Trade Practices Commission v Allied Mills Industries Pty Ltd

[1980] FCA 133

Re: TRADE PRACTICES COMMISSION
And: ALLIED MILLS INDUSTRIES PTY. LIMITED (1980) 48 FLR 102
No. V.G.29 of 1979
Practice and Procedure - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard, J.(1)

CATCHWORDS

Practice and Procedure - applications to strike out whole or part of statement of claim - particulars of arrangements, understandings and conspiracies said to be vague and unspecific - significance of particulars of parallel pricing - allegations of conspiracy to make unlawful arrangements and enter into unlawful understandings - Trade Practices Act 1974, ss.45(2), 76(1)(f)

Practice - Applications to strike out whole or part of statement of claim - Particulars of arrangements, understandings and conspiracies said to be vague and unspecific - Particulars of parallel pricing - Allegations of conspiracy to make arrangements or enter into understandings contrary to Trade Practices Act - Trade Practices Act 1974 (Cth), ss. 45 (2), 76 (1) (f).

HEADNOTE

In applications by each of the respondents to strike out the whole or part of the amended statement of claim alleging a number of breaches by the respondents of s. 45 of the Trade Practices Act 1974, and conspiracies to breach the Act.

Held: (1) On a summary application a court should hesitate to strike out a statement of claim on the groundss that the allegations taken together with the particulars thereof are so scanty as, in reality, to be no allegations at all. Even if it is difficult to imagine how admissable evidence will be led sufficient to support the allegations contained in the statement of claim, it should not be struck out unless the party seeking this remedy can show that there is no real question to be tried or no cause of action. "Parallel conduct" might itself provide the circumstantial evidence from which an arrangement or understanding in contravention of the Trade Practices Act could be inferred.

Trade Practices Commission v. Email Ltd. (1980), 43 FLR 383, considered.

In the present case "parallel conduct" is not the sole allegation made against the respondents. Notwithstanding the vague and unspecific nature of the allegations against the respondents, particularly against the third respondent, as it was impossible to say that there was "not a real question to be tried", the application to strike out the statement of claim must be dismissed.

Dey v. Victorian Railways Commissioners (1949), 78 CLR 62; General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964), 112 CLR 125, followed.

(2) In relation to the allegations of conspiracy made against the respondents, on close analysis it was plain that the conspiracies alleged were also the arrangements or understandings alleged in the other paragraphs of the statement of claim. It is not appropriate to charge as an alternative to an arrangement or understanding made unlawful by s. 45 of the Trade Practices Act, conspiracies which are themselves such arrangements or understandings. Therefore such allegations of conspiracies as were contained in the statement of claim should be struck out.

Ward v. Lewis, (1955) 1 WLR 9, applied.

Rubenstein v. Truth and Sportsman Ltd., (1960) VR 473, referred to.

HEARING

Sydney, 1980, September 18-19, 25. #DATE 25:9:1980

APPLICATIONS.

Applications by each of the respondents to strike out the whole or parts of the statement of claim.

The facts appear in the judgment.

K. R. Handley Q.C. and J. O. North, for the applicant.

R. V. Gyles Q.C. and W. W. Caldwell, for the first, sixth and seventh respondents.

R. Macfarlan, for the second and eighth respondents.

T. E. F. Hughes Q.C., M. H. McHugh Q.C. and J. Strahan, for the third respondent.

B. A. Beaumont Q.C. and G. Q. Taperell, for the fourth respondent.

D. G. Williamson Q.C. and A. C. Archibald, for the fifth respondent. Cur. adv. vult.

Solicitor for the applicant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the first, sixth and seventh respondents: Sly & Russell.

Solicitors for the second and eighth respondents: Dawson Waldron.

Solicitors for the third respondent: Stephen Jaques & Stephen.

Solicitors for the fourth respondent: Baker & McKenzie.

Solicitors for the fifth respondent: Middletons Oswald Burt & Co.

D. LEVIN

ORDER

1. The applications to strike out the whole of the statement of claim be dismissed.

2. The applications to strike out paragraphs 13, 15, 17 and 19 thereof be upheld and those paragraphs struck out accordingly.

3. The balance of notices of motion and question of costs stood over to 29 September, 1980.

JUDGE1

These are applications by each of the respondents to strike out the whole or part of the amended statement of claim in this matter. I shall hereafter refer to the amended statement of claim as the statement of claim. The applications are made notwithstanding the fact that all respondents have pleaded to the statement of claim, and that they have had discovery and answers to interrogatories by the applicant. No argument was put that the applications were too late, no doubt because the furnishing by the applicant of particulars of allegations in the statement of claim has been an on-going process. Until particulars were finally furnished, the respondents could not be sure what case they had to meet.

Two submissions of substance were made. The first was that the statement of claim, when read with the particulars, disclosed no cause of action against any of the respondents, with the result that it should be struck out in its entirety. The second was that those paragraphs of the statement of claim which charged conspiracy on the part of the corporate respondents should be struck out.

