JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: LAYNE CHRISTENSEN COMPANY & ORS -v- STANLEY & ORS [2005] WASC 169
CORAM: MASTER SANDERSON
HEARD: 31 MARCH 2005
DELIVERED : 3 AUGUST 2005
FILE NO/S: CIV 2465 of 1999
BETWEEN: LAYNE CHRISTENSEN COMPANY
First Plaintiff
STANLEY MINING SERVICES PTY LTD (ACN 009 117 533)
Second PlaintiffWEST AFRICAN DRILLING SERVICES PTY LTD (ACN 084 615 396)
Third PlaintiffWEST AFRICAN DRILLING SERVICES (NO 2) PTY LTD (ACN 085 066 655)
Fourth PlaintiffAND
ROSS FRANCIS STANLEY
First DefendantAZILIAN PTY LTD (ACN 008 952 681)
Second DefendantDAVID HARPER
Third DefendantGEODRILL LTD
Fourth DefendantSIERRA BAY PTY LTD (ACN 009 420 455)
Fifth Defendant
Catchwords:
Practice and procedure - Application to strike out statement of claim - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Plaintiff : Mr M J McCusker QC & Mr J A Thomson
Second Plaintiff : Mr M J McCusker QC & Mr J A Thomson
Third Plaintiff : Mr M J McCusker QC & Mr J A Thomson
Fourth Plaintiff : Mr M J McCusker QC & Mr J A Thomson
First Defendant : Mr W S Martin QC & Ms P M Tantiprasut
Second Defendant : Mr W S Martin QC & Ms P M Tantiprasut
Third Defendant : Mr D M Stone
Fourth Defendant : Mr D M Stone
Fifth Defendant : Mr W S Martin QC & Ms P M Tantiprasut
Solicitors:
First Plaintiff : Baker & McKenzie
Second Plaintiff : Baker & McKenzie
Third Plaintiff : Barker & McKenzie
Fourth Plaintiff : Barker & McKenzie
First Defendant : Fairweather & Lemonis
Second Defendant : Fairweather & Lemonis
Third Defendant : Williams & Hughes
Fourth Defendant : Williams & Hughes
Fifth Defendant : Fairweather & Lemonis
Case(s) referred to in judgment(s):
Alfred MacAlpine Construction Ltd v Panatown Ltd (2001) 1 AC 518
Andar Transport Pty Ltd v Brambles Ltd (2004) 206 ALR 387
Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (1991) 1 VR 637
Council for the city of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135
Dawnay, Day & Co Ltd v D'Alphen (1997) IRLR 442
Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473
Hamilton v Whitehead (1988) 166 CLR 121
Idoport Pty Ltd v National Australia Bank [2001] NSWSC 328
Layne Christensen Company v Stanley [2002] WASC 249
Linden Gardens Trust Ltd v Lenesta Sludge Disposals (1994) 1 AC 85
Little v Law Institute of Victoria (1990) VR 257
Multinail Australia Pty Ltd v Pryda (Aust) Pty Ltd [2002] QSC 105
O'Brien v Dawson (1941) 41 SR(NSW) 295; (1942) 66 CLR 18
Rutherford v Poole (1953) VLR 130
Stenhouse v Phillips (1974) AC 391
Winterton Constructions Pty Ltd v Hambros Australia Ltd & Anor (1991) 101 ALR 363
Case(s) also cited:
Alliance Paper Group plc v Prestwich [1996]…
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- Case
- [2005] WASC 169
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the claims were sufficiently pleaded to avoid being struck out as disclosing no reasonable cause of action. The defendants argued that the plaintiffs had not adequately alleged the conspiracy and that some parts of the statement of claim were too vague. The plaintiffs contended that the conspiracy was adequately pleaded and that they had provided sufficient particulars.
The court found that the conspiracy had been adequately pleaded and that the plaintiffs had particularised the relevant facts. The court held that the plaintiffs had provided sufficient detail about the alleged conspiracy, including the participants, the agreement, the unlawful acts, and the loss and damage. The court also found that the complaints about the vagueness of certain paragraphs could be cured by a request for further particulars. The court concluded that the claims should not be struck out, but that the defendants could request further particulars if needed.
The court ordered that the defendants could request further particulars to clarify certain aspects of the claim. However, the court held that the claims should not be struck out at that stage. The court found that the plaintiffs had sufficiently pleaded the conspiracy and that the defendants could seek further particulars if needed to respond to the claim.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Counsel for the plaintiffs pointed out that the allegations pleaded in pars 66A – 66C incorporate the matters pleaded in par 65. These matters have been particularised: see Harper and Geodrill's first and second answers to requests 12 and 13 for further and better particulars of amended statement of claim dated 12 December 2001. Even leaving that aside, it seems to me that the conspiracy has been adequately pleaded. The natural individuals said to be participants in the conspiracy are Stanley and Harper. The alleged agreement has Harper having resigned from SMS and serving as a director and employee of Geodrill. This allegation is pleaded in par 65(a) and (b). It is further particularised as an oral agreement made in face‑to‑face conversations and telephone conversations in or about late 1997: answer to request 13 of the particulars referred to above. The agreement of the corporate participants in the alleged conspiracy is to be inferred as having commenced from the time when they were requested by their directors (Stanley and Harper) to participate in the agreements reached by those directors in their personal capacities. These matters are pleaded in par 65(d), (da), (ga). The unlawful acts are pleaded in pars 66A and 66B. It is said that each of the acts is unlawful as either a breach of the Consulting Agreement by Stanley or as an interference with his contractual relations by the other conspirators. Such a plea of unlawfulness is sufficient: see Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (1991) 1 VR 637 at 687. The unlawful means pleaded is that the conspirators conspired with intent to injure as alleged in par 66A. The intention so it is said may be inferred from the nature of the averred acts in par 65. The loss and damage arises as a consequence of the nature of the conspiracy alleged - that is a conspiracy to operate a business which competes with or solicits the customers of SMS, WADS 1 and WADS 2. That it is said is a breach of the non‑competition and non‑solicitation covenants. Overall, I am satisfied this plea is proper and that it should stand. In their written submissions (par 60) the plaintiffs concede that there may be grounds for ordering further particulars. At present, I would not order that further particulars be provided. However, it may be that a request would be appropriate to allow Stanley, Azilian and Sierra Bay to clarify the position. Complaint is made by Stanley and Azilian as to par 42A of the minute. It is said that there are no material facts pleaded to justify a conclusion (as the paragraph is alleged to be) that Stanley "caused or procured" Harper and Geodrill to solicit orders for drilling services in West Africa from customers of the plaintiffs. In my view, any complaint Stanley, Azilian and Sierra Bay have about this plea can be cured by a request for particulars. I would not be prepared to strike it out. Finally, there are complaints made about pars 67 - 69. These paragraphs allege that Sierra Bay has since May 1998 acted as agent for and on behalf of Stanley or in the alternative as the alter ego for Stanley. The plaintiffs say that the question of the agency of Harper or Geodrill is a matter of evidence. They further say that agency may be inferred from the conduct referred to in pars 67 and 68 and the conduct pleaded in pars 55, 59 and 62. I am satisfied there is sufficient pleaded to allow Stanley, Azilian and Sierra Bay to know the case they have to meet. I would not strike out these paragraphs.