below.
[59]James v Commonwealth (1939) 62 CLR 339, 374 (Dixon J); Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association [1971] 1 NSWLR 760, 766 (Mason JA, Jacobs and Holmes JJA agreeing) (Sid Ross); Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 (Dollar Sweets); Northern Territory v Mengel (1995) 185 CLR 307, 342 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).
[60]For some recent examples, see AS v Murray [2013] NSWSC 733 [14]; Ballard v Multiplex [2012] NSWSC 426 [88]; Jack Brabham Engines Limited v Beare [2010] FCA 872 [302]-[304].

Furthermore the plaintiffs submitted:

(a) It does not matter that the High Court has not ruled on the tort of intimidation, one way or the other, because the New South Wales Court of Appeal has done so;

(b) The decision of the House of Lords in OBG[61] is not binding on Australian courts and certainly does not displace[62] the decision in Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia;[63] and

(c) The OBG case did not involve the tort of intimidation.

[61][2008] 1 AC 1.

[62]Cook v Cook (1986) 162 CLR 376, 390.

[63][1971] 1 NSWLR 760 at 766.

Consideration

The pleading in paragraphs 7–10, against the background of the earlier paragraphs and relevant definitions, reveals a claim that the defendant has committed the tort of intimidation.

I reject the proposition that the tort of intimidation is a variant of the tort of interference with business by unlawful means and is not at this time a part of the common law of Australia for the reasons set out under the next heading, Tort of Intimidation.

Tort of intimidation

The submissions of the defendant in relation to the tort of intimidation were tied with its submissions on the tort of interference in business by unlawful means. Thus much of what has been considered in that connection is relevant here.

The defendant submitted that:

(a) The tort of intimidation is not recognised in Australian law;[64]
[64]Defendant’s Submissions at [36] to [37].

(b) The authorities relied on by the plaintiffs do not make out the proposition that the existence of the tort of intimidation is “authoritatively established” in Australia;

(c) The two High Court authorities cited by the plaintiffs, James v Commonwealth[65] and Northern Territory v Mengel,[66] contain no more than an obiter discussion of the tort of intimidation as articulated by the courts of the United Kingdom. In neither case was the tort of intimidation expressly recognised as part of the common law of Australia. The remaining authorities are either or both interlocutory decisions[67] or decisions of single judges made without benefit of argument on the question of whether the tort of intimidation is recognised by the common law of Australia;[68]

(d) Any recognition of the tort of intimidation in Australia is based firmly on the UK authorities, commencing with Rookes v Barnard.[69] There is no authority cited by the plaintiffs that decouples the development of the tort of intimidation in the Australian common law from its development by the United Kingdom courts, culminating with the House of Lords’ decision in OBG.[70] The tort has not been independently developed by the Australian courts, and still depends for its existence on United Kingdom authority. The current position in the United Kingdom is that the tort of intimidation is a variant of the tort of interference with business by unlawful means. The current position in Australia is that the tort of interference with business by unlawful means is not part of the common law of Australia.

[65](1939) 62 CLR 339, 374.

[66](1995) 185 CLR 307, 342.

[67]Sid Ross; Dollar Sweets.

[68]Dollar Sweets, AS v Murray [2013] NSWSC 733 [14]; Ballard v Multiplex [2012] NSWSC 426 [88] (which merely recite the elements of the tort and the Court made no finding that the tort was established); Jack Brabham Engines Limited v Beare [2010] FCA 872 [302]-[304] (where the Court found that the claim and the particulars in the pleading were not capable of sustaining the cause of action for the tort of intimidation). See the Court’s analysis of how the pleading fails to establish each element at [306]-[310]. The Court dismissed the claim of intimidation, at [311].

[69][1964] AC 1129.

[70]OBG Ltd v Allan [2008] 1 AC 1.

The defendant submitted[71] that the elements of the tort of intimidation are: [72]
[71]Defendant’s submissions at [41].
[72]OBG Ltd v Allan [2008] 1 AC 1, [7], [47], [49] and [62] (Lord Hoffman).

(a) A threat of unlawful conduct directed against a third party in which the plaintiff has an economic interest;

(b) Which would be actionable by the third party if the threat were carried out;

(c) Coupled with a demand (to the plaintiff or the third party);[73]

(d) With intent to cause loss to the plaintiff; and

(e) Resulting in loss to the plaintiff because of the third party’s compliance with the demand.

[73]JT Stratford & Son Ltd v Lindley [1965] AC 269, 283-4 (Lord Denning MR).

The defendant submitted that the following defects are revealed in the pleadings:

(a) The ASOC does not allege that a coercive demand coupled with a threat to do an unlawful act was made. The authorities make it clear the demand must be a threat to do an unlawful act. In short, the demand must be in the form: “Unless you do X, I will hit you”.[74] The ASOC fails to disclose what was allegedly said by whom or to whom. Paragraph 7 and 7A contain no more than general allegations of the communication of the bans and the intention to enforce them by unidentified agents of the defendant to unnamed Victorian Construction Principals and Subcontractors on unspecified Victorian Construction Projects. No actual communications between any persons are pleaded. Crucially, paragraph 7 and 7A do not set out any demand which it is alleged was made to the Victorian Construction Principals and Subcontractors to which the alleged threat to use unlawful means was “coupled”;

(b) It is alleged at ASOC paragraph 12 that the unidentified Victorian Construction Principals and Subcontractors described in paragraph 7 have declined to place orders with the plaintiffs and they did so “as a result of” the communications referred to in paragraph 7. The difficulty is that paragraph 7 merely alleges that the defendant told the unidentified Victorian Construction Principals and Subcontractors that a ban existed and that the defendant intended to procure refusals to work by employees. There is no allegation that a demand was made to the Principals and Subcontractors, and there is no allegation anywhere in the ASOC that the Principals and Subcontractors “complied” with any demand made upon them. Thus, the pleadings omit any allegations referable to the essential elements of the tort.

