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Federal Court of Australia

Australian Wool Innovation Ltd v Newkirk (No 2)
Commonwealth of Australia
[2005] FCA 1307

Case Details
Printable Version
Summary:   The respondents, including PETA, engaged in a campaign to boycott the Australian wool industry on the bases of the cruelty incurred by the practice of mulesing and because of its link to the live export industry. The applicants, including Australian Wool Innovation who represented the Australian wool industry, sought to bring an action against the respondents for hindering trade under the Trade Practices Act (Cth) s 45DB and conspiring to injure the applicants by unlawful means. The respondents were successful in having these claims struck out.

Judge Hely J delivered the opinion of the court.


Opinion of the Court:
1 On 22 March 2005 I ordered that the Amended Statement of Claim which was filed in this matter on 9 November 2004 be struck out, with liberty to the applicants to replead: Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 (‘AWI No 1’). That order was made on the application of the first respondent (‘Ms Newkirk’), she being the only respondent who had then been served with the originating process.
2 On 3 June 2005 the applicants filed a Further Amended Statement of Claim (‘the FASC’) , and a Further Amended Application was filed on 23 June 2005. By motion filed on 28 June 2005 Ms Newkirk applied for an order that the FASC be struck out. By letter dated 11 August 2005 (‘the particulars letter’) the applicants’ solicitors volunteered further particulars of the FASC. On 29 July 2005 the sixth and seventh respondents, who by then had been served with the originating process, applied for orders that the FASC be struck out. Those respondents appeared by counsel on the hearing of the motions, but merely adopted the submissions made by counsel for Ms Newkirk.
3 After the conclusion of argument on the strike out application, the applicants forwarded to me a further document styled ‘Second Further Amended Statement of Claim’ which was designed to correct minor errors of a typographical nature which had crept into the FASC. This document has not yet been filed, and I will continue to refer to the FASC, rather than to the corrected document.
4 On 15 July 2005 the applicants applied pursuant to Order 8, sub-rule 2(2) of the Federal Court Rules for leave to serve the Further Amended Application, and the FASC on the second, third, fourth, and ninth respondents in the United States of America. Application was also made for leave to serve the fifth respondent outside the jurisdiction. The application for leave to serve outside the jurisdiction was made ex parte and on 29 July 2005 I reserved my decision on that application. The strike out applications and the application for leave to serve outside the jurisdiction have proceeded concurrently. Although evidence was filed by the applicants in support of the application for leave to serve outside the jurisdiction which the applicants also tendered on the strike out application, counsel for Ms Newkirk objected to that evidence being received on the strike out application and I rejected it.
5 The causes of action now pleaded against Ms Newkirk fall into the following six categories:
(a) contravention of s 52 of the Trade Practices Act 1974 (Cth) (‘the TPA’) and its State Equivalents;
(b) being knowingly concerned in contraventions of the TPA and its State Equivalents;
(c) contravention of s 45D of the TPA;
(d) contravention of s 45DB of the TPA;
(e) intimidation of various retailers of Australian Wool Garments, by threatening those retailers with unlawful acts with the intention of causing harm to the applicants; and
(f) conspiracy with other identified persons to commit unlawful acts with the intention of harming the trade of the applicants.
(a) Contravention of s 52 of the TPA
6 The FASC pleads that in November 2004 Ms Newkirk gave an interview on the Channel Nine ‘60 Minutes’ program, in which she made the Mulesing Cruelty Representation (par 50(a)(ii): ‘a substantial purpose of mulesing is to inflict pain on the sheep’) and the Viable Alternatives Representation (par 50(a)(v): ‘there are currently available to all Australian Woolgrowers in all merino sheep breeding districts of Australia viable alternatives to mulesing and Australian Woolgrowers could immediately cease mulesing’). The making of those representations is said to be false and misleading (pars 57 and 58) because mulesing is an effective and necessary measure to prevent blowfly strike (par 11) and is not a measure which is intended to inflict pain or cruel and pointless mutilation on the sheep (par 12); there is currently no viable alternative measure to mulesing available to Australian Woolgrowers in most of the merino sheep breeding districts of Australia to prevent blowfly strike in their merino sheep (par 13).
7 Two issues arise, namely:
(a) whether the Mulesing Cruelty Representation and the Viable Alternatives Representation are statements of opinion rather than of fact; and
(b) whether the conduct in question is ‘in’ trade or commerce.
8 As Hill J observed in Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 at 46 whether a particular formulation of words merely expresses an opinion, or is a statement of fact, is itself essentially a question of fact, and the context in which the words are spoken may be highly relevant to the resolution of that question. The existence or otherwise of objective criteria against which to measure the representations in question may also be an important factor.
9 The representations in question are on their face capable of being regarded as representations of fact which will be misleading or deceptive if the facts are otherwise than as represented. Whether in the overall context the representations should be regarded as being no more than an expression of an opinion which will not be misleading if the opinion is genuinely held and reasonably based is not a matter which is suitable for determination on a strike out application. It cannot be said that the applicants’ claim as pleaded is so obviously untenable in this respect that it should be struck out: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91.
‘In’ trade or commerce
10 The relevant conduct is the making by Ms Newkirk, on her own behalf and on behalf of the fourth respondent (‘PETA’) (FASC par 132(b)) of the Mulesing Cruelty Representation and the Viable Alternatives Representation on a television program devoted to current affairs. The FASC does not specify, or collect in a single place, the facts which are relied upon in support of the contention that this conduct is ‘in’ trade or commerce. However, the FASC alleges that PETA carries on business in Australia, and that its business includes the following (FASC par 31);
(a) undertaking campaigns about business activities or goods which involve the use of or which affect animals;
(b) raising funds by way of contributions and donations from members of the public for PETA campaigns, inter alia, by generating publicity for its campaigns and promoting any success achieved by such campaigns;
(c) promoting the sale of, offering for sale and selling clothing and merchandise;
(d) operating websites for the purposes of its business; and
(e) investing in companies including companies which are engaged in the business of selling Australian Wool Garments such as the Retailers known as Nordstrom, Liz Claiborne, Ann Taylor, American Eagle, Talbot’s, Jones Apparel, Limited Brands and H & M.
11 In addition, the particulars letter contains the following further information in relation to PETA’s business, and the 60 Minutes program:
‘5. In relation to PETA campaigns generally, on the 60 Minutes program broadcast on 21 November 2004 in Australia, Newkirk said:
We stopped NASA from sending monkeys into space. We stopped General Motors from crash testing on animals. We stopped about 550 cosmetics companies from testing in rabbits’ eyes. They all said we wouldn’t succeed. But we’re tenacious and we’ll give it a go.
