Redeemer Baptist School Limited v Glossop and 4 Ors

[2006] NSWSC 582

CITATION:	Redeemer Baptist School Limited v Glossop & 4 Ors [2006] NSWSC 582
HEARING DATE(S):	13 June 2006
JUDGMENT DATE :	20 June 2006
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	Application for relief sought in paragraph 1 of the Amended Notice of Motion refused. Save for the claim made in paragraph 3, the Notice of Motion is otherwise dismissed. The Defendants are to pay the costs of the Notice of Motion to date. Exhibits may be returned.
CATCHWORDS:	TORT OF CONSPIRACY - anomalous cause of action - object and purpose of those acting in concert - disclosure of reasonable cause of action - striking out of pleading and summary dismissal.
LEGISLATION CITED:	UCPR Part 13 Rule 13.4, Part 14 Rule 14.28, Part 15 Rule 3, Rule 10
CASES CITED:	Little v Law Institute of Victoria (No 3) [1990] VR 257 The Law of Torts, Fleming, Ninth Edition, p 772
PARTIES:	Redeemer Baptist School Limited (Plaintiff) Graeme Francis Glossop (First Defendant) David Ridley (Second Defendant) Andrew Frost (Third Defendant) Graham Merrick (Fourth Defendant) Parramatta Accountants and Tax Agents Pty Limited (Fifth Defendant)
FILE NUMBER(S):	SC 20275/05
COUNSEL:	Mr N Perram/Mr A D Crossland (Plaintiff) No Appearance (Second Defendant) Mr B A M Connell/Ms J E Thornton (First, Third, Fourth and Fifth Defendants)
SOLICITORS:	Carroll & O'Dea (Plaintiff) Walker Smith Solicitors (Second Defendant) Champion Legal, Solicitors (First, Third, Fourth and Fifth Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Tuesday, 20 June 2006

20275 of 2005 Redeemer Baptist School Limited v Graeme Francis Glossop & 4 Ors

JUDGMENT

1 His Honour: The Plaintiff is a School. The claim that it presently wishes to propound is presented in a Draft Amended Statement of Claim (Exhibit 1).

2 The claim has been said to be one of conspiracy to injure by lawful means. This tort has been described by Professor Fleming (The Law of Torts, Ninth Edition p 772) as one that has remained anomalous. The elements of such a tort are well established. In Little v Law Institute of Victoria [1990] VR 257 at 271-2, Kaye and Beach JJ said:

“[a] statement of claim pleading tortious conspiracy must allege an agreement or combination between defendants to injure or harm the plaintiff, overt acts of the defendants in furtherance of the agreement or combination, and consequential injury or damage suffered by the plaintiff … the pleadings do not disclose a cause of action unless the allegations of overt acts as pleaded are capable of sustaining the conclusion that the predominant purpose of the respondent’s agreement was to injure the appellant in the practice of his profession”.

3 The First, Third, Fourth and Fifth Defendants (the “Defendants”) proceed on an Amended Notice of Motion. The orders sought therein include the following:-

1. The proceedings be dismissed pursuant to UCPR Part 13 Rule 13.4 or alternatively struck out pursuant to Part 14 Rule 14.28 generally, or alternatively against each of the First, Third, Fourth and Fifth Defendants.

2. Alternatively an Order that the proceedings be stayed.

3. Further in the alternative that the Plaintiff provide further particulars pursuant to UCPR Part 15 Rule 3 or Part 15 Rule 10.

4 In support of the application the Defendants rely on affidavits sworn by Mr Bray. The affidavits depose to material relating inter alia to demonstrations and media releases. They also annex copy correspondence between the parties. Broadly speaking, the Plaintiff contends that there was a campaign to cause injury by demonstrations and release of material to the media. The affidavit material contains documentation that has relevance to the question of the object and purpose of those said to be acting in conceit.

5 I shall briefly refer to the structure of Exhibit 1. Paragraph 3 pleads an agreement made in about November 2004 by the First, Second, Third and Fourth Defendants that they would cause harm to the School by doing certain things (the things are identified in (a) – (j) thereof). Paragraph 4 alleges that the predominant purpose in entering into the agreement was to injure the Plaintiff. Paragraph 5 pleads that the agreement was carried into effect by the performance of certain acts (the acts are identified in (a) – (h) thereof). Paragraph 6 and 7 plead that by reason of those acts loss was suffered by the School (being loss in the nature of a decline in enrolment and the consequential reduction in State and Federal Government funding).