[74]JT Stratford & Son Ltd v Lindley [1965] AC 269, 283-4 (Lord Denning MR).

Plaintiffs’ submissions

The plaintiffs relied, as I have said, on the tort of intimidation. They submitted that the existence of that tort is authoritatively established in Australia[75] and is not in any doubt.[76] Submissions were made by the plaintiffs as to the binding effect, on this Court, of those decisions, as I refer below in my consideration of this issue.
[75]James v Commonwealth (1939) 62 CLR 339, 374 (Dixon J); Sid Ross at 766; Dollar Sweets; Northern Territory v Mengel (1995) 185 CLR 307, 342 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).
[76]For some recent examples, see AS v Murray [2013] NSWSC 733 [14]; Ballard v Multiplex [2012] NSWSC 426 [88]; Jack Brabham Engines Limited v Beare [2010] FCA 872 [302]-[304].

In relation to the pleading of the tort of intimidation, and in particular the submission of the defendant that the ASOC does not allege that a coercive demand coupled with a threat to do an unlawful act was made and does not set out any demand which it is alleged was made to the Victorian Construction Principals and Subcontractors,[77] the plaintiffs submitted that:
[77]Defendant’s Submissions [42(a)].

(a) To plead intimidation the ASOC must plead the conduct alleged to constitute the demand and the threat;

(b) It need not plead that this conduct, in law, amounts to a “demand” and a “threat” within the meaning of the case law on the tort of intimidation. The latter is a conclusion of law, not a material fact;

(c) The ASOC pleads the conduct alleged to constitute the demand and the threat. Paragraphs 7 and 7A of the ASOC allege that the defendant communicated two things to the Victorian Construction Principals and Subcontractors. First, the existence of the bans, defined earlier in the pleading as a policy that Boral Products ought not be used on Victorian Construction Projects. Secondly, the defendant’s intention to enforce the bans by procuring workers to refuse to work with Boral Products;

(d) These communications amount to a demand coupled with a threat. The demand is that Boral Products not be used on Victorian Construction Projects. The threat is that the defendant will procure the workers to refuse to work with Boral Products if the Victorian Construction Principals and Subcontractors attempt to use these products; and

(e) The demand is implicit in both the communication of the ban and the threat of procuring the workers’ refusal to work with Boral Products. The existence and the content of the demand is entirely obvious on a good faith reading of the ASOC.

In relation to the defendant’s submission that the ASOC does not plead that the Victorian Construction Principals and Subcontractors complied with the demand, paragraph 12 of the ASOC alleges that “[a]s a result of the communications” of the ban and the threat, “several Victorian Construction Principals and Subcontractors have declined to place orders … that they would otherwise have placed”. This is plainly a pleading of compliance. Compliance with a demand is the doing of the thing that the demand requires. This is precisely what paragraph 12 pleads – as a result of being told about the ban and the threat to enforce it, the Victorian Principals and Subcontractors did not place orders for products covered by the ban, thereby complying with the demand implicit in the ban.

Consideration

The decision of the High Court in Farah Constructions Pty Ltd v Say-dee Pty Limited[78] establishes the proposition that intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.[79] Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.
[78](2007) 203 CLR 89, at [135].
[79]Referring to Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, at 492.

In Lipohar v The Queen[80] Gaudron, Gummow and Hayne JJ noted that the common law has its source in the reasons for decisions of the courts which are reasons arrived at according to well recognised and well established judicial methods. To assert that there is more than one common law in Australia or that there is a common law of individual states is to ignore the central place which precedent has in both understanding the common law and explaining its basis. Until the High Court rules on a particular matter, the doctrines of precedent which bind the respective courts at various levels below the High Court will provide a rule for decision. But that does not dictate the conclusion that until there is a decision of the High Court the common law of Australia does not exist.
[80](1999) 200 CLR 485, at [44]-[46].

It is the duty of a Judge or an Associate Judge of this Court to follow the decision of the New South Wales Court of Appeal in Sid Ross,[81] and for an Associate Judge, there are other authorities that are binding, for example Dollar Sweets.[82] It is not disputed by the defendant that the decision of the House of Lords in OBG[83] is not binding on this Court.
[81][1971] 1 NSWLR 760 at 766.
[82][1986] VR 383 at 390 per Murphy J.
[83][2008] 1 AC 1.

It is therefore correct, as the plaintiffs submitted, that it does not matter that the High Court has not ruled on the tort of intimidation. I am bound to follow the decision in Sid Ross.

In Sid Ross[84] Mason JA (as he then was) said:

The submission that there is no tort of intimidation and that Rookes v Barnard (30) should not be followed was made as a formal submission, it being conceded that this Court would regard it as a persuasive authority. However, Rookes v Barnard (supra) is but one of a number of formidable obstacles which bars the defendant’s path. Whether the cause of action be described as the separate tort of intimidation or not, there is strong authority for the proposition that if A, intending to injure C, by threatening B that he will commit an unlawful as against B, unless B refrains from exercising his legal right to deal with C, induces B to refrain from so doing, A commits a wrong actionable at the suit of C. In recognising that there was a cause of action in such circumstance the House of Lords applied the law as it has previously established and declared by such early decisions as the Earl of Shewbury’s Case; Garret v Talro; Tarleton v M’Gawley; Keeble v Hickeringill and as it was subsequently explained and declared by the House of Lords in Allen v Flood and Quinn v Leathem. (footnotes omitted)

[84][1971] 1 NSWLR 760 at 766.