...
8. In relation to the PETA Australian Wool Campaign, on 11 August 2004 Newkirk forwarded by facsimile transmission to Prime Minister Howard in Australia a letter on PETA letter head containing the following statements:
We have written to you several times over the last two years concerning the extreme suffering of Australian Merino sheep as result [sic] of mulesing and live export, and we have yet to receive an even remotely reasonable response. Our members now demand that we move forward on this issue – that we take steps similar to those used in our successful efforts against other industries in which cruelty to animals has run rampant, such as in the Indian leather trade, which, according to CNN, experienced an estimated $68 million in lost sales as a result of our campaign.
We are about to launch a worldwide campaign against the Australian Merino Wool industry, which will continue until your government takes action to end mulesing and live exports. To that end, we will announce an international boycott of Australian wool in October.
...
And or course, we will abandon the campaign if you are willing to pledge to end mulesing and live exports.
In case you have any doubts about the cruelty of these practices, we enclose additional copies of the video and a report containing references to published scientific studies on the pain and suffering caused by mulesing and live exports.
...
14. An integral part of any PETA campaign is a media campaign including the organisation of and participation in media interviews. In a PETA guide it is said:
PETA uses public education, litigation, research & investigation, media campaigns and grassroots organising to accomplish its goal of protecting all animals from exploitation and abuse.
15. PETA reports on the extent to which its campaigns receive media coverage. One of the primary responsibilities and duties of a PETA campaigner is to: Work with members of the media to promote campaigns and learn to conduct media interviews and to: Send out news releases, make follow-up and pitch calls to the media, and work to keep PETA’s campaigns in the media spotlight.
22. In the course of the October Australian media interviews, the Mulesing Cruelty and Viable Alternatives Representations were made, and specific reference was made to the PETA website which contained the equivalent representations, namely savethesheep.com.
23. The savethesheep.com website contains a direct link to the "Alternatives to Wool" page and the "Free Shopping Guide" page. Each of those pages links to various merchandise which can be purchased from PETA, PETA’s winter goods range, or from an entity which pays PETA a percentage of sales achieved via the links. Furthermore, each of the pages contains links to pages which promote donations to PETA, particularly in the context of PETA promoting its "victories.
...
24. Hence, promotion of the PETA websites constituted promotion of the representations contained thereon, of the merchandising sales available therefrom, of the donation pages thereon, and generally promotion of the business activities of PETA.
32. Newkirk participated in the 60 Minutes interview as part of the business activities of PETA, including for the purpose of promoting the purposes of the PETA Australian Wool Campaign. That constituted conduct by Newkirk in Australia. During the course of the 60 Minutes interview, Newkirk made the following statements in relation to the PETA Australian Wool Campaign and her knowledge, approval and involvement in every aspect of that campaign:
There’s no budging them unless they feel the pressure. You know bleeding hearts don’t affect them. Bleating lambs don’t affect them, but contracting wallets will affect them.
...
Their fate is in their hands. They can decide today. They can decide in three months. They can decide next year or they can decide in four years. But we’ll have an impact. It’s up to them how much impact, how long this war goes on.
...
We’re very close to bringing at least two more [companies who use Australian wool] on board as we have with Abercrombie and Fitch.
...
We say we’d like to present you with the facts. And if they ignore us, we write again and say we urge you to consider what’s happening here. And if they continue and continue to ignore us, then we have more people write to them and sometimes a celebrity will call them. And then we tell them, if you are going to ignore this, we have the right to be outside your stores. And then usually, they come along.
33. In addition, during the course of the interview, Newkirk made representations to the effect of those which were then appearing on the PETA websites, namely the Mulesing Cruelty Representation and the Viable Alternatives Representation, publicised the fact that retailers had responded to threats of campaigning against them, and conveyed to other retailers generally the means which would be employed to force them to stop selling Australian wool garments. In so conducting herself, Newkirk was participating in the PETA Australian Wool Campaign as part of the business activities of PETA and reinforcing the representations which were being made at that time on PETA websites and in protests against retailers around the world.’
12 Ms Newkirk contends that the making of the representations in question does not have a trading or commercial character, as the representations are statements made to the public at large relating to the treatment of animals which are in the nature of a comment on social or ethical issues. The applicants’ response is that PETA’s business activities include participation in media interviews, such as the 60 Minutes program, as a means of promoting campaigns being conducted by PETA, and as a means of financing such campaigns by attracting donations, and by promoting the sale of wool substitute products by PETA and vendors whom it sponsors.
13 In Plimer v Roberts (1997) 80 FCR 303 at 323 Lindgren J, as a member of the Full Court, noted that the expression ‘in trade or commerce’ had proved difficult, but that in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 (‘Concrete Constructions’) the High Court favoured a narrow construction of that section namely: ‘in (as part of) a particular trading or commercial dealing, transaction or activity’. A wider interpretation which would include ‘the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business’ (Concrete Constructions at 602-603) was rejected.
14 In Fasold v Roberts (1997) 70 FCR 489 at first instance Sackville J enunciated (at 531) a number of propositions extracted from the cases decided up to that point which shed light on the test formulated by the High Court in Concrete Constructions. Those propositions are:
(i) A person undertaking public presentations, such as exhibiting films or publishing advertisements, engages in conduct in trade or commerce if the presentations are designed to advance or protect the commercial interests of the exhibitor or the publisher, or of trading entities represented by the exhibitor or publisher: Glorie; Tobacco Institute v AFCO.
(ii) Altruistic motives will not necessarily prevent the public presentation being in trade or commerce, depending on the other circumstances of the case: Glorie.
(iii) A person may make public statements designed to influence trading patterns, yet not make those statements in trade or commerce. Even statements designed to persuade people to buy a particular commodity, if made by a Government representative, are not necessarily made in trade or commerce: Kerin.
(iv) Public statements by a person not engaged in trade or commerce himself or herself, may be made in trade or commerce if designed to encourage others to invest, or continue investments, in a particular trading corporation: Meadow Gem.’
Proposition (i) is substantially built upon the decision of Morling J in Glorie v WA Chip & Pulp Co Pty Ltd (1981) 55 FLR 310 (‘Glorie’). In Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449 Gyles J thought that the better view is that Glorie is not consistent with Concrete Constructions, a view shared by Finn J in Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133; (2004) 208 ALR 98.