6 The parties have relied on lengthy and detailed written submissions. These submissions have been supplemented by oral argument. Whilst I have had regard to all of this material, I do not propose to make express reference to each and every submission.

7 The claim for a stay of proceedings has not been argued and is not pressed. The parties have been informed that should there be a need to consider questions of the provision of further particulars, such questions can be dealt with by a Registrar. Accordingly, the Court is now left to deal with only two matters (the striking out of an alleged defective pleading and an application for summary dismissal).

8 The Second defendant is not a party to the present application and did not appear. No claim for damages is made against the Fifth Defendant and the Court has been informed that it has been made a party to the proceedings for other purposes.

9 The outline of the First, Third, Fourth and Fifth Defendants submissions contains inter alia the following:-

“2) The bases for the motion are:
(1) The claim of the plaintiff is one of conspiracy to injury by lawful means. The plaintiff has not pleaded and particularized a case to answer as to there being the required dominant purpose to injure the plaintiff by any of the defendants, as distinct from a purpose to pursue their own objective even at the expense of the plaintiff, let alone a common intention to do so.
(2) The plaintiff’s claim is for injury to reputation. This is not available except in an action for defamation.
(3) The plaintiff has not pleaded or particularized a case that the damage alleged was caused by the execution of the conspiracy alleged.
(4) It is submitted that the plaintiff’s case is hopeless. The orders sought (or such other orders as the Court deems fit) are to the intent that they would be the end of the action.
32) The pleading and particulars establish no causal connection between the alleged overt acts and the damage claimed (See Affidavit of David J Bray sworn 20 December 2005 pp 34, 36 and letter dated 23 January 2006. The case presented is one of pure speculation. Damage is the gist of the action for conspiracy and on this pleading it must fail.
33) In any event, if the overt acts did cause a drop off in enrolments, that is merely damage arising from a general loss of reputation which is not available in a claim of conspiracy: Lonrho plc & Ors v Fayed & Ors (No 5) [1994] 1 All ER 188.”

10 It seemed to be common ground that a critical issue was the object and purpose of those said to be acting in conceit (was the sole or predominant motive to advance an interest of their own rather than to cause injury to the Plaintiff).

11 Generally speaking I consider that the submissions made on behalf of the Defendants labour under certain confusion.

12 In my view, the submissions made to the effect that Exhibit 1 is a defective pleading are misconceived. Paragraph 4 clearly pleads that the predominant purpose in entering into the agreement was to injure the Plaintiff. I consider that the claim for damages is not one made in respect of injury to reputation (this is made clear by paragraphs 6 and 7). The claim for damages is made in respect of pecuniary loss (loss of School fees and the reduction in State and Federal Government funding). Paragraph 6 clearly pleads that the alleged loss was suffered by reason of the acts referred to in paragraph 5. In my view, the necessary elements of the tort have been pleaded. I am not satisfied that the pleaded overt acts are incapable of sustaining the conclusion that the predominant purpose was to injure the Plaintiff. I consider that the Defendants have failed to demonstrate that Exhibit 1 does not disclose a reasonable cause of action.

13 The granting of the remedy of summary dismissal is discretionary. It is the subject of well-established authority which binds this Court. The applicant bears the onus of demonstrating what may be described as a clear case. If the material leaves the Court in a state of doubt, the application fails.

14 The contention of the Defendants is that the claim is hopeless. In my view, they have failed to discharge the onus borne by them.

15 It seems to me that the material that is before the Court throws up triable issues (including the questions as to the object and purpose of those said to be acting in concert). If the Court is to resolve these issues, I consider that they should be dealt with at trial.

16 The cause of action relied on by the Plaintiff has a degree of uniqueness. This consideration also leads me to the view that summary relief is inappropriate in the circumstances of this case.

17 The application for the relief sought in paragraph 1 of the Amended Notice of Motion is refused. Save for the claim made in paragraph 3, the Notice of Motion otherwise is dismissed. The Defendants are to pay the costs of the Notice of Motion to date. The Exhibits may be returned.

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