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Adani Mining Pty Ltd v Pennings[2024] QSC 302

Adani Mining Pty Ltd v Pennings[2024] QSC 302

SUPREME COURT OF QUEENSLAND

CITATION:

Adani Mining Pty Ltd v Pennings [2024] QSC 302

PARTIES:

ADANI MINING PTY LTD ACN 145 555 205

(First Plaintiff)

AND

CARMICHAEL RAIL NETWORK PTY LTD AS TRUSTEE FOR THE CARMICHAEL RAIL NETWORK TRUST ACN 601 738 685

(Second Plaintiff)

v

BENJAMIN WILLIAM DEVENISH PENNINGS

(Defendant)

FILE NO:

BS 9186 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

29-30 January 2024 and 26 February 2024

JUDGE:

Brown J

ORDERS:

  1. 1.
    The following paragraphs of the FASOC are struck out with liberty to replead:
  1. (a)
    [46] to [57A];
  1. (b)
    [63], [65] and [66];
  1. (c)
    [67] to [73A]; and
  1. (d)
    [78] to [82].
  1. 2.
    The plaintiffs are to file and serve a second further amended statement of claim by 14 February 2025.
  1. 3.
    The plaintiffs’ solicitor is to file and serve an affidavit deposing that it has made any necessary investigations required to replead [63] and [66], and is satisfied that there is a reasonable cause of action in relation to Downer and that they have provided the second further amended statement of claim to their clients to provide instructions that they have reviewed the second further amended statement of claim and have instructed that it can be filed in that form.
  1. 4.
    The enforcement of:
  1. (a)
    paragraph [7] of the Orders made in this proceeding by Brown J dated 29 July 2021; and
  1. (b)
    paragraphs [11(a)], [11(b)] and [11(c)] of the Orders made in this proceeding by Callaghan J dated 8 March 2022,
  1. is stayed until the determination of the proceeding or earlier order.
  1. 5.
    The amended application is otherwise dismissed.
  1. 6.
    The parties have liberty to apply for any further order that may be required to give effect to Order 4.
  1. 7.
    The parties are to provide submissions as to costs by 31 January 2025.
  1. 8.
    The Resolution Registrar, in consultation with the supervised case list manager, is to list this matter for review at the earliest available date after 14 February 2025 before a supervised case list judge for directions.

CATCHWORDS:

TORTS – MISCELLANEOUS TORTS – CONSPIRING TO INJURE – GENERAL PRINCIPLES – where plaintiffs alleged unlawful conspiracy to injure against the defendant – where plaintiffs alleged lawful means conspiracy in the alternative to unlawful means conspiracy – where pleadings do not clearly distinguish between unlawful means conspiracy and lawful means conspiracy – whether pleadings fail to specify the unlawful means agreed to be employed and the facts or circumstances which made them unlawful – whether pleadings do not establish necessary causal relationship between unlawful conduct and loss and damage

TORTS – MISCELLANEOUS TORTS – INTIMIDATION – where the plaintiffs allege that the defendant has engaged in tortious intimidation such that he is liable to pay damages – where the plaintiffs allege that certain targeted contractors withdrew from negotiations with the plaintiffs as a result of threats and demands issued by the defendant – whether the plaintiffs properly plead the causal link between the alleged loss to the plaintiffs and the alleged termination of negotiations by contractors and sub-contractors as a result of threats and demands made by the defendant – whether the claim for loss is vexatious, harassing and manifestly groundless – whether the plaintiffs plead unnecessary allegations which are prejudicial and delaying – whether the pleading as to intimidation should be struck-out in whole or in part

TORTS – MISCELLANEOUS TORTS – INTERNTIONAL INTERFERENCE WITH CONTRACT – GENERALLY – where the plaintiffs maintain a claim for injunctive relief to restrain the defendant from future acts of procuring or inducing others to breach contractual duties of confidence by disclosing the plaintiffs’ confidential to him, and from using any confidential information which he obtains – whether the plaintiffs’ pleading failed to disclose a reasonable basis upon which it could be found it is likely that the alleged apprehended future acts of tortious interference will occur – whether the plaintiffs’ pleading does not disclose the existence of a coherent causal link between the defendant’s impugned tortious conduct, which the plaintiffs seek to restrain, and the loss or damage which the plaintiffs say they will sustain because of the conduct

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – GENERALLY – where the defendant applies to set aside the interlocutory injunctions issued by orders made in this proceeding on 11 September 2020 – where the plaintiff has abandoned certain allegations which were relevant to the prima facie claim upon which the injunctions were granted – whether there is a material change of circumstance – whether the balance of convenience no longer favours the injunctions remaining in place 

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – where the defendant seeks to strike out or stay enforcement of costs orders made in favour of the plaintiffs on 29 July 2021 and 8 March 2022 – whether there is a basis to strike out or stay the enforcement of the costs orders in the circumstances