15 The decision of Finn J referred to above was the subject of an appeal: Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 210 ALR 114 (French, Sackville and Conti JJ). In that case the Full Court pointed out that Concrete Constructions decides that representations must be made in the course of a trading or commercial relationship or of activities that bear a trading or commercial character before they can be found to have been made ‘in’ trade or commerce. Their Honours said (at [52]):
‘It is plainly essential to maintaining the operations of a construction company that a foreman give instructions to a worker to carry out building activities. But, as Concrete Constructions decides, the fact that the foreman’s instructions are in the interests of a corporation, or even essential to its operations, does not necessarily mean that the transaction or dealing is in trade or commerce. The conduct must have occurred in the course of a trading or commercial relationship or otherwise to bear a trading or commercial character.’
16 It appears from [53] of their Honours’ decision that the position may have been otherwise if the representations in question could be described as promotional activities designed to persuade consumers to use the services offered at Canberra Airport. However, their Honours said (at [55]):
‘Conduct by a corporation which does not otherwise bear a trading or commercial character is not brought within s 52 simply because it may be thought in some way to benefit the corporation’s business or because it can be labelled as "promotional".’
And at [59]:
‘The fact that conduct has the purpose or effect (or both) of maintaining or protecting a business is not, of itself, enough to ensure that the conduct is in trade or commerce.’
17 Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc [2002] FCA 860; (2002) 120 FCR 191 (‘Orion Pet Products’) is a decision of Weinberg J which illustrates the difficulties with which the present applicants may be confronted. The applicants in that case were manufacturers of electronic dog collars designed to train dogs not to bark. Adverse comments about the dog collars had been made by officers of the first respondent (‘the RSPCA’) both orally on radio, on the RSPCA website and to a journalist who published them in a newspaper. One way in which the TPA case was put was that an effect of disparaging electronic dog collars was to promote the sale of alternative collars marketed by the RSPCA.
18 Although some of the statements in question were found to be misleading and deceptive and even though the RSPCA was found to be a trading corporation, the TPA claims failed as the statements were not made ‘in trade or commerce’. Weinberg J found that although the RSPCA was a trading corporation, many of its functions have a non-trading or commercial character. The statements made by the RSPCA officers were part of an educational and political agenda which were only tenuously connected, if at all, with the RSPCA’s trading activities.
19 The applicant failed in the RSPCA case because Weinberg J held, after a consideration of all of the evidence, that there was, at most, a tenuous connection between the conduct complained of and the RSPCA’s trading activities. The case was decided on its own facts. I am not able to assess, at this stage of the proceedings, whether the distinction which his Honour drew between the RSPCA’s trading activities, on the one hand, and its educational or political activities on the other, has any parallel in relation to PETA.
20 Even if it be assumed (as it must for the purposes of the present application) that PETA’s business included the conduct of the Australian Wool Campaign and the raising of monies to fund that campaign, it does not necessarily follow that the making of the relevant representations was conduct in trade or commerce. The representations were not made in the course of a trading or commercial relationship. The applicants’ case, however, is that the representations in question were designed to induce consumers not to buy goods made of Australian Wool, to support the activities of PETA by donations, and to acquire non-wool products manufactured by or under the auspices of PETA. Concrete Constructions recognises that promotional activities in relation to the possible supply of goods or services to consumers can be in trade or commerce. Activities may be of that character even if they do not specifically refer to the goods or services in question. For example, promotion of BHP as ‘the big Australian’ might be conduct engaged in trade or commerce.
21 The applicants’ submissions recognised that there is at least a substantial question as to whether the representations in question were made in trade or commerce. The existence of a substantial question provides a reason for a trial, rather than for summary dismissal of the claim. The decision in Orion Pet Products provides foundation for a speculation that the applicants’ claim may ultimately fail, but having regard to the way in which the applicants put their case, I do not think that it can be said that the proposition that the representations were made in trade or commerce is so hopeless that it should be struck out without embarking upon the factual enquiry.
(b) Being knowingly concerned in contraventions of the TPA
22 Paragraph 214 of the FASC pleads that Ms Newkirk was knowingly concerned in contraventions of s 52 of the TPA. The conduct for which Ms Newkirk is said to be accessorily liable consists of:
(a) the offering of merchandise for sale on PETA’s websites got up with criticisms of Benetton and the making by PETA of misleading and deceptive representations on its websites (2nd Benetton Conduct; PETA Website Conduct);
(b) the making by PETA of misleading and deceptive representations to David Jones (4th Benetton Conduct);
(c) the making by PETA of misleading and deceptive representations in Australian news releases (1st, 2nd and 3rd Australian Newsletter Conduct);
(d) the making by PETA and the ninth respondent (‘Mr Rice’) of misleading and deceptive representations to various Australian media organisations (Rice Interview Conduct);
(e) the making by PETA and the fifth respondent (‘Ms Ruckley’) of misleading and deceptive representations to Australian media organisations (the Ruckley Interview Conduct);
(f) the making by PETA of misleading and deceptive representations on the 60 Minutes program (Newkirk Interview Conduct); and
(g) the making by PETA of misleading and deceptive representations at protests staged by PETA in Pitt Street Mall (Australian Protest Conduct).
23 Ms Newkirk contends that the FASC should be struck out insofar as this claim is concerned because:
(a) the applicants have failed to plead any material facts that would support the allegation that Ms Newkirk was knowingly concerned in the conduct in question;
(b) there is no allegation (apart from that involving the 60 Minutes interview) that Ms Newkirk’s conduct said to form the basis of the claim against her under s 75B of the TPA (and its State Equivalent) is conduct that took place in Australia; and
(c) the representations in question were not made in trade or commerce.
24 The FASC alleges that:
(a) Ms Newkirk is the President of PETA, directs the activities of PETA and is involved in the organisation and supervision of its campaigns;
(b) Mr Rice is a Grassroots Campaign Department co-ordinator with PETA and is involved in the organisation and operation of its campaigns;
(c) Ms Ruckley is a servant or agent of PETA in Australia and is involved in the organisation and operation of PETA campaigns;
(d) the conduct in question forms part of an Australian Wool Campaign conducted by PETA for the purpose of inhibiting consumers from buying Australian Wool Garments from retailers; and
(e) Ms Newkirk, the second respondent (‘Mr Akin’), the third respondent (‘Mr Matthews’) and Mr Rice agreed between themselves and with PETA in the decision to commence the PETA Australian Wool Campaign and participated in its implementation for the common purpose of causing damage to Australian Woolgrowers.
25 In my view, the FASC sufficiently makes a case that Ms Newkirk caused PETA to embark upon a campaign designed to damage Australian Woolgrowers, and enlisted the assistance of Mr Rice and Ms Ruckley (amongst others) in the conduct of that campaign, and that the conduct in question is part of or in furtherance of that campaign. If those facts are established by evidence then Ms Newkirk’s knowing participation in the conduct in question is made out.