The paragraphs of the statement of claim, other than those alleging conspiracy, allege a number of breaches of s.45 of the Trade Practices Act 1974. The principal allegations are that the corporate respondents made arrangements, or entered into understandings, which are in breach of that section. The particulars furnished both in the statement of claim itself and by letter, purport to give particulars of the arrangements or understandings which are relied upon. The particulars so furnished are not identical as regards each respondent.

The essence of the first submission was that the particulars furnished against each respondent in respect of the material paragraphs of the statement of claim, both those alleging breaches of s.45 and those alleging conspiracy, were so scant as to be no particulars at all. Furthermore, so it was submitted, the position plainly revealed by a consideration of the statement of claim and the particulars, was that if evidence of the matters specified in the particulars were led, there would be, at the end of the applicant's case, no evidence of any of the arrangements, understandings or conspiracies relied upon by the applicant. The submission was that this was clear to demonstration. The case was thus said to be within that class of case where the Court will exercise its summary powers; Dey v. Victorian Railways Commissioners((1949) 78 C.L.R. 62) and General Steel Industries Incorporated v. Commissioner for Railways (N.S.W.) ( (1964) 112 C.L.R. 125).

It was agreed that the strongest case for the striking out of the entirety of the statement of claim could be made by the third respondent, the particulars of matters implicating it being the least specific. If its argument were to fail, those of the other respondents must meet a similar fate. If on the other hand the application of the third respondent were to be upheld, it would be necessary to consider the particulars against each respondent in turn in order to decide whether the result should be the same in the cases brought against them. The separate argument in relation to the paragraphs alleging conspiracy is founded on different considerations. In relation to it, all respondents stand in a similar situation.

It is necessary that I should now refer to the statement of claim and to particulars relied upon in support of it. The particulars which I mention are those given in respect of the allegations made against the third respondent of its involvement in the arrangements, understandings and conspiracies said to have existed. The relevant paragraphs of the statement of claim are paragraphs 12, 13, 14, 15, 16, 17, 18, 19, 29 and 30. To each of these paragraphs were appended certain particulars. Paragraphs 12, 14, 16 and 18 allege the making by the corporate respondents of arrangements, or the entering into by those respondents of understandings, which were unlawful by reason of the operation of s.45(2)(a) of the Act in the form in which it was before it was amended in 1977 (Act No.81 of 1977). Paragraph 29 alleges that the same respondents, until 30 June 1977, gave effect to such arrangements or understandings. Paragraph 30 alleges that the corporate respondents on and after 1 July 1977 gave effect to the same arrangements or understandings. The difference between paragraphs 29 and 30 is explained by the coming into force of the Trade Practices Amendment Act 1977 on 1 July 1977. Paragraph 29 alleges breaches of s.45(2)(b) of the Act in the form in which it was prior to 1 July 1977. Paragraph 30 alleges breaches of s.45(2)(b) of the Act as it was thereafter. Effectively, however, both paragraphs allege that the corporate respondents gave effect to the arrangements and understandings made or entered into as alleged in the earlier paragraphs.

Paragraphs 13, 15, 17 and 19 of the statement of claim allege a series of conspiracies against the corporate respondents. In each case the conspiracy alleged is one in which the respondents are said to have conspired together to make an arrangement, or enter into an understanding charged in the preceding paragraphs. For instance, the conspiracy alleged in paragraph 13 is that the corporate respondents, in and between June and October 1976, conspired together to make an arrangement or enter into an understanding whereby the prices at which the corporate respondents would sell liquid glucose would be increased as from October 1976 or thereabouts.

The charges of conspiracy are based upon s.76(1)(f) of the Act, which provides in effect that if the Court is satisfied that a person has conspired with others to contravene a provision of Part IV of the Act, the Court may order the person to pay to the Commonwealth the penalties provided for in the section. Section 45 is in Part IV of the Act.

I should pause to say that, during the argument, senior counsel for the third respondent provided a useful abridgement of the statement of claim which contains the paragraphs of the statement of claim to which I have referred, and others as well. It provides a convenient method of referring to the relevant parts of the statement of claim. Accordingly I have appended copies of it to this judgment, rather than copy out within it in extenso the various provisions.

I should next refer to the particulars forming part of the statement of claim. Those appended to paragraph 12, insofar as they relate to the third respondent, say that the arrangement was made, or the understanding was entered into at or as a result of meetings and other communications between representatives of the corporate respondents in and between June and October 1976. The meetings were said to include a meeting on or about 6 September 1976 at the premises of the Flour Millers Council of New South Wales, at which representatives of the corporate respondents were present. The arrangement or the understanding was to the effect that the corporate respondents would increase their prices for liquid glucose to about $275 per tonne for glucose delivered in bulk by tankers, that there would be a surcharge for deliveries in drums, that there would be a surcharge for supplies to customers of any other corporate respondent, and that the increase would take effect as from October 1976 or thereabouts. It was further and alternatively said that the arrangement or the understanding was initiated at the meetings referred to above, and during other communications in and between June and October 1976 later particularised, and so made or entered into when the corporate respondents proceeded to act in the manner discussed during such meetings and communications, and were able to observe that each of the other corporate respondents was also acting in like manner. Each of the corporate respondents was said to have notified its customers in about September 1976 that its prices for liquid glucose would be increased as from October 1976 or thereabouts, and in October 1976 or thereabouts the corporate respondents in fact increased their prices in the manner particularised above. A number of communications were then specified. The only category of communication affecting the third respondent was said to be communications between representatives of the corporate respondents on or about 23 August 1976.