The plaintiffs submitted that the defendant, who is A in the above formula, intended to injure the plaintiffs, who are C, by threatening the builders on Victorian Construction Projects, who are B, that the defendant will commit an unlawful act (i.e. organise disruption at their building site) which would either constitute inducement of a breach of the workers’ contracts or a breach of s 45D of Australian Competition and Consumer Law as against B unless B refrains from exercising their legal right to have concrete and other Boral Products supplied by the plaintiffs (C). In this situation the defendant (A) commits a wrong actionable at the suit of the plaintiffs (C).

The defendant submitted that the authority of the Sid Ross case was undermined by the decision of the High Court in Northern Territory v Mengel[85] because in the Sid Ross case Mason JA rested his statement of the law in part on the decision in Beaudesert Shire Council v Smith.[86]It is clear, however, that the decision in Sid Ross has not been overruled. Thus, the authorities referred to above mean that I should follow Sid Ross unless I am persuaded that it is clearly wrong. I am not so persuaded.
[85](1995) 185 CLR 307, 342 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).
[86](1966) 120 CLR 145.

With respect to the pleading of the tort of intimidation, the elements identified in the reasons of Mason JA in Sid Ross have been adopted and applied in subsequent cases and are referred to by the text writers, particularly in the Law of Torts by Balkin & Davis[87] where the learned authors identify, by reference to the analysis in Sid Ross and other authorities, three elements of the tort:
[87]Law of Torts, by RP Balkin and JLR Davis, 4^th Ed, paragraph 21.31, p. 608.

(a) That the defendant has made a demand coupled with a threat;

(b) That the threat is to commit an unlawful act; and

(c) That the person threatened complied with the demand thereby causing loss to the plaintiff.[88]

[88]Law of Torts, by RP Balkin and JLR Davis, 4^th Ed, paragraph 21.32, p. 608-9.

In my view the pleading in this case does allege the elements of the tort as follows:

(a) The existence of the bans on the use of Boral Products on Victorian Construction Projects are identified in paragraphs 6 and 6A of the ASOC;

(b) Paragraphs 7 and 7A of the ASOC allege that the defendant communicated to the Victorian Construction Principals and Subcontractors:

(viii) the existence of the bans; and

(ix) its intention to enforce the bans by procuring workers to refuse to work with Boral Products;

(c) These communications are an allegation of conduct that amounts to a demand coupled with a threat. The demand is that Boral Products not be used on Victorian Construction Projects (i.e. the bans). The threat is that the defendant will procure the workers to refuse to work with Boral Products if the Victorian Construction Principals and Subcontractors attempt to use these products. This threat was described in argument by Mr Wood QC, who appeared with Mr Tracy for the plaintiffs, as a threat to disrupt work on building sites that flouted the ban;[89]
[89]Transcript p. 80.

(d) Paragraphs 8, 8A, 9 and 10 of the ASOC allege the necessary facts (albeit at a general level) to establish:

(i) the contracts pursuant to which the workers were employed or engaged to work at Victorian Construction Project sites, and their terms;

(ii) the procuring by the defendant or its delegates of a breach of those contracts, if the threat were carried out;

(iii) the contravention of s 45D by the defendant or the delegates hindering or preventing the Victorian Construction Principals and Subcontractors employed or engaged at the relevant site from acquiring Boral Products for the purpose, and with the likely effect, of causing substantial loss or damage to the plaintiffs’ businesses;

and thus engaging in an unlawful act or acts; and

(e) Compliance with the demand by the threatened person is pleaded in the paragraphs relating to loss. Paragraph 12 of the ASOC alleges that as a result of the communications of the ban and the threat, several Victorian Construction Principals and Subcontractors have declined to place orders for the supply of Boral and Alsafe concrete that they would otherwise have placed. Paragraph 14 makes a similar, but shortened, allegation of loss in relation to the other Boral Products.

The defendant makes complaints about the generality of the pleading, both in respect of this aspect of the ASOC and, indeed, all other aspects. It would be wrong in my view to elevate the paucity of the particulars in this case with a failure to plead the material facts. What level of generality is acceptable in a pleading depends on the general subject matter of the case.[90]
[90]Ratcliffe v Evans [1892] 2 QB 524 at 532.

The pleadings conventionally define the issues in general terms. Particulars control the generality of the pleadings and restrict the evidence that can be led by the parties at trial and give the other party such information as may enable that party to know the case to be met at trial and to prevent surprise.[91] In this case the activity the subject of complaint is largely—if not only—evident to the plaintiffs from material in the press and the consequences on the ground, as it were, of the conduct of the defendant and its delegates alleged. In order to particularise and prove the alleged conduct the plaintiff would require resort to discovery and subpoenas.
[91]There are a multitude of cases in which these propositions are stated in one way or another. See Williams, Civil Procedure Victoria, online ed., paragraph 13.10.05.

As the plaintiffs pointed out in their submissions, if the material facts are pleaded, the pleading will not be struck out in the first instance because it lacks sufficient particulars. Rather, where the particulars are insufficient, and the defendant is in doubt about the case alleged, the defendant is entitled to seek further and better particulars. It is only if sufficient particulars are not provided in response that the pleading may be struck out.[92] Even then, where the facts the subject of the allegation are peculiarly within the knowledge of the other party, the pleading party may need discovery or to subpoena third parties in order to supply the particulars. Depending on the nature and the circumstances of the case, the opportunity and the time may well be allowed for a plaintiff to collect the material necessary to provide those particulars.
[92]Montclare v Metlife Insurance Limited [2009] VSC 402 [7] (Harper J).