26 In the light of that conclusion, it is not necessary for me to recite all of the paragraphs in the particulars letter which relate to the involvement of Ms Newkirk in the PETA Australian Wool Campaign. It is sufficient for present purposes to note that the particulars letter asserts that this campaign, like other PETA campaigns, involves a high degree of co-ordinated activity managed by Ms Newkirk, and that on Ms Newkirk’s website, reference is made to her leadership and spearheading of PETA campaigns, of PETA campaigns being ‘Newkirk directed’ and to her being ‘an inspirational leader. A heroine’.
27 The first ground on which Ms Newkirk contends that the accessorial liability claim should be struck out therefore fails.
28 With the possible exception of the conduct referred to in 22(a) above PETA’s conduct for which Ms Newkirk is said to be accessorially liable is alleged to have occurred in Australia, where PETA is alleged to carry on business.
29 The letter of particulars contains the following material relevant to the question of whether Ms Newkirk’s conduct said to form the basis of the claim against her under s 75B of the TPA is conduct that took place in Australia:
‘2. The PETA Australian Wool Campaign, as with other PETA campaigns, involves a high degree of co-ordinated activity managed by Newkirk, Matthews, Rice and Akin acting in concert. As President of PETA, Newkirk has a high degree of involvement in the campaign.
...
16. The launch of the Australian Wool Boycott in 14 October 2004 coincided with a series of media interviews in Australia in October and November, which it may be inferred were encouraged by PETA. October media interviews were conducted in Australia including on 15 October 2004 (PETA’s Matt Rice speaking from the US on radio 3AW and ABC Canberra; PETA’s Jason Baker in Australia on ABC TV), on 18 October 2004 (Matt Rice speaking from the US on Channel 9’s Today Show) and on 20 October 2004 (PETA’s Jodi Ruckley in Australia on radio 3CR). The conduct of Rice in participating in those interviews was conduct by him in Australia.
...
21. The launch of the media campaign in Australia in October 2004 was a significant step in the PETA Australian Wool Campaign. The media campaign was associated with the launch of the Australian Wool Boycott which was being launched on the PETA website at about that time. The media launch in Australia involved two persons in Australia, Ruckley and Baker. It was essential that the Australian media campaign be co-ordinated with and consistent with the world-wide media campaign and PETA website statements. It may be inferred that each of Newkirk, Matthews, Rice and Akin was involved in the decision to organise and determine the message to be conveyed in media interviews in Australia. It may be inferred that there were telephone discussions and email correspondence between Australia and the US in which each of Newkirk, Matthews, Rice, Akin, Baker and Ruckley participated, and in which decisions were made to embark on the Australian media campaign and as to its substance. Such discussions and email correspondence constituted conduct in Australia by each of Newkirk, Matthews, Rice and Akin.
...
27. By 5 November 2004, each of Akin and Newkirk were in Australia. Newkirk was served with the initiating process in these proceedings on the occasion of her 60 Minutes interview in Australia, which was recorded on 9 November 2004 although the program was broadcast on 21 November 2004. Shortly prior to 17 November 2004, Akin spent some considerable time in Australia during which he travelled to various parts of Australia and met with a number of persons involved in the Australian wool industry discussing issues related to PETA’s Australian Wool Campaign, as he reported in various letters sent by him on 17 November 2004. It may be inferred that Newkirk accompanied him.
28. On 9 November 2004, Jason Baker, PETA’s Asia-Pacific Director, made a statement in Sydney calling for retailers and consumers to apply pressure for an end to mulesing which was reported on the PETA website.
...
30. The period in which Newkirk and Akin were in Australia in the first half of November 2004, and perhaps late October, was a particularly important point of the PETA Australian Wool Campaign. It may be inferred that while they were in Australia in that period, Newkirk and Akin were involved in extensive discussions and extensive decisions in relation to the next steps in the campaign. Further, having regard to the roles and involvement of each of Rice and Matthews, it may be inferred that each of those persons participated in such discussions in Australia by telephone from outside of Australia or by email communication. It may also be inferred that such discussions included discussions with Animal Liberation representatives Sally Dingle-Wall and Angie Stephenson having regard to the subsequent events involving Animal Liberation and PETA and those two Animal Liberation representatives. The conduct of Newkirk and Akin in participating in such discussions and decisions while in Australia constituted conduct by them in Australia. The conduct of Rice and Matthews in participating in such telephone discussions and email correspondence constituted conduct by them in Australia.
31. It may be inferred that such discussions and decisions included operative decisions as to matters to be dealt with in the 60 Minutes interview, statements which should appear on the PETA websites relating to the campaign (including, by way of example, the Baker statement on 9 November 2004), the progressing as a matter of urgency of the Benetton materials (including the proposed website materials which subsequently became the 2nd Benetton Conduct), the determination to pursue Benetton by the use of such materials (including website materials), the form and distribution of the 1st, 2nd and 3rd Australian Newsletters, targeting David Jones as to its sale of Benetton garments (the 4th Benetton Conduct), the pursuit and form of the Australian Protest Conduct, and the pursuit of the retailers who were contacted shortly after Akin’s return from Australia.
32. Newkirk participated in the 60 Minutes interview as part of the business activities of PETA, including for the purpose of promoting the purposes of the PETA Australian Wool Campaign. That constituted conduct by Newkirk in Australia. During the course of the 60 Minutes interview, Newkirk made the following statements in relation to the PETA Australian Wool Campaign and her knowledge, approval and involvement in every aspect of that campaign:
There’s no budging them unless they feel the pressure. You know bleeding hearts don’t affect them. Bleating lambs don’t affect them, but contracting wallets will affect them.
...
Their fate is in their hands. They can decide today. They can decide in three months. They can decide next year or they can decide in four years. But we’ll have an impact. It’s up to them how much impact, how long this war goes on.
...
We’re very close to bringing at least two more [companies who use Australian wool] on board as we have with Abercrombie and Fitch.
...
We say we’d like to present you with the facts. And if they ignore us, we write again and say we urge you to consider what’s happening here. And if they continue and continue to ignore us, then we have more people write to them and sometimes a celebrity will call them. And then we tell them, if you are going to ignore this, we have the right to be outside your stores. And then usually, they come along.
...
34. The 1st Australian Newsletter was issued on 30 November 2004 under PETA letterhead with Jason Baker as a contact. It invited readers to visit PETA’s website at savethesheep.com. The contents of the newsletter – including its representations and incitement to protest on 1 December 2004 (ie, the Australian Protest Conduct) – and its proximity to the visit of Newkirk and Akin to Australia and the Australian media campaign, permit the inference that the document was the product of discussions and decisions which took place in Australia involving, inter alios, Newkirk, Akin, Rice and Matthews (the latter two by telephone or email).