The particulars were amplified in a letter dated 27 November 1979 written by the applicant's solicitor to the third respondent's solicitor. Relevantly, that letter said that representatives of the third respondent were alleged to have been present at only two of the meetings referred to in the particulars appended to paragraph 12 of the statement of claim. I should interpose to say that the particulars seem only to allege the presence of the third respondent at one of the meetings particularised in that paragraph. One of the meetings referred to in the particulars provided in the letter of 27 November 1979 is alleged to have been a meeting on or about 6 September 1976. One Mr. J. N. Love is alleged to have been the representative of the third respondent present at such meeting. The particulars state that the meeting discussed the over-supply of glucose on the Australian market, the extent of the competition existing in that market, and the raising of prices for liquid glucose. The third respondent sought further particulars of the meeting referred to. No further particulars to those set out above have been provided. A letter from the applicant's solicitors dated 29 May 1980 said that the applicant was unable to give the substance of specific statements made during the course of the discussions by any particular participant.

The only other meeting at which a representative of the third respondent is alleged to have been present was particularised as follows:
"The meeting was held during the week ending 16 September 1976 in Sydney. The name of the person present at the meeting as the representative of the third respondent is not presently known to the applicant. The substance of the discussion was the raising of the prices for liquid glucose".
No further particulars of the substance of the discussion at this meeting have been provided. The applicant's solicitors' letter of 29 May 1980 said:
"The applicant is unable to provide further particulars of the substance of the discussions".

The third respondent also sought particulars of the basis upon which it was alleged that one of the persons present was a representative of the third respondent. The applicant's solicitors said that the applicant was unable to provide further particulars.

The third respondent also sought particulars of the other communications there referred to. Only one such communication is alleged to involve representatives of the third respondent. The particulars say:
"The communication took the form of discussions between the persons present on or about 23 August 1976. Representatives of the first, second, third, fourth and fifth respondents were present. Messrs. Street and Schrader represented the first respondent. The names of the other representatives are presently not known to the applicant. It will be alleged that the communication included discussions on the marketing of glucose and the raising of prices for liquid glucose."

The third respondent sought particulars of the basis upon which it was alleged there was a representative of the third respondent present at the meeting. The applicant's solicitors said that the applicant was unable to provide further particulars. The third respondent also sought further particulars of the substance of the communication and discussion at the meeting. The following particulars were furnished:
"The substance of the discussion was a proposal by Manildra that it would cease the manufacture of glucose provided it could be given an assurance of sale of the flour produced by it and at that time used in the production of glucose. The marketing of glucose by Allied Mills and by other companies was discussed in general terms. The applicant is unable to provide further particulars."

Paragraph 14 of the statement of claim has particulars appended to it. They say:
"The applicant refers to and repeats the particulars to paragraph 12 and will also rely upon the inferences to be drawn from the subsequent conduct of the corporate respondents referred to in paragraphs 29 and 30 hereof."

I have already mentioned the allegations made in paragraphs 29 and 30. The particulars appended to those paragraphs are the same. They say:
"The corporate respondents and each of them abided by the said arrangements and understandings and complied with and implemented the same."

Further particulars of the notifications of price increases have been supplied. Further particulars of the actual increases of prices have also been supplied. These are to a degree incomplete and additional particulars are being supplied by the applicant's solicitors.

Particulars of the conspiracies which were furnished in support of paragraphs 13, 15, 17 and 19 of the statement of claim were identical with the particulars furnished in support of the arrangements and understandings, save that the applicant does not rely on the notification of price increases or the actual charging of increased prices as evidence of them.

I agree with submissions by senior counsel for the third respondent that particulars of its involvement in meetings at which it is alleged that there were discussions about the raising of the prices for liquid glucose are scant. The applicant is unable to say what was said at the meetings; it is unable to say what part in them the third respondent's representative took; and it is unable to say who the third respondent's representative at the second meeting was. It was in these circumstances that counsel submitted that the particulars were no particulars at all. It was inconceivable, so his submission ran, that there could be evidence of a meeting yet no evidence of what was said at it, and that there could be evidence that the third respondent had a representative at a meeting yet no evidence to identify him. Accordingly, the allegation that the third respondent had been present at two meetings at which the raising of prices for liquid glucose had been discussed ought to be put aside.