There is no doubt that the defendant’s non-participation in the proceeding prior to the commencement of the contempt proceedings was deliberate. It had notice of every step along the way but did not appear or take any part in the proceeding. No discovery between the parties to the proceeding was available in those circumstances. The usual course of obtaining material (especially the material within the knowledge only of the defendant) in support of the plaintiffs’ case, and to damage the defendant’s defence of it, was therefore not available to the plaintiffs.

But the failure or refusal of the defendant to participate and the default judgment entered has the consequence that, unless the judgment is set aside, the factual allegations in the ASOC are taken to be admitted.[93] If those factual allegations, even though they be at a high level of generality, satisfy the legal requirements for a complete cause of action, then the fact that there are incomplete particulars does not mean that no cause of action is disclosed.
[93]Williams, Civil Procedure Victoria, on line edition, paragraph 21.01.20 and the cases there cited.

There are two particular complaints made by the defendant that are of this character. First, a complaint that in relation to the demand coupled with a threat, the pleading fails to disclose what was allegedly said by whom or to whom. This is, in my view, a complaint about the particulars. It does not reveal the absence of a material element of the cause of action. Secondly, a complaint that paragraphs 7 and 7A contain no more than general allegations of the communication of the bans and the intention to enforce them by unidentified agents of the defendant to unnamed Victorian Construction Principals and Subcontractors on unspecified Victorian Construction Projects. Again this is a complaint about the particulars.

By its conduct in refusing to participate in the proceeding, the plaintiffs have not been called on to give the particulars of the several general allegations of fact, and the defendant has not been amenable to discovery to fill out the plaintiffs’ claims. It cannot now complain that there is a lack of particulars of the allegations made.

Conspiracy
Defendant’s submissions

The defendant set out the elements of the tort of conspiracy to injure as:[94]
[94]McKernan v Fraser (1931) 46 CLR 343, 350-1 (Gavan Duffy CJ and Starke J), 362 (Dixon J), 380-381 (Evatt J); McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409, [131]-[134]; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290, [60]-[64].

(a) A combination or agreement between two or more individuals;

(b) With the sole or predominant intent to injure the plaintiff;

(c) The performance of overt acts in accordance with the agreement and with the intent to injure; and

(d) Resulting in loss and damage to the plaintiff.

In setting out these elements, the defendant assumed that the plaintiffs were alleging a conspiracy to perform acts which are lawful, but done with the sole or predominant purpose of injuring the plaintiff. They said that it did not appear on the face of the ASOC that the plaintiffs intended to allege the commission of the tort of unlawful means conspiracy.

The defendant then analysed the pleading in the following way:

(a) It is alleged in ASOC paragraph 11(a), that the defendant conspired with delegates to communicate to unidentified Victorian Contractors and Principals the existence of the ban and the intention of the defendant and/or the delegates to procure refusals to work by employees. The additional layer of confusion which besets the ASOC is that the plaintiffs allege that insofar as the defendant adopted the ban alleged at ASOC [6], it did so by dint of the fact a delegates meeting allegedly gave rise to or “confirmed” the ban. But no delegates are identified as having attended the meeting. It is then further alleged at ASOC paragraphs 11(a) and 11A(a) that the defendant conspired with its delegates to implement the ban. But the delegates with whom it is alleged the union conspired are not identified either and it is not clear whether they are the same delegates as those who attended the meeting. Thus, the parties to the conspiracy are left entirely unclear;

(b) Crucially, there is no allegation in the ASOC that the defendant and its unidentified co-conspirators acted with the sole or predominant intention of injuring the plaintiffs, as is required to make out conspiracy to injure;

(c) While ASOC paragraph 11(b) alleges that “pursuant to the conspiracy,” unidentified delegates have “effected” the ban, no overt acts are pleaded which are alleged to have been taken by any particular person on behalf of the defendant in furtherance of its alleged conspiracy with unidentified delegates. This exposes the real flaw at the heart of the pleading: what is it alleged that any particular person did either to enforce the alleged ban or more specifically to procure the refusals to work by employees? It is alleged at ASOC paragraphs 11(b) and 11A(b) that the delegates have effected the bans. But these delegates (alleged to be the agents through whom the defendant acted) are not identified;

(d) Further, there is no identification of the alleged objects or victims of the conspiracy. In Australian Wool Innovation v Newkirk,[95] it was held that a pleading which alleged that a conspiracy undertaken with the intention of harming the “first to 104^th applicants” was embarrassing, by reason of its failure to permit the “shape and form” of the conspiracy to be ascertained: see at [68] per Hely J. Here, the ASOC is expressed in even more vague terms, operating by reference only to unidentified Victorian Contractors and Principals.

[95][2005] FCA 290.

The defendant finally submitted that the case pleaded against the defendant is so general that the defendant cannot know what is alleged against it. The ASOC fails to define the issues for trial. The pleading is embarrassing in its generality. Its deficiencies are not able to be cured by the provision of particulars. It follows that the judgment entered on 20 May 2013 is irregular, and should be set aside.

Plaintiffs’ submissions

The plaintiffs submitted that, contrary to the assumption made by the defendant,[96] the ASOC pleads conspiracy by unlawful means. The heading above paragraph 11 of the ASOC reads “Conspiracy to Injure by Intimidation”. As that heading suggests, the paragraphs that follow plead a conspiracy to injure by unlawful means, the unlawful means being the tort of intimidation.
[96]Defendant’s Subissions fn 40.

With respect to the particular complaints referred to above at paragraph 94, the plaintiffs responded as follows:

(a) The fact that the ASOC does not identify the delegates does not mean that the claim of conspiracy does not disclose a cause of action because:

(iv)First, the identity of the delegates is not a material fact but a particular. As far as material facts go, it is sufficient to allege that the defendant conspired with one or more persons. The identity of the co-conspirators is not an element of the cause of action;

(v) Secondly, if the material facts are pleaded, a pleading will not in the first instance be struck out merely because it lacks sufficient particulars. Rather, where particulars are insufficient, the appropriate course is for the defendant to seek further and better particulars. It is only if sufficient particulars cannot be provided in response to the defendant’s request or requests for further and better particulars that the pleading may be struck out:[97]
[97]Montclare v Metlife Insurance Limited [2009] VSC 402 [7] (Harper J).