...
37. The 2nd Australian Newsletter was issued in Sydney on 11 December 2004 under PETA letterhead with Cem Akin as a contact. That constituted conduct by Akin in Australia. It invited readers to visit PETA’s website at savethesheep.com. Its contents (including its representations and incitement to protest), and its proximity to the visit of Newkirk and Akin to Australia and the Australian media campaign, permit the inference that the document was the product of conduct in Australia by Newkirk, Akin, Rice and Matthews, being the discussions and decisions which took place in Australia involving them (the latter two by telephone or email) as described above. Angie Stephenson of Animal Liberation was also identified as a contact on the newsletter.
...
39. The 3rd Australian Newsletter was issued on 18 December 2004 by Jodi Ruckley who provided her contact details as JodiR@peta.org together with her Australian mobile number. It invited readers to: Check out our great new merchandise at http://www.cafepress.com/petstore/446860. Its contents (including its representations and incitement to protest), and its proximity to the visit of Newkirk and Akin to Australia and the Australian media campaign, permit the inference that the document was the product of conduct in Australia by Newkirk, Akin, Rice and Matthews, being the discussions and decisions which took place in Australia involving them (the latter two by telephone or email) as described above.
40. In addition, the newsletter states: Today, we announced that Benetton will be our next target ... The campaign was launched with demonstrations in the US and Italy. ... We need people to protest and leaflet outside David Jones Stores (where Benetton products are sold) to put pressure on Benetton to stop supporting the cruel practices of live export and mulesing. Furthermore, the website page referred to in the newsletter, was one of the pages of the cafepress.com/petstore website, another such cafepress.com/petstore page containing the Benetton is Baad goods, which were sold upon commencement of the Benetton campaign. The decision to target David Jones in association with the just-launched Benetton campaign is unlikely to have been made by Ruckley without consultation with the key team leaders in the USA. Having regard to the involvement in the overall campaign of each of Newkirk, Akin, Rice and Matthews, it may be inferred that each of them was in telephone or email communication with Ruckley in Australia in connection with the contents of this newsletter and the proposed David Jones development. Such telephone and email communication of Newkirk, Akin, Rice and Matthews constituted further conduct by them in Australia.’
30 In short, the applicant’s case is that Ms Newkirk was either in Australia making decisions in concert with other PETA representatives, or she was in email or telephonic communication with PETA’s Australian representatives in relation to matters occurring in Australia, and that her conduct in that regard occurred in Australia.
31 There are, or may be, obvious problems in proving such a case, but it should not be struck out at the threshold, when conventional pre-trial procedures may enable the case to be fleshed out in more detail. It cannot be said on the basis of the materials currently available that such a case is incapable of success.
32 Whether the conduct referred to in par 22(a) above occurred in Australia is a difficult question. The FASC alleges that the representations on PETA’s websites are available to be downloaded and are in fact downloaded in Australia, such that they are representations made by PETA in trade or commerce in Australia. There is no allegation that the website material was specifically targeted or directed at consumers in Australia, as opposed to the world at large: cf Ward Group Pty Ltd v Brodie & Stone PLC [2005] FCA 471; (2005) 215 ALR 716 at 725-726 where it was held that the use of a trade mark by website proprietors on the internet, without more, did not amount to a use of the mark in Australia when the marketing of the products in a manner that used the mark on the internet was directed to the world at large, rather than being targeted at persons in Australia.
33 Whatever may be the position in relation to the law of trade marks, it seems to me to be at least arguable that if material on an American website is downloaded by consumers in Australia then the representations contained in that material have been made in Australia. It is beside the point that they may also have been made in other places as well.
34 For the reasons previously given, it is arguable that the representations were made in trade or commerce. Accordingly, the application to strike out the FASC insofar as it alleges that Ms Newkirk is accessorily liable for contraventions of s 52 of the TPA fails.
(c) Contravention of s 45D of the Act
35 PETA is alleged to carry on business in Australia. The FASC pleads contraventions of s 45D of the TPA by PETA by reason of conduct occurring both within and outside Australia. Section 5(1) of the TPA extends the application of s 45D of the Act to the engaging in conduct outside Australia by a body corporate carrying on business within Australia. PETA is alleged to have engaged in foreign conduct in concert with Ms Newkirk and others, but the pleaded consequence of the foreign conduct is a contravention of s 45D by PETA, and not a contravention of s 45D by Ms Newkirk. Thus whether or not PETA carries on business in Australia is irrelevant to the alleged contravention by Ms Newkirk of s 45D.
36 Ms Newkirk is alleged to have engaged in ten items of conduct in Australia, in concert with PETA and others as part of the PETA Australian Wool Campaign. The concerted action in which Ms Newkirk and others are alleged to have engaged, which is said to result in a contravention of s 45D of the TPA, can be summarised as follows:
(a) public statements as to the unnecessary cruelty inflicted upon sheep by the practice of mulesing and as to the unethical behaviour of those who buy or deal in products made of Australian wool;
(b) public exhortations that no one should buy Australian wool, or Australian wool products, until the practice of mulesing ceases;
(c) urging consumers not to acquire Benetton products, and threatening Benetton with adverse publicity if it continues to stock products made of Australian wool;
(d) urging David Jones not to acquire Benetton products and threatening it with adverse publicity should it continue to do so;
(e) the staging of a protest outside unnamed business premises in Pitt Street Mall where statements to the effect of (a) and (b) above were made;
(f) public statements as to the success which boycotts organised by PETA have had in the past, and as to the fact that they may be extended to other retailers; and
(g) public shaming of those who purchase or sell Australian wool or products made from Australian wool.
That conduct is said to result in contraventions of s 45D of the TPA at two different levels in the supply chain.
37 The first way in which the applicants put their case is that the conduct:
(a) hindered or prevented the acquisition of Australian Wool by Australian Wool Acquirers (3rd person) from the applicants (4th person); or
(b) constituted an attempt to hinder or prevent the acquisition of Australian Wool from the applicants; and
(c) was engaged in for the purpose, and would be likely to have the effect of causing substantial loss or damage to the business of the applicants.
38 The second way in which the applicants put their case is that the conduct:
(a) hindered or prevented the acquisition of Australian Wool Garments by consumers (3rd person) from retailers (4th person); or
(b) constituted an attempt to hinder or prevent the acquisition of Australian Wool Garments by consumers from retailers, and
(c) was engaged in for the purpose and would be likely to have the effect of causing substantial loss or damage to the business of the retailer to which such conduct was directed.