That left the allegations concerning the notification of price increases and the actual prices charged as from October 1976. These should, so it was submitted, be regarded as the only allegations in the statement of claim against the third respondent upon which the applicant could rely. It was then submitted that allegations of notifications of price increases and the charging of those increases could not be evidence of the arrangements and understandings charged against the third respondent. It was not charged, as I have mentioned, that they were evidence of the conspiracies. In the colourful example provided by senior counsel for the second respondent, who supported the submissions made on behalf of the third respondent, the fact that 100 mice, when released from a cage, will make for the cheese does not suggest they had a meeting and reached an understanding before doing so.

The problem was recently dealt with by Lockhart J. in Trade Practices Commission v. Email Limited (1980) 2 A.T.P.R.42367. His Honour said (p.42370):

"Parallel conduct may constitute circumstantial evidence from which an arrangement or understanding may be inferred. It depends on the facts of each case. In the present case, the respondents point to a large number of matters in support of their contention that the inference of an arrangement or understanding cannot be supported. Plainly, when a credible explanation is given by a defendant it may be sufficient to negate the inference of an arrangement or understanding: see TPC v. Nicholas Enterprises Pty. Limited (1979) ATPR 140-126, p.18,333 especially at p. 18,344.

In the U.S.A. there is powerful authority for the proposition that, while parallel business conduct may provide circumstantial evidence from which an inference as to the existence of an unlawful agreement may be drawn, it is not sufficient by itself to support an allegation of conspiracy under the Sherman Act and it may be the result of independent decisions of competitors or other economic forces. See for example Theatre Enterprises Inc. v. Paramount Film Distributing Corporation (1954) 346 U.S. 537; Esco Corporation v. United States (1965) 340 F.2d 1000; U.S. v. F.M.C. Corporation (1969) Trade Cases 187,405; Bogosian v. Gulf Oil Corporation (1975) Trade Cases 160,284 p. 66,104.

Instances where parallel pricing in respect of homogeneous products has resulted, not from parallel business conduct, but from independent decisions of competitors and intense competition are Pevely Dairy Co. v. U.S. (1949) 178 F.2d 363; U.S. v. Ward Baking Co. (1965) 243 F. Supp.713; and U.S. v. National Malleable & Steel Castings Co. (1957) Trade Cases 168,890, affirmed on appeal (1958) 358 U.S. 38."

In my view what his Honour has said gives the respondents little comfort. The opening words of the passage I have cited say that parallel conduct may constitute circumstantial evidence from which an arrangement or understanding may be inferred. It depends on the facts of each case. Email was a prosecution which, upon its facts, failed because there was no proof of an understanding or arrangement. That conclusion was reached, however, only after senior executives of the respondents had given evidence negativing any arrangement or understanding.

Accordingly, I do not regard the decision in Email as one which says that in no circumstances will evidence of parallel pricing provide evidence of an arrangement or understanding. There are cases in which it may do so. In a case where that was the only allegation one would certainly hesitate for a long time before striking out the statement of claim, particularly bearing in mind the principles which are to be applied in the determination of such an application.

This is not a case where that is the only allegation. The particulars of the third respondent's participation in the two meetings at which there were alleged to be discussions about the price of glucose may be scant. It may be difficult to imagine how admissible evidence of what the applicant alleges will be able to be led. However, if it be established that the third respondent was represented at meetings at which sellers of liquid glucose discussed the price of their product, and it be further established that they notified similar price increases and began to charge those prices, it becomes impossible, in my opinion, to say that there is not - to use the words of Dixon J. (as he was) in Dey v. Victorian Railways Commissioners - "a real question to be tried", (78 C.L.R. at p.91), or, to use the words of the Chief Justice in General Steels (112 C.L.R. at p.129), that the respondents have "clearly demonstrated" that the statement of claim and the particulars disclose no cause of action.

Accordingly, the application by the third respondent to strike out, as against it, the whole of the statement of claim will be refused. As earlier mentioned, it had the strongest case in this respect. It follows that similar applications made by the other respondents will also be refused.

I turn to consider the applications to strike out the paragraphs of the statement of claim which alleged conspiracy. They are paragraphs 13, 15, 17 and 19.

Again reliance was placed upon the scant particulars which were furnished and I have in a sense dealt with that submission already. However, all respondents relied on more fundamental submissions in order to demonstrate that the applicant's case, insofar as it was founded on conspiracy, was plainly untenable. I have already referred to the terms of paragraph 13 of the statement of claim, and it is set out in the appendix hereto. The particulars appended to it are:
"The said conspiracy was entered upon in and between June and October 1976 at the meetings and during other communications particularised under paragraph 12 above."

The particulars appended to paragraphs 15, 17 and 19 are: "The applicant refers to and repeats the particulars to paragraph 13."

Effectively then the particulars relied upon in support of the conspiracies which are alleged are those given in respect of paragraph 12 except insofar as they relate to notifications of price increases and the charging of the increased prices.

As the respondents submitted, there is difficulty in embracing the concept basic to the allegation of conspiracy made in each of the paragraphs of a conspiracy to make an arrangement or enter into an understanding. It is to be emphasised that the conspiracies charged are not conspiracies to raise or maintain the price of liquid glucose, nor are they conspiracies to exhort, incite, encourage or persuade persons to make arrangements or enter into understandings to do so. The conspiracies are said to be conspiracies to make arrangements or to enter into understanding themselves made unlawful by the Act.