… I do not wish to suggest that inadequate particulars can never result in a pleading that is embarrassing or which may prejudice or delay the fair trial of a proceeding. If the absence of particulars, or their manifest inadequacy to support the material allegation in support of which they are put forward, is not corrected after proper opportunity for correction has been provided, then it may be entirely appropriate for the opposite party to bring that circumstance to the notice of the court; and the court may be of the opinion that such particulars as have been pleaded cannot sustain the material allegation they are intended to support, and for which particulars are necessary. In that state of affairs, it might be entirely appropriate for the court to intervene pursuant to r.23.02 so that further time and expense is avoided, and a hopeless pleading put to its final rest.

(vi)The defendant could have sought further and better particulars before the time for filing of its defence had expired. It did not do so. Now that there is a default judgment against it, it is too late to complain about the adequacy of particulars;

(b) This is a type of case where further particulars identifying the delegates can be provided after discovery and the issuing of subpoenas, for the following reasons:

(i) The identity of the co-conspirator delegates is a matter within the defendant’s knowledge;[98] and

(ii) The ASOC identifies the nature of the plaintiffs’ claim:[99] the defendant is alleged to have conspired with its delegates (or some of them) to implement a ban on Boral Products by threatening that workers will refuse to work with these products.

[98]Leitch v Abbott (1886) 31 Ch D 374.

[99]Erlistoun Gold Pty Ltd (Formerly Erlistoun Gold Nl) v Worth Investments Pty Ltd [1999] WASCA 3 [23] (White J, Parker J agreeing).

The second complaint is that the ASOC does not allege that the conspirators “acted with the sole or predominant intention of injuring the plaintiffs”.[100] This submission is based on a misconception about the kind of conspiracy that the ASOC pleads. The sole or predominant purpose is an element of the tort of conspiracy to injure by lawful means but is not an element of conspiracy to injure by unlawful means.[101] For the latter tort, it is enough if “one of the purposes of the conspiracy [was] to injure the plaintiff”.[102] Here, paragraphs 11 and 11A plead that the conspiracy was entered into “with the intention of causing [the plaintiffs] loss or damage”. The requisite element is therefore properly pleaded.
[100]Defendant’s Submissions [44(b)].
[101]Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 [13].
[102]Ibid.

The third complaint is that the ASOC does not allege any acts done in furtherance of the conspiracy. The defendant claims that the ASOC contains a bald allegation that the “delegates have ‘effected’ the ban” but does not allege any specific conduct to give effect to the ban.[103] This complaint is based on a misreading of the ASOC. The ASOC does not allege that the delegates “effected the ban”. Rather, paragraphs 11 and 11A allege that the delegates “effected each of the Concrete Ban Communications” and “each of the Boral-wide Ban Communications” (emphasis added). These “Communications” are defined in these respective paragraphs to mean the communications to the Victorian Constructions Principals and Subcontractors about the existence of the ban and the intention to enforce it by procuring the refusal of workers to work with Boral Products. It follows that the ASOC does plead an act done in furtherance of the conspiracy. That act is simply the making of these communications. The act is unlawful because it constitutes the tort of intimidation by the delegates.
[103]Defendant’s Submissions [44(c)].

The fourth complaint is that the ASOC does not identify “the alleged objects or victims of the conspiracy”.[104] To support this contention, the defendant relies[105] on the decision of the Federal Court in Australian Wool Innovation Ltd v Newkirk.[106] In Newkirk the objects of the conspiracy were said to be “the first to 104th applicants and/or the persons represented by AWIL (some 30,000 Australian wool growers)”.[107] Hely J held:[108]

If the objects of the conspiracy were all Australian wool growers, a question may arise as to whether such a conspiracy would be sufficiently targeted to be actionable at the suit of these particular claimants. A pleading of a single conspiracy, the objects of which may be 104 people or 30,104 people is embarrassing as a conspiracy takes its shape and scope from its objects, and a conspiracy defined in that way is shapeless…

[104]Defendant’s Submissions [44(d)].

[105]Ibid.

[106][2005] ATPR 42-053; [2005] FCA 290 (Newkirk).

[107]Ibid. [68(a)].

[108]Ibid.

The facts pleaded in the ASOC bear no resemblance to Newkirk. The ASOC pleads a conspiracy to give effect to a ban directed at six companies, all of which are obviously related. It is a conspiracy targeted at Boral companies. There is nothing “shapeless” about it.

With respect to the final complaint that the case pleaded against the defendant is so general that the defendant cannot know what is alleged against it, the plaintiffs submitted that to the extent that the complaint is a conclusion sought to be drawn from the earlier complaints, the conclusion falls with them and to the extent that it is meant to be an additional free-standing complaint, it is not a valid criticism of the ASOC but merely a series of bald assertions.

Consideration

I have addressed the question of the generality of the pleading and the sufficiency of the particulars of the ASOC in considering the pleading of the tort of intimidation. What was said there is equally applicable to the pleading of the conspiracy claim. The conspiracy pleading is pitched at the same level of generality as the intimidation pleading.

It was central to the defendant’s submission in relation to the alleged conspiracy between the defendant and its delegates that the identification of the parties to the conspiracy is critical because it was being alleged that the defendant conspired with the delegates to commit the tort of intimidation, but it is earlier alleged that it was the delegates that committed that tort and the defendant stood in their shoes, so it is therefore saying that the defendant conspired with itself to commit the tort. It is circular.