39 The only specific allegations in the FASC as to the impact of the pleaded conduct upon the acquisition of Australian Wool or Australian Wool Garments are that:
(a) by reason of the 1st, 2nd, 3rd, 4th and 5th Benetton Conduct, or one or more of them, Benetton’s stated intention is no longer to purchase Australian Wool from woolgrowers who practice mulesing;
(b) the USA retailer Abercrombie & Fitch has ceased to purchase Australian Wool Garments as a result of the Abercrombie & Fitch Conduct which occurred outside Australia;
(c) by reason of ‘the said conduct of the Respondents’ (presumably the PETA Australian Wool Campaign conduct):
(i) Itochu Wool Ltd, an acquirer of Australian Wool, has received requests from certain of its customers to guarantee that the wool which it supplies comes from farms which do not mules their sheep; and
(ii) Hess Naturtextilien Gmbh, a German retailer, has ceased to purchase wool from the 105th applicant and has commenced purchasing wool from Argentina.
40 At a more general level, par 203 of the FASC alleges that the PETA Australian Wool Campaign Conduct either severally or in combination:
‘(a) has caused and is continuing to cause a substantial number of consumers to form a lower opinion of Australian Wool, Australian Wool Garments and any Retailer which sells Australian Wool Garments;
(b) has exposed and is continuing to expose consumers to criticism if they acquire Australian Wool Garments from a Retailer;
(c) has exposed and is continuing to expose Retailers who acquire Australian Wool Garments to the risk of being a target of the PETA Australian Wool Campaign and to public criticism;
(d) has caused and is continuing to cause Retailers to cease acquiring or to acquire fewer Australian Wool Garments or Australian Wool or products made from Australian Wool;
(e) as a consequence of (a) to (d), has caused and is continuing to cause Australian Wool Acquirers to cease acquiring or to acquire less Australian Wool from the Applicants; and
(f) as a consequence of (a) to (d), has caused and is continuing to cause a consequent depressing force on demand for and prices for Australian Wool.’
By reason of those matters the applicants have suffered and will continue to suffer loss and damage.
41 No specific allegation is made in the FASC of the impact of the pleaded conduct at the retailer level. There is no specific allegation that consumers were hindered or prevented from acquiring wool products from any particular retailer. At the more general level, par 203 (a)-(d) bears upon that question as does par 239 (i), (ii) and (iii), which alleges that the concerted conduct:
‘(i) was engaged in for the purpose, or for purposes that include the purpose, of causing substantial loss or damage to the business of the Retailer to which such conduct was directed;
(ii) would have, or be likely to have the effect, of causing substantial loss or damage to the business of such Retailer; and
(iii) hindered or prevented the acquisition of Australian Wool Garments or other goods of such Retailer by consumers.’
Benetton, Myer and David Jones are identified as the targets of the Australian Protest Conduct. Benetton and any retailer from whose store Benetton goods are sold are identified as the targets of other items of conduct, but the ‘Retailers’ who are the fourth persons for the purposes of the conduct alleged in par 239 of the FASC to result in contraventions of s 45D of the TPA are not otherwise identified.
42 The particulars letter refers to various statements by Ms Newkirk and other PETA officers which describe PETA’s campaign against the Australian merino wool industry as involving the boycotting of retailers of products made from Australian wool with the object of causing financial loss to Australian Woolgrowers until the practice of mulesing is abandoned. The premise upon which the campaign is constructed is that by stifling sales of Australian Wool Garments at the retail level, financial harm will accrue to Australian Woolgrowers. Similar campaigns founded on a similar premise in other industries have proved successful in the past.
43 Clearly enough the Australian Wool Campaign Conduct (FASC par 200) of which the Australian conduct forms part, was intended to induce consumers not to purchase products made from Australian Wool from retailers, with a view to inflicting financial loss on Australian woolgrowers. That is the substance of the Australian Wool boycott which PETA announced in October 2004, and which it proceeded to implement thereafter. That is the blueprint which PETA devised for its campaign, and which it had successfully pursued in other areas, on other occasions.
44 Ms Newkirk’s principal complaint about the pleading of the s 45D case is that there is no identification of who was hindered or prevented from acquiring Australian Wool or Australian Wool Garments by the conduct pleaded, or how. In the respondents’ submission, the applicants have created a theoretical construct by pleading the terms of s 45D, rather than proving facts which bring the applicants’ case within that section. I upheld a similar submission in relation to the Amended Statement of Claim in AWI (No 1).
45 Identification of the fourth persons who are affected by the concerted action of the first and second persons is pivotal to the operation of s 45D if only because in many circumstances it will be necessary to know whether the fourth person is a corporation, and because the conduct complained of must be engaged in for the purpose of causing substantial loss or damage to the business of the fourth person, and be likely to have that effect. Shortly put, the target of the concerted action of the first and second persons must be the business or businesses of one or more fourth persons.
46 But it is the first and second persons who select the targets of their conduct; there may be more than one target, and there may be a large number of them. No authority has been cited for the proposition that the first and second persons must know the names of their intended targets; it is at least arguably sufficient for them to have an appreciation of the description of the intended targets, although more specific identification may later be required as part of the process of proof.
47 The applicants plead that the fourth persons in relation to the acquisition of Australian Wool are the applicants, and the fourth persons in relation to the acquisition of Australian Wool Garments are ‘retailers’, although in relation to some items of conduct falling within par 239 of the FASC, one or more of Benetton, David Jones or Myer is identified as the target of particular conduct.
48 Public statements made by Ms Newkirk and/or PETA officers referred to in par 52 of the FASC and in the particulars letter indicate that the targets of PETA’s Australian Wool Campaign are Australian Woolgrowers who engage in the practice of mulesing, and either retailers generally who stock Australian Wool products, or particular retailers who do not succumb to PETA’s demands that they cease stocking Australian Wool Garments. Benetton and Abercrombie & Fitch are examples.
49 The applicants have identified as the fourth persons two bodies of persons which correspond with the two groups identified by PETA as the targets of its Australian Wool Campaign. At least at this stage of the proceedings, it is appropriate to assume that PETA’s campaign has some prospect of achieving its intended and announced effects. Thus the FASC describes the targets of PETA’s campaign at the same level of generality as PETA employs in the description of its Australian Wool Campaign, and the FASC, as a pleading, is not objectionable on that account.