It was in those circumstances that counsel for the first respondent submitted that, as a matter of construction, the Act did not make unlawful a conspiracy to make an arrangement or enter into an understanding. Such a concept was tautologous. Notwithstanding the words of s.76(1)(f) of the Act earlier referred to and its express application to s.45, I think there is force in his argument. But it was not one - and I indicated this during the course of the hearing - with which I was prepared to deal on a summary application to strike out a pleading. I said if I were against the principal submissions relied upon in support of the application to strike out the conspiracy paragraphs, I would allow the matter to be raised as a point of law, and would dispose of it before the main hearing of the proceedings commenced.

For the purpose of this application I am prepared to assume that it is permissible to charge a conspiracy to make an arrangement or enter into an understanding made unlawful by s.45 of the Act. Although I am prepared to make that assumption that is by no means the end of the matter. It becomes critical to analyse the particulars furnished in respect of the alleged conspiracies.

I should say at this point that during discussion with senior counsel for the applicant I raised with him the question of whether the allegations in paragraphs 13, 15, 17 and 19 of the statement of claim and in the particulars sufficiently put the case he wished to make. He said he wished to consider the matter, and I adjourned early on the first day of the hearing to enable him to do so overnight. The next morning he told me quite firmly that after due reflection and after the taking of instructions there was to be no application to amend either the particulars furnished in the statement of claim or any of its paragraphs, nor was any addition to either to be made.

The particulars appended to paragraph 13 refer one to those furnished in respect of paragraph 12. For that reason there was no occasion for the respondents to seek by letter further particulars of any allegations other than those made in paragraph 12. Those particulars have already been referred to and are fully set out in the appendix to this judgment. They particularise meetings and other communications which led to the making of the arrangement or the entering into of the understanding alleged in paragraph 12. They give particulars of what the terms of the arrangement or understanding were. Alternatively, they say that the arrangement or understanding was initiated at the meetings and in the communications relied upon, and was made or entered into when the corporate respondents proceeded to act in the manner discussed during the meetings and in the communications. The particulars appended to paragraph 13 make it clear, however, as I have earlier said, that that alternative way of putting the case is not relied on in respect of the allegations of conspiracy. Counsel for the applicant stressed that matter to me during the course of the argument.

Thus the particulars which are relied upon in support of the allegations of conspiracy are particulars alleging the making of an actual arrangement or the entering into of an actual understanding; there are no other relevant particulars.

It should be observed at this point that a conspiracy is, itself, an agreement. I refer to three judgments of the Court of Criminal Appeal in England. In R. v. Newland & ors. (1953) 2 All E.R. 1067 Goddard L.J. said (p.1071):
"A conspiracy consists of agreeing or acting in concert to achieve an unlawful act or to do a lawful act by unlawful means."
In R. v. Smith (1963) 3 All E.R. 597 the Court said (p.601):
"The terms agreement, confederacy, acting in concert and conspiracy all pre-suppose an agreement express or by implication to achieve a common purpose, . . . "
in R. v. O'Brien (1974) 59 C.A.R. 222 the Chief Justice said (p.225):
"The essence of a conspiracy is an agreement."

What, then, is the gravamen of the allegation made in the conspiracy paragraphs bearing in mind the particulars that have been furnished. It is that the corporate respondents conspired, that is agreed, to make an arrangement or enter into an understanding whereby, to take paragraph 13 of the statement of claim as an example, the prices at which such respondents would sell liquid glucose would be increased as from October 1976 or thereabouts. The conspiracy, that is the agreement, is said in the particulars appended to paragraph 13 to have been entered upon at the meetings and during the other communications particularised under paragraph 12. The meetings and communications there referred to are alleged to be the meetings and communications in which the arrangement or understanding charged in paragraph 12 was made. Paragraph 12 and its particulars cannot be read otherwise. In those circumstances although a conspiracy to make an agreement or enter into an understanding is alleged there cannot, by reason of the particulars, be in fact more than the arrangement or understanding particularised in paragraph 12. That must be the conspiracy which is charged.

Thus the conspiracies relied upon are also the arrangements or understandings alleged in the other paragraphs in the statement of claim. Whatever the operation of s.76(1)(f) of the Act may be in relation to s.45, I am satisfied that it is not appropriate to charge, as an alternative to charging arrangements or understandings made unlawful by s.45, conspiracies which are themselves such arrangements or understandings. The paragraph in terms do not purport to do this. They charge conspiracies to make unlawful arrangements or to enter into unlawful understandings, but the paragraphs must be read subject to the particulars which have been provided. When that is done it becomes clear that the conspiracies on the one hand and the arrangements and understandings on the other are identical. That is plainly and demonstrably a situation which the Act does not permit or provide for. Accordingly, the paragraphs charging conspiracy will be struck out.