The first thing to note about the conspiracy claim in this connection is that it is an alternative claim. Paragraphs 11 and 11A begin “[a]lternatively to paragraph 7 [or 7A]”. It is not a claim as might have been made ‘further or in the alternative”. It is a true alternative to the claim of intimidation. As Mr Wood QC explained in argument, the claim was included because the plaintiffs apprehended that the defendant would deny that the delegates who the plaintiffs allege were authorised by the defendant to give effect to the policy were not so authorised. Thus, the notion that it is a claim of the defendant conspiring with itself is not a fair reading of the allegations made.

The fact that the pleading does not identify the delegates who are alleged to be conspirators does not mean that the claim of conspiracy does not disclose a cause of action. The identity of the delegates is not a material fact but a particular. The other matters to which I have referred above[109] from the submissions of the plaintiffs provide proper justification for upholding this pleading as sufficiently disclosing the cause of action of conspiracy to injure by unlawful means.
[109]Paragraph 97.

As I have said, the defendant assumed, or perhaps understood,[110] that the conspiracy was by lawful means, thus requiring an intention to injure, being “the sole, the true, or the dominating, or the main purpose”[111] of the conspiracy. The defendant contended that it was not clear from the pleading of the conspiracy claim that the allegation was a conspiracy by unlawful means.
[110]Defendant’s Reply Submissions at [27].
[111]In the words of Dixon J as he then was in McKernan v Fraser (1931) 46 CLR 343 at 362.

To the extent that it is now relevant, I find that hard to fathom. The heading to the relevant part of the ASOC is clear, it refers to conspiracy to injure “by intimidation”. In the context of the prior allegations of the tort of intimidation, that heading is clearly an indication of an illegal act. More importantly, the allegations in paragraphs 11 and 11A of the ASOC allege the conspiracy to communicate to Victorian Construction Principals and Subcontractors (or some of them) the existence of the ban of Boral Products and the intention of the defendant and the delegates to enforce the ban by procuring Refusals by Concrete Workers to Work with Boral and Alsafe Concrete, and Refusals by Construction Workers to Work with Boral Products. Each of these expressions are defined in paragraphs 7 and 7A, respectively, where the first two elements of the tort of intimidation are pleaded. The definitions are a short-hand means of picking up the core of the tort of intimidation.

It therefore seems to me to be clear, and it ought to have been clear to the defendant’s legal advisors, that the allegation is of the tort of conspiracy by unlawful means.

It follows from this that the complaint made by the defendant that the pleading of the tort of conspiracy was defective because it did not include an allegation that the conspirators acted with the sole or dominant intention of injuring the plaintiffs, is of no substance.

There was no dispute that ‘a sole or predominant purpose’ is an element of the tort of conspiracy to injure by lawful means. It was also not in issue that it is not an element of conspiracy to injure by unlawful means.[112] For the latter tort, it is enough if one of the purposes of the conspiracy was to injure the plaintiff.[113] Paragraphs 11 and 11A plead that the conspiracy was entered into “with the intention of causing [the plaintiffs] loss or damage”. The requisite element is therefore properly pleaded.
[112]Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 [13].
[113]Ibid.

In relation to the complaint that in paragraphs 11(b) and 11A(b) of the ASOC do not identify the delegates who are alleged to have effected the ban, it is clear on a proper reading of the allegations that it is the ban communications that are alleged to have been effected, and these are defined in paragraphs 11(a) and 11A(a). The use of the definitions makes the content of the allegations clear when read carefully. I accept the explanation given by the plaintiffs as referred to above at paragraph 99.

I also accept the submission of the plaintiffs in response to the complaint that the ASOC does not identify the objects or victims of the conspiracy (see paragraph 100 above).

Discretionary considerations

The defendant submitted, and the plaintiffs did not dispute, that although an irregular default judgment will usually be set aside as of right, the Court’s power to set aside default judgment under rule 21.07 is discretionary.

Commonly, the discretionary factors in relation to an application to set aside a regular default judgment are identified as:[114]
[114]Rosing v Ben Shemesh [1960] VR 173; Kostokanellis v Allen [1974] VR 596. See more recently Westpac v Perri [2013] VSC 290 (Westpac), [11]; Lubura v Nezirevic [2013] VSCA 215 [4] and Coxon v Duggan [2013] VSC 168, [2].

(a) Whether the defendant has a defence on the merits;

(b) The reason for the default of the defendant in consequence of which the judgment was obtained;

(c) Whether the application to set aside the judgment was made promptly after the judgment came to the knowledge of the defendant; and

(d) Whether, if the judgment is set aside, the plaintiff would be prejudiced in any respect which could not be adequately compensated for by a suitable award of costs and the giving of security.

The Court is not fettered by these four considerations. The Court in Rosing v Ben Shemesh[115] was not laying down inflexible rules, or a complete list of relevant criteria, for the exercise of discretion. The Court was recognising that the matters identified by Jenkins LJ in Grimshaw v Dunbar,[116] are among those proper to take into account: Xiao Hui Ying v Perpetual Trustees Victoria Ltd & Ors.[117]
[115][1960] VR 173.
[116][1953] 1 QB 408.
[117][2012] VSCA 316 at [68]-[69].

The defendant identified a number of discretionary factors which it submitted supported setting aside the default judgment in this case. They are, with the plaintiffs response to them, and my comments, set out in the following paragraphs.

Promptness of Application

The defendant asserts that it acted promptly to apply to have the default judgment set aside, after it had been served on 14 October 2013.[118]
[118]Nevill v Hanley (1993) 14 VLR 270.

The plaintiffs contended that this factor is of little weight and must be considered in the context of the defendant’s delaying tactics and its lack of co-operation with the Court and the plaintiffs up until this application was made.