50 It is true that the FASC does not plead any specific cases or examples where the acquisition of Australian Wool, or the acquisition of Australian Wool Garments has been prevented by the concerted action pleaded in pars 231 or 239 of the FASC. The conduct pleaded in those paragraphs could not of itself prevent the acquisition of Australian Wool, or the acquisition of Australian Wool Garments. It might or might not do so. Something more would be required before that conduct could mature into prevention.
51 But the FASC should not be struck out on this account for two reasons. First, par 52 of the FASC and the particulars letter refer to the objective sought to be achieved by PETA and its officers of preventing the acquisition of Australian Wool from Australian Woolgrowers and of Australian Wool Garments from retailers unless the practice of mulesing is abandoned, and pars 231(v) and 239(iv) of the FASC charge an attempt to prevent the relevant acquisitions. Pursuant to s 80(1)(b) of the TPA an injunction lies in relation to conduct that constitutes attempting to contravene s 45D, and the applicants seek such an injunction. Second, the operation of s 45D is also enlivened by conduct which hinders the relevant acquisition. Conduct which falls short of prevention may nonetheless hinder the acquisition: see AWI (No 1) at [34] – [36].
52 The facts alleged in par 203 of the FASC (quoted in par 40 above) would, if established, at least arguably raise a case of application by PETA and its officers of pressure on consumers and Australian Wool Acquirers which might arguably constitute hindering the acquisition of the products in question.
53 I reject the submission made by counsel for Ms Newkirk that the pleading of the applicants’ case is in some way rendered objectionable by the decision of the High Court in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7; (1991) 172 CLR 32. The majority in that case decided that conduct which prevents the supply of goods by a target corporation, without more, does not amount to the hindering or preventing the acquisition of goods from the target, but that is not the way in which the applicants’ case is pleaded. Nor do I accept the submission that the circumstance that the same or substantially the same concerted action is relied upon as preventing or hindering the acquisition both of Australian Wool and of Australian Wool Products demonstrates that the applicants’ case is fundamentally flawed.
54 I have already rejected the submission made by counsel for Ms Newkirk that the FASC is deficient in its pleading of the facts relied upon in support of the contention that Ms Newkirk acted in concert with others, as well as the submission that no Australian conduct on the part of Ms Newkirk has been identified.
55 The application to strike out the s 45D case therefore fails.
(d) Contravention of s 45DB of the Act
56 Subsection 45DB(1) of the TPA provides that a person must not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (who is not an employer of the first person) from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia.
57 About 95 per cent of the annual production of Australian Wool is exported to places outside Australia. The PETA Australian Wool Campaign can thus be seen as conduct which is designed to hinder or prevent the export of Australian Wool, inasmuch as a purpose of the conduct is to induce potential overseas Australian Wool Acquirers not to acquire Australian Wool. On a broad reading of s 45DB, conduct which prevents an export sale of wool is at least arguably conduct which prevents the putative vendor from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia because, as a result of the frustration of the intended sale, there will be no movement of those goods overseas.
58 But Ms Newkirk’s counsel submits that s 45DB is only concerned with conduct which hinders or prevents the movement of goods. The section is directed at the act of movement of the goods, and not at acts anterior to the act of movement. There is no allegation made in the FASC that there has been any hindering or prevention of the actual movement of Australian Wool hence s 45DB has no relevant operation. The construction for which Ms Newkirk’s counsel contends gains considerable support from statements made in the Senate in connection with the Workplace Relations And Other Legislation Amendment Bill 1996 which was the genesis of s 45DB.
59 When that Bill was first introduced into the House, subs 45DB(1) would have prohibited persons, acting in concert, from engaging in conduct where the purpose and effect (or likely effect) of the conduct is to prevent or substantially hinder a third person from engaging in trade or commerce: between Australia and other countries; or among the States and Territories; or within a Territory. A Government amendment to subs 45DB(1), which was made in the Senate, confined the prohibition in subs 45DB(1) so that it applied only to conduct the purpose and effect (or likely effect) of which is to prevent or substantially hinder another person from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia.
60 Incorporated into Hansard was a document recording the substantial arguments of the government in relation to the amendment (Australia, Senate Hansard, 19 November 1996, p 5606). That document included the following:
‘Some concern has been expressed that the provision, as amended, still imposes a very broad prohibition on conduct that constitutes a primary or second boycott. The concern appears to be based on a view that the expression "trade or commerce involving the movement of goods between Australia and places outside Australia" covers a very broad range of activities, because a great many manufacturing and distribution operations have some connection with the export of goods.
The concern is ill-founded. The intention of this amendment is that the prohibition in section 45DB will not apply in respect of the production and distribution of goods within Australia.
The boycott conduct that the section is designed to prohibit is conduct that has been undertaken for a particular purpose and which has, or is likely to have, a particular effect. The purpose and effect of the conduct must be to prevent or substantially hinder a third person from engaging in a particular type of trade or commerce. That is, trade or commerce involving the movement of goods between Australia and places outside Australia. In this context, the use of the expression "trade or commerce involving the movement of goods between Australia and places outside Australia" does not mean merely that the trade or commerce affected includes the movement of goods into or out of Australia, or that the movement of goods into or out of Australia forms some part of, or is related to, the trade and commerce. Rather, it means that the trade or commerce that is affected must entail, or be rolled up with, the movement of goods between Australia and places outside Australia.’
61 During the debate that ensued, Senator Murray, a mover of the motion, is recorded as saying:
‘These amendments represent a signification modification of the original bill ... Instead of a general prohibition on primary boycotts affecting trade and commerce, the prohibition will extend only to trade and commerce involving the movement of goods between Australia and places outside it. This provision will pick up only the act of movement; it will not pick up any other aspect of trade and commerce.
Some commentators have suggested that it will pick up any aspect of trade and commerce if some aspect of that trade and commerce were to involve the movement of goods. I wish to state categorically, as a joint mover of the motion, that this is clearly not the intention of that provision. This provision is targeted purely and solely at movement, at shipping, for example. The reason for that is that primary boycotts on the wharves affect many other people. The effect is not limited to the immediate parties involved. If the waterside workers refuse to load perishable goods, the supplying factory might be forced to suspend operations and stand down workers, resulting in innocent employers and employees being hurt.’
62 Subsection 45DB(1), in the form originally proposed, would probably have been enlivened by conduct which hindered or prevented a sale of wool for export: Australasian Meat Industry Employees Union v Meat And Allied Trades Federation of Australia (1991) 32 FCR 318 at 325. However, it is clear that subs 45DB(1) as enacted was intended to have a much narrower field of operation.