Another way of looking at the matter is to adopt the approach of Denning L.J. (as he then was) in Ward v. Lewis & ors. (1955) 1 W.L.R. 9. One of the questions in that case was whether, in an action for defamation against two or more defendants, it was permissible to add a count of conspiracy to defame the plaintiff. His Lordship said (p.11):
"It is important to remember (and we had a case only last week on this point) that when a tort has been committed by two or more persons an allegation of a prior conspiracy to commit the tort adds nothing. The prior agreement merges in the tort. A party is not allowed to gain an added advantage by charging conspiracy when the agreement has become merged in the tort. It is sometimes sought, by charging conspiracy, to get an added advantage, for instance in proceedings for discovery, or by getting in evidence which would not be admissible in a straight action in tort, or to overcome substantive rules of law, such as here, the rules about republication of slanders. When the court sees attempts of that kind being made, it will discourage them by striking out the allegation of conspiracy, on the simple ground that the conspiracy adds nothing when the tort has in fact been committed."
I refer also to Rubenstein v. Truth and Sportsman Limited (1960) V.R. 473 at p.477.

Counsel for the plaintiff sought to say that the paragraphs charging conspiracy were capable of supporting a case of two or more of the corporate respondents having conspired (agreed) to make an arrangement or enter into an understanding to maintain or raise the price of glucose at some time in the future. But that is not what is particularised. The particulars which, as I have mentioned, counsel declined to amend, are not, in my opinion, capable of supporting such a case.

Furthermore, so far as concerns the paragraphs supporting a case in which two or more of the corporate respondents are alleged to have conspired, it should be recalled that the statement of claim in its original form alleged conspiracies by the corporate respondents, "or two or more of them". That allegation is not made in the amended statement of claim now under consideration.

For the reasons I have given, the applications made by the respondents that the whole of the amended statement of claim be struck out are refused, but their applications that paragraphs 13, 15, 17 and 19 thereof be struck out are upheld. Those paragraphs are struck out accordingly. That makes it unnecessary for the point of law relied upon by counsel for the first respondent to be dealt with.

The balance of the notices of motion seek further particulars which I understand the applicant is prepared to give. There is also the question of the costs of the notices of motion. What is it desired that I do?
(For discussion which ensued see transcript p.412)

Stood over to 29 September, 1980, at 2.30 p.m.

ABRIDGED STATEMENT OF CLAIM

IN GEORGE WESTON FOODS LIMITED & ORS.

ats

TRADE PRACTICES COMMISSION

No. 29 of 1979

2. The applicant is the Trade Practices Commission established by the Act.

5. The third-named respondent -
(a) Is and was at all material times a trading corporation within the meaning of the Act duly incorporated pursuant to the laws of the Australian Capital Territory;

(b) At all material times carried on business, inter alia, as a supplier of liquid glucose to the purchasers in Australia.

1. On or about 6 September 1976 alternately in and between June and October 1976 the corporate respondents and each of them made an arrangement or entered into an understanding whereby the prices at which they and each of them would sell liquid glucose would be increased as from October 1976 or thereabouts.
   
   PARTICULARS
   
   

(A) The said arrangement was made or the said understanding was entered into at or as a result of meetings and other communications between representatives of corporate respondents in and between June and October 1976. The meetings included a meeting on or about 16 August 1976 at which representatives of the first, fourth and fifth named respondents were present, (the representative of the first named respondent being the sixth named respondent), and a meeting on or about 6 September 1976 at the premises of the Flour Millers Council of New South Wales at which representatives of the corporate respondents were present, (the representative of the first named respondent being the sixth named respondent). The said arrangement or the said understanding was to the effect that the corporate respondents would increase their prices for liquid glucose to about $275 per tonne for glucose delivered in bulk by tankers; that there would be a surcharge for deliveries in drums; that there would be a surcharge for supplies to customers of another corporate respondent; and that the increase would take effect as from October 1976 or thereabouts.

(B) Further and alternatively the said arrangement or the said understanding was initiated at the meetings referred to above and during the other communications in and between June and October 1976 particularised below and was made or entered into when the corporate respondent proceeded to act in the manner discussed during such meetings and communications and were able to observe that each of the other corporate respondents was also acting in like manner. Each of the corporate respondents notified their customers in about September 1976 that their prices for liquid glucose would be increased as from October 1976 or thereabouts, and in October 1976 or thereabouts the corporate respondents in fact increased their prices in the manner particularised above. Communications

(a) Communication between the sixthnamed respondent on behalf of the firstnamed respondent and Mr Stuart Cleland, the general manager of the fifthnamed respondent on its behalf on about 29 June 1976.

(b) Communications between a representative of the fouthnamed respondent (Mr Honan) and Mr Cleland in about June/July 1976.

(c) Communication between a representative of the firstnamed respondent (Mr Matthews) and Mr Cleland on about 5 July 1976.

(d) Communications between representatives of the corporate respondents on about 23 August 1976.