The identification of the date of 14 October 2013 as the date from which the defendant’s ‘promptness’ is measured is curious. It is the date of the application by summons for the assessment of damages. The judgment to be set aside was entered on 21 May 2013. The defendants had filed an appearance on 9 September 2013 following the plaintiffs’ application for the defendant to be dealt with for contempt.

In my view the defendant has not acted promptly and this factor is decidedly against the exercise of discretion in its favour. The appropriate time for determining whether the defendant has acted promptly is when it became aware of the judgment. That is not revealed in the evidence. I infer from the numerous affidavits of service of process, orders and other documents that it is likely that the defendant became aware of the judgment soon after it was entered, or at all events by the time it entered an appearance on 9 September 2013, or shortly thereafter.

Perhaps the implication from the defendant identifying the date of 14 October 2013 (the date of the summons for assessment of damages) is that it did not become aware of the judgment until then. Even if that were so, and it is for the defendant to establish when it became aware of the judgment, the time from 14 October 2013 to the issue of the summons to set aside on 8 November 2013, is in the present circumstances of this case not a prompt application. Those circumstances include the history of the proceeding before the entry of judgment, (including the conclusion I have reached that the defendant deliberately did not appear at the hearings before Hollingworth J for reasons only it can explain, and has failed or refused to explain) and its conduct in appearing when the summons for contempt was served and brought on for hearing well after the entry of judgment.

Defence on the merits

The defendant submits it has a defence on the merits, as set out in a draft defence. That defence, I note, is not supported by any affidavit and does not go much further than the arguments advanced to support the proposition that the ASOC does not disclose a cause of action against the defendant, as referred to above.

The plaintiffs submitted that this factor is entirely irrelevant. Were this an application to set aside a regularly entered default judgment, in the ordinary course “an affidavit of merits” would have been required to be filed.[119] The defendant has made a deliberate decision not to go into evidence.[120] The “Draft Defence” has no status in the proceeding and it is telling that no officer of the defendant, or even one of its solicitors, has given evidence which addresses the merits of the claims pleaded in the ASOC.
[119]Chitty v Mason [1926] VLR 419, 423 (Dixon AJ).
[120]Directions were made by Mukhtar AsJ on 15 October 2013 for the defendant to file evidence on or before 8 November 2013.

In my view, if it were the case that I was satisfied that no cause of action was disclosed in the ASOC, I would set aside the judgment as a matter of right. Where, as here, I have not so concluded, it is of no utility in the exercise of the discretion. In short, as the plaintiffs submit, it is simply irrelevant.

Offer to pay the plaintiffs’ costs thrown away

The defendant ‘consents’ to paying the plaintiffs’ costs of applying for the default judgment.

The plaintiffs submit that this offer must be seen in the context of the overall cost and inconvenience the defendant has caused the plaintiffs to suffer in seeking legal redress and relief from the Court, only to find that the defendant has deliberately decided not to appear in the proceeding or to defend the proceeding, despite being on notice of the proceeding. In this respect the plaintiffs relied on the observations of French CJ in Aon Risk Services Australia Limited v Australian National University[121] where his Honour said that whatever costs are ordered, “there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings,” and that “the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system”.
[121](2009) 239 CLR 175 (at [5]).

This factor is, in my view, of limited value in real terms in the context of this proceeding, having regard to the course the proceeding has taken so far. The decision not to appear until 9 September 2013 was clearly deliberate.

Prejudice

The defendant submits that the plaintiffs have identified no prejudice they would suffer if the judgment were set aside, other than their costs of applying for default judgment.

The plaintiffs submit that they will suffer substantial prejudice by reason of losing the judgment. If the defendant were given leave to defend, the plaintiffs’ preparation of evidence relevant to the assessment of loss and damage would to some degree be wasted, the costs and uncertainty of a trial would become a reality for the plaintiffs for the first time since 20 May 2013 and the costs incurred by the plaintiffs in preparing the matter for trial would well exceed the costs of their application for assessment of damages. The delay in the plaintiffs obtaining relief would also be far more pronounced.

There is little evidence one way or the other to support or detract from the plaintiffs’ submission in this regard. The Court file reveals an extensive number of subpoenas have been issued by the plaintiffs, but I am unable to distinguish those that relate to the contempt proceedings from those that relate to the assessment of damages, and the submissions of the parties did not throw any light on the matter. The defendant contends that the work on the assessment of damages will not be thrown away, because, if the plaintiffs are correct in their claims, that work will be used in the assessment of damages at the end of the case.

In my view the work on the assessment of damages may well constitute costs and work thrown away if the judgment is set aside. Hypothetically, for the judgment to be set aside on the ground that the ASOC does not disclose a cause of action, the case advanced by the defendant must be found to be unsound in some respect. The result on this hypothesis is that the defendant may ultimately be successful in defending the claims on the merits. If that is right there is a risk that the costs and work on the assessment of damages will be found to have been wasted.

But the plaintiffs’ prejudice is greater than the mere costs and work thrown away. They have – in effect – been induced by the deliberate inaction of the defendant to proceed on the basis that they do have viable claims against the defendant. The defendant was served with the initial Statement of Claim and the Amended Statement of Claim, all applications and the affidavits in support of the applications, and all the orders of the Court. There were numerous telephone calls by solicitors for the plaintiffs confirming with officers of the defendant the receipt of various documents and orders. There were numerous media reports of the proceedings. This happened over a period from 26 February to 5 April 2013. There was no complaint along the way from the defendant that the claims made in the SOC and ASOC were not viable claims. If it were right, as the defendant contends, that those claims are not viable, then the prejudice to the plaintiffs is much greater than the costs and work done on the assessment of damages.