63 The substantial issue between the parties is whether I should decide the construction question now, or allow the issue to go to trial on the basis that s 45DB is ambiguous, and might on one view be broad enough to encompass the applicants’ claim. In favour of that view, is that most of the s 45DB factual questions will be litigated in any event as part of the s 45D claim, and the prospect of the applicants succeeding under s 45DB if they fail under s 45D is more theoretical than real. As against that, this litigation is complex enough without adding to its complexity by the inclusion of alternative claims which have no realistic prospect of success.
64 In the end, I have come to the conclusion that I should decide the construction question now. Neither party suggested that it will be in any better position to deal with the question at trial. The words ‘involving the movement of goods’ are obviously words of limitation intended to narrow what would otherwise have been the scope of the s 45DB prohibition. In my view, the construction of the subsection contended for by Mr Smith is correct, particularly when regard is had to the Hansard materials.
65 The s 45DB claim should be struck out.
(e) Intimidation of various retailers
66 The intimidation claims are set forth in par 249 of the FASC. The elements of the tort were summarised in AWI No 1. In News Group Newspapers Limited v Society of Graphical & Allied Trades (No 2) [1987] ICR 181 (‘SOGAT’) at 204 Stuart-Smith J said:
‘The tort of intimidation is committed when A delivers a threat to B that he will commit an act or use means unlawful against B, as a result of which B does or refrains from doing some act which he is entitled to do, thereby causing damage either to himself or C.’
Thus the tort of intimidation requires that the threatened unlawful act must be effective. However, where the threats are serious and there is a real risk that some to whom they are made succumb to them, the Court can grant injunctive relief: SOGAT at 205.
67 With the exception of Abercrombie & Fitch, and arguably also in relation to Benetton, the FASC does not include an allegation that any retailer has complied with a demand made by the respondents. However, the FASC should not be struck out on this account as par 14 of the Further Amended Application includes a claim for an injunction and par 250 of the FASC alleges a threat on the part of the respondents to engage in further acts of intimidation.
68 The FASC does sufficiently plead that the retailers were threatened with an unlawful act. Conduct in contravention of s 52 of the TPA or other false statements are at least arguably unlawful. I reject the respondents’ submission that the pleading is defective in relation to overseas conduct because it fails to plead foreign law as there is no obligation to plead foreign law in order to render a claim justiciable or to establish a cause of action. It is only necessary for a party to adduce evidence of foreign law if an applicant seeks to rely on a particular advantage or a respondent on a specific defence: Regie National Des Usines Renault v Zhang [2002] HCA 10; (2002) 210 CLR 491 at [68] and [72].
69 I accept the respondents’ submission that there remains a failure to plead any link between the conduct complained of and any loss sustained by the applicants, subject to the possible qualification that par 205 of the FASC alleges that AWI, Elders and the 105th applicant have been obliged to apply additional funds and resources by way of publicity, promotions and otherwise to combat the intended effect of the respondents’ conduct, and the adverse publicity consequences of that conduct. Whilst ever the pleading remains in that state, the damages claim will fail subject to the possible qualification. But the intimidation claim should not be struck out on that account because of the claim for injunctive relief. Another, but a subsidiary, reason for not striking out the intimidation claim is that there would be little, if any, practical advantage arising from striking out the claim as it simply seeks to place a particular legal complexion upon facts which will need to be established and proved for the purposes of the TPA claims.
(f) Conspiracy
70 The conspiracy claim is pleaded in par 251 of the FASC. The facts on which the claims are based are the foundation of other claims which I have declined to strike out. The FASC identifies the objects of the conspiracy; it is not necessary that there be an express allegation that the applicants were the sole objects of the alleged conspiracy. I have already concluded that the facts relied upon to establish the requisite combination have been sufficiently pleaded, and the failure to plead the provisions of foreign law is not a strike out point.
71 I agree that the causal linkage between the damages claimed and the wrongful act has not been pleaded, subject to the possible qualification referred to above. The respondents point out that the facts relied upon for the conspiracy claims are the same facts that are otherwise alleged to give rise to the TPA claims and the intimidation claims. In AWI No 1 I referred to the principle that it is not open to a party to plead as an alternative to a substantive cause of action already pleaded, the tort of conspiracy to commit that substantive wrong. Ms Newkirk’s counsel has submitted that the conspiracy pleading infringes that principle, and counsel for the applicants did not respond to that contention in his submissions. For that reason, the conspiracy claims should be struck out.
Form of the FASC generally
72 The FASC is not a user-friendly document, in the sense that unravelling all of its permutations and combinations takes time and concentration. However, it is by no means clear that the task of comprehension would be simplified if each cause of action were pleaded out in full. The structure of the pleading is to plead out all relevant factual matters in relation to a particular instance of conduct in one section of the pleading. Thus, matters in relation to a particular instance of conduct will include allegations which are relevant to misleading conduct, intimidation, conspiracy to commit unlawful acts, s 45D and s 45DB. Each of the causes of action is then dealt with after the pleading out of the instances of conduct. Each cause of action has its own section. Each section draws on the relevant parts of the allegations pleaded earlier in relation to each instance of conduct. The advantage of the structure is that it saves repeating the allegations in respect of each instance of conduct in respect of each cause of action. I agree with the applicants’ contention that such an alternative structure would have been oppressively prolix.
73 Complaints that the pleading is ‘nonsensical’ or ‘incomprehensive’ represent an exaggeration of the position, and I am not prepared to strike out the FASC by reason of its structure.
74 In deciding whether or not to strike out particular sections of the FASC I have taken into consideration matters which are referred to in the particulars letter. Ms Newkirk’s counsel submitted that I should not do so as all material facts must be pleaded. Whilst I have some sympathy with that point of view the decision of Drummond J in State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 supports the course which I have taken. Ms Newkirk’s counsel drew my attention to the provisions of Order 11 rule 1B of the Federal Court Rules which was introduced in June 2002 and requires a certificate in accordance with Form 15B to be appended to the pleading certifying that there is a reasonable basis in fact for each allegation made. Ms Newkirk’s counsel submitted that the introduction of this rule rendered inappropriate the more flexible approach adopted by Drummond J than was the case in centuries past. I do not agree.
75 I order that the FASC be struck out insofar as it alleges:
(a) a contravention of s 45DB of the TPA by Ms Newkirk, Ms Dingle-Wall and Ms Stephenson; and
(b) a conspiracy on the part of Ms Newkirk, Ms Dingle-Wall and Ms Stephenson to injure the applicants by unlawful means
but that the motions filed on 28 June 2005 and 29 July 2005 should be otherwise dismissed.
76 The respondents substantially failed upon those motions. Such limited success as they have had is trifling and inconsequential. In those circumstances, the respective respondents should pay the applicants’ costs of those motions.
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