13. Further and alternatively corporate respondents in and between June and October 1976 conspired together to make an arrangement or enter into an understanding whereby the prices at which the corporate respondents would sell liquid glucose would be increased as from October 1976 or thereabouts.
PARTICULARS

The said conspiracy was entered upon in and between June and October 1976 at the meetings and during the other communications particularised under paragraph 12 above.

14. Further and alternatively, on or about 6 September 1976 alternatively in and between June and October 1976 the corporate respondents and each of them made an arrangement or entered into an understanding whereby as from October 1976 or thereabouts none of them would underbid for the supply of liquid glucose to the existing customers of any of the other corporate respondents.
PARTICULARS

The applicant refers to and repeats Particulars to paragraph 12 and will also rely upon the inferences to be drawn from the subsequent conduct of the corporate respondents referred to in paragraphs 29 and 30 hereof.

15. Further and alternatively, the corporate respondents in and between June and October 1976 conspired together to make an arrangement or enter into an understanding whereby as from October 1976 or thereabouts none of them would underbid for the supply of liquid glucose to the existing customers of any of the other corporate respondents.
PARTICULARS

The applicant refers to and repeats the Particulars to paragraph 13.

16. Further and alternatively on or about 6 September 1976 alternatively in and between June and October 1976 the corporate respondents and each of them made an arrangement or entered into an understanding whereby as from October 1976 or thereabouts each of them would preserve to the others their existing customers by charging a surcharge which applies to existing customers of other corporate respondents.

PARTICULARS

The applicant refers to and repeats the Particulars to paragraph 14.

17. Further and alternatively the corporate respondents in and between June and October 1976 conspired together to make an arrangement or enter into an understanding whereby as from October 1976 or thereabouts each of them would preserve to the others their existing customers by charging a surcharge for supplies to existing customers of other corporate respondents.

PARTICULARS

The applicant refers to and repeats the Particulars to paragraph 13.

18. Further and alternatively on or about 6 September 1976 alternatively in and between June and October 1976 the corporate respondents and each of them made an arrangement or entered into an understanding whereby as from October 1976 or thereabouts none of them would seek to supply liquid glucose to existing customers of the others at prices below those offered by the existing supplier or suppliers.

PARTICULARS

The applicants refers to and repeats the Particulars to paragraph 14.

19. Further and alternatively the corporate respondents in and between June and October 1976 conspired together to make an arrangement or enter into an understanding whereby as from October 1976 or thereabouts none of them would seek to supply liquid glucose to the existing customers of the others at prices below those offered by the existing supplier or suppliers.
PARTICULARS

The applicant refers to and repeats the Particulars to paragraph 13.

*21 The sixth and seventhnamed respondents and each of them -

(a) counselled or procured;

(b) induced,

each of the second to fifthnamed respondents to contravene section 45(2)(a) of the Act as it existed prior to 1 July 1977 by making the arrangement or entering into the understanding referred to in paragraph 12 hereof.

PARTICULARS

The applicant refers to and repeats the Particulars to paragraph 12.

*23. The sixth and seventhnamed respondents and each of them - (a) counselled or procured; and (b) induced, each of the second to fifth named respondents to contravene Section 45(2)(a) of the Act as it existed prior to 1 July 1977 by making the arrangement or entering into the understanding referred to in paragraph 14 hereof.

PARTICULARS

The applicant refers to and repeats the Particulars to paragraph 14.

*25. The sixth and seventh named respondents and each of them -

(a) counselled or procured; and

(b) induced,

each of the second to fifth named respondents to contravene Section 45(2)(a) of the Act as it existed prior to 1 July 1977 by making the arrangement or entering into the understanding referred to in paragraph 16 hereof.

PARTICULARS

The applicant refers to and repeats the Particulars to paragraph 14.

28. The arrangements and understandings referred to in paragraphs 12, 14, 16 and 18 hereof were, and each of them was, in restraint or commerce within the meaning of Section 45 of the Act as it existed prior to 1 July 1977.

29. As from October 1976 or thereabouts until 30 June 1977 or thereabouts the corporate respondents and each of them gave effect to the arrangements or understandings referred to in paragraphs 12, 14, 16 and 18 hereof.

PARTICULARS

The corporate respondents and each of them abided by the said arrangements and understandings and complied with and implemented the same.

30. On and after 1 July 1977 the corporate respondents and each of them gave effect to the arrangements and understandings referred to in paragraphs 12, 14, 16 and 18.
PARTICULARS

The corporate respondents and each of them abided by the said arrangements and understandings and complied with and implemented the same.

31. The making of the arrangement and the entry into of the understandings referred to in paragraphs 12, 14, 16 and 18 hereof constituted a contravention of Section 45(2)(a) of the Act as it existed prior to 1 July 1977 in that the said arrangements and understandings were, and each of them was, in restraint of trade or commerce.

32. The giving effect to of the arrangements and understandings referred to in paragraphs 12, 14, 16 and 18 hereof prior to 1 July 1977 constituted a contravention of Section 45(2)(b) of the Act as it existed prior to 1 July 1977.