The assessment of damages will be impossible

The defendant contends that an assessment of damages based on the default judgment will be impossible because of the lack of any specific pleading in the ASOC of the conduct said to have caused loss and damage, in particular:

(a) The Court cannot quantify loss caused by the conduct of the defendant without knowing what that conduct was;

(b) The Court would first have to make findings about whether the alleged ban was enforced at any particular sites, and identify a causal relationship between that conduct and any loss claimed to have been suffered by one or more of the plaintiffs at those sites.

These two matters impose an impossible task in circumstances where the pleadings do not identify any third party against whom on any particular occasion any ban was enforced – let alone by what means. In short, the “assessment of damages” would inevitably become a de facto trial in respect of causation.

The plaintiffs responded to these propositions, as follows:

(a) That in paragraphs 12-14 of the ASOC the plaintiffs identify the conduct causing damage, being the making of communications pleaded at paragraphs 7, 7A, 11(b) and 11A(b);

(b) That the assessment necessarily involved an inquiry by the Court about whether the ban was enforced at any particular sites and the identification of what loss was caused by that conduct at those sites. That is an unremarkable feature of the assessment process and is just the kind of task that an Order 51 assessment of damages by the Court should involve;

(c) The effect of the default judgment is that the defendant is taken to admit all the material facts in the ASOC. The evidence which the plaintiffs adduce to demonstrate their respective losses, will of necessity identify each particular construction site where the defendant’s ban –which the defendant is taken to admit that it resolved upon and enforced – was complied with by a particular Principal or Subcontractor. At the Order 51 assessment, the plaintiffs will also adduce evidence that demonstrates that the relevant Principal or Subcontractors would have placed orders for the plaintiffs’ products and materials in the ordinary course but for the defendant’s ban;

(d) The defendant will be able to appear at the hearing under r 51.02 and submit that the plaintiffs have not proved any loss. If that submission is accepted, of course there will be no order for damages made in their favour. That, of course, would be the plaintiffs’ concern, not the defendant’s concern.

The submissions of the defendant in respect of the difficulty of the assessment of damages are curious indeed. The burden of the submission seems to be that the plaintiffs cannot achieve a satisfactory assessment of damages on the current pleading of the claims. In short, the defendant says the assessment is impossible. If that is so, I should have thought the defendant would say nothing against the process now and save its submissions for the assessment of damages hearing, where they have the right to appear and oppose on any proper ground available.

Apart from the answers given by the plaintiffs as referred to above, it seems to me that if the defendant is correct in its contention that the assessment is impossible, then so be it. It is in my view inappropriate for me to say whether or not the plaintiffs are correct about the way they contend an assessment of damages will proceed. That will be for the Court as constituted at the time of the assessment to deal with.

In reality, the defendant’s submission on this aspect of the exercise of the discretion was just another way of submitting, as it did as referred to above, that because of the level of generality of the pleading there were insufficient particulars of the alleged material facts and for this reason the Court should conclude that the ASOC did not disclose a viable cause of action.

Finally, the defendant submitted that:

(a) In the absence of any prejudice to the plaintiffs that cannot be cured by an order for costs, the Court should not refuse the application to set aside the default judgment only because there is no explanation for the default;[122] and

(b) In this case, it would be unjust to allow the default judgment to stand and prevent the defendant from defending the proceeding. The ASOC purports to plead interference with business by unlawful means (or possibly the tort of intimidation) and conspiracy to injure, on the flimsiest of factual bases.

[122]Linkenholt v Quirk [2000] VSC 166, [17], [21].

For all the reasons I have given in dealing with the multitude of arguments advanced by the defendant, I reject these last submissions.

SCHEDULE OF AFFIDAVITS RELIED ON BY THE PLAINTIFF

1 Second Affidavit of Rodney William Marshall affirmed 27 February 2013.

2 Fourth Affidavit of Rodney William Marshall affirmed 28 February 2013.

3 Third Affidavit of John Biondo sworn 6 March 2013.

4 Affidavit of Deanna Oberdan affirmed 7 March 2013.

5 Affidavit of Alexandra Louise Terrill sworn 4 April 2013.

6 Second Affidavit of Alexandra Louise Terrill sworn 20 May 2013.

7 Fourth Affidavit of Alexandra Louise Terrill sworn 22 November 2013.

8 Eight affidavits of process servers, being:

(a) Affidavit of Ashley Scates regarding service sworn 27 March 2013.

(b) Affidavit of Ashley Scates regarding service sworn 19 May 2013.

(c) Affidavit of Ashley Scates regarding service sworn 23 August 2013.

(d) Affidavit of Paul Crozier regarding service sworn 19 November 2013.

(e) Affidavit of Ashley Scates regarding service sworn 19 November 2013.

(f) Affidavit of Ashley Scates regarding service sworn 19 November 2013.

(g) Affidavit of Ashley Scates regarding service sworn 21 November 2013.

(h) Affidavit of Paul Crozier regarding service sworn 21 November 2013.

SCHEDULE OF PARTIES

BORAL RESOURCES (VIC) PTY LIMITED (ACN 004 620 731)	First Plaintiff
ALSAFE PREMIX CONCRETE PTY LTD (ACN 003 290 999)	Second Plaintiff
BORAL BRICKS PTY LTD (ACN 082 448 342)	Third Plaintiff
BORAL MASONRY PTY LTD (ACN 000 223 718)	Fourth Plaintiff
BORAL AUSTRALIAN GYPSUM LTD (ACN 004 231 976)	Fifth Plaintiff
BORAL WINDOW SYSTEMS LTD (ACN 004 069 523)	Sixth Plaintiff
- and - CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION	Defendant

[2014] VSC 429

10 September 2014