33. The acts or conduct described in paragraphs 13, 15, 17 and 19 hereof constituted conspiracies to contravene Section 45(2)(a) of the Act as it existed prior to 1 July 1977 and as such were acts or conducts referred to in paragraph 76(f) of the Act as it existed prior to that date.

*35 The actual conduct described in paragraphs 21, 23, 25 and 27 hereof constituted acts or conduct referred to in:

(a) paragraph 76(c); and

(b) paragraph 76(d),

respectively of the Act as it existed prior to 1 July 1977.

36. The arrangements and understandings referred to in paragraphs 12, 14, 16 and 18 hereof and each of them were made or arrived at between persons who were and are competitive with each other and the provisions of the arrangements and understandings referred to therein had and have the purpose of preventing, restricting or limiting:

(a) the supply of liquid glucose to particular persons,

(b) the supply of liquid glucose to particular persons in particular circumstances, and

(c) the supply of liquid glucose to particular persons on particular conditions,

by the corporate respondents.

37. In giving effect to the said provisions referred to in paragraph 36 hereof on and after 1 July 1977 the corporate respondent contravened Section 45(2)(b)(i) of the Act as it existed after that date.

38. The provisions referred to in paragraph 36 hereof have the purpose or have or are likely to have the effect of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of the price for liquid glucose supplied or to be supplied by the corporate respondents who at all material times are or were in competition with each other.

39. In giving effect to the said provisions referred to in paragraph 36 hereof on and after 1 July 1977 the corporate respondents contravened Section 45(2)(b)(ii) of the Act as it existed after that date.

*42. The eighth respondent was knowingly concerned in or party to the contraventions by the second respondent of section 45(2)(b) of the Act as it existed prior to 1 July 1977 by giving effect to the arrangements and understandings referred to in paragraph 29 hereof.
PARTICULARS

The eighth respondent communicated with representatives of the first third fourth and fifthnamed respondents in relation to the prices at which liquid glucose was supplied, or was to be supplied to particular customers.

*43. The eighth respondent: (a) counselled or procured; (b) induced, each of the first, third, fourth and fifthnamed respondents to contravene section 45(2)(b) of the Act as it existed prior to 1 July 1977 by giving effect to the arrangements and understandings referred to in paragraph 29 hereof.
PARTICULARS

The applicant refers to and repeats the Particulars to paragraph 42.

*44. The eighth respondent was knowingly concerned in or party to the contravention by the second respondent of section 45(2)(b) of the Act as it existed after 1 July 1977 by giving effect to the arrangements and understandings referred to in paragraph 30 hereof.

PARTICULARS

After 1 July 1977 the eighth respondent communicated with representatives of the first, third, fourth and fifthnamed respondents in relation to the prices at which liquid glucose was supplied, or was to be supplied, to particular customers.

*45. The eighth respondent -

(a) counselled or procured; and

(b) induced, each of the first, third, fourth and fifthnamed respondents to contravene section 45(2)(b) of the Act as it existed after 1 July 1977 by giving effect to the arrangements and understandings referred to in paragraph 30 hereof.

PARTICULARS

The applicant refers to and repeats the Particulars to paragraph 44.

46. The acts or conduct described in paragraph 42 hereof constituted acts or conduct referred to in paragraph 76(e) of the Act as it existed prior to 1 July 1977.

47. The acts or conduct described in paragraph 43 hereof constituted acts or conduct referred to in -

(a) paragraph 76(c); and

(b) paragraph 76(d),

respectively of the Act as it existed prior to 1 July 1977.

48. The acts or conduct described in paragraph 44 hereof constituted acts or conduct referred to in paragraph 76(1)(e) of the Act as it existed after 1 July 1977.

49. The acts or conduct described in paragraph 45 hereof constituted acts or conduct referred to in - (a) paragraph 76(1)(c); and (b) paragraph 76(1)(d), respectively of the Act as it existed after 1 July 1977.

AND THE APPLICANT CLAIMS:

A. AGAINST EACH RESPONDENT

(a) A pecuniary penalty in respect of each of the aforesaid contraventions of the Trade Practices Act as in force at the material time alleged herein.

(b) Costs.

(c) Further or other orders as to the court seems fit.

B. AGAINST EACH OF THE FIRST, SECOND, THIRD, FOURTH AND FIFTH NAMED RESPONDENTS

(a) An injunction restraining each such respondent and giving effect to -

(i) the respective provisions (and each of them) of the arrangements or understandings referred to in this Statement of Claim and pursuant to which the conduct complained of in this Statement of Claim was engaged in and to which the said conduct gave effect;

(ii) any similar provisions of arrangements or understandings

(b) An injunction restraining each such respondent from making any contract or arrangement or arriving at any understanding, in respect of the supply of glucose in Australia contrary to the provisions of Section 45 of the Trade Practices Act of 1974.

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* Although the allegations in the paragraphs indicated thus do not relate to any issue between the third respondent and the applicant, facts are alleged therein which either:

(a) may be regarded as involving our client; or

(b) may be facts we wish to dispute during the course of the matter.