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where the defendant seeks to permanently stay the proceedings as an abuse of process or strike the proceedings and not permit liberty to replead – whether the plaintiffs’ claim involves an abuse of process – whether the various pleadings in the further amended statement of claim should be struck out with no leave to re-plead

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 171, r 367, r 667, r 668

Adani Mining Pty Ltd v Pennings [2020] QSC 249, considered

Adani Mining Pty Ltd v Pennings [2020] QSC 275, considered

Adani Mining Pty Ltd v Pennings [2021] QSC 162, considered

Adani Mining Pty Ltd v Pennings [2021] QSC 343, considered

AMA v CDK [2009] QSC 287, considered

Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272; [2012] FCA 758, cited

Daebo Shipping Co Ltd v The Ship Go Star (2012) 207 FCR 220; [2012] FCAFC 156, cited

Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691, cited

Jonker v Thomas International Ltd [2017] FCA 1397, cited

Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634; [2000] QSC 150, cited

Lee v Abedian [2017] 1 Qd R 549; [2016] QSC 92, considered

Lee v Abedian [2017] QSC 22, considered

Parbery v QNI Metals Pty Ltd (2018) 131 ACSR 27; [2018] QSC 240, considered

Resort Lifestyle Developments Pty Ltd v NGI Savannah Living Communities Pty Ltd (2022) 12 QR 67; [2022] QSC 194, cited

TSG Franchise Management Pty Ltd v Cigarette & Gift Warehouse (Franchising) Pty Ltd (No 2) [2016] FCA 674, considered

UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, cited

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, cited

Willmot v Queensland [2024] HCA 42, cited

Yap v Matic [2022] WASC 181, considered

COUNSEL:

G Gibson KC, with D Pyle and M Windsor, for the plaintiffs

M Hodge KC, with C Schneider, for the defendant

SOLICITORS:

Dowd + Wilson for the plaintiffs 

Marque Lawyers for the defendant

  1. [1]
    The present application is brought by Mr Pennings, the defendant, in these proceedings instituted by the plaintiffs, Adani Mining Pty Ltd (Adani) and Carmichael Rail Network Pty Ltd (Carmichael Rail). The defendant seeks to have these proceedings permanently stayed or struck out, or otherwise seeks to strike out various parts of the Further Amended Statement of Claim (FASOC). He also seeks set aside or permanently stay costs orders made by this Court and discharge injunctive orders made on 11 September 2020.
  2. [2]
    By way of brief background, the defendant was involved in the Galilee Blockade, where he and a number of like-minded people, passionate about addressing climate change, were involved in protesting and taking what is described as “Direct Action” to try and stop Adani and Carmichael Rail developing the Carmichael Mine (a coal mine) and Carmichael Rail Network (linking the mine to the existing rail network). That action involved not only Adani and Carmichael Mine but contractors, who are described as “Targeted Contractors”. These include companies, organisations and others engaged by or negotiating with Adani to work on the Carmichael Mine or Carmichael Rail Network or sub-contracted to those engaged by Adani or Carmichael Rail. In particular, in these proceedings, it is alleged that the Galilee Blockade ran two campaigns which are described as the “Infiltration Campaign” and the “Dob In Campaign”. They were run through the Galilee Blockade Website and other Galilee Blockade social media accounts and some mainstream media.
  3. [3]
    The Infiltration Campaign involved the Galilee Blockade encouraging persons to seek employment with the plaintiffs and obtain and disclose confidential information of Adani  and confidential information of Carmichael Rail to be used to facilitate Direct Action against the plaintiffs and Targeted Contractors and to pressure Targeted Contractors to withdraw from contracts and/or negotiations with the plaintiffs or cease to perform their work or otherwise frustrate the development of the Carmichael Mine or Carmichael Rail Network.
  4. [4]
    The Dob In Campaign was similarly described on various webpages of the Galilee Blockade Website and Galilee Blockade social media accounts and is said to have involved the Galilee Blockade seeking persons in possession of confidential information of the plaintiffs to disclose that information to be used in a similar way as the Infiltration Campaign.
  5. [5]
    Adani and Carmichael Rail contend that Mr Pennings’ actions were carried out contrary to the law and in 2020 sought injunctive relief against him and instituted proceedings seeking permanent injunctions and damages. 
  6. [6]
    In August 2023 the plaintiffs delivered the FASOC. It deleted a number of allegations that the defendant had received and misused what is defined in the FASOC as the Adani Confidential Information and Carmichael Rail Confidential Information ( Confidential Information) an claims that the defendant knowingly procured or induced others to breach their contractual or equitable duties of confidence owed to Adani or Carmichael Rail and breached equitable duties of confidence owed to Adani and Carmichael Rail as well as other parts of other claims asserting the misuse of  Confidential Information.
  7. [7]
    This proceeding has a long and extended history stemming back to 2020 when injunctive relief was granted by Martin J, as his Honour then was, on 11 September 2020.  Since then, there have been a number of applications of an interlocutory nature that have occurred, involving vigorous argument from both sides.  In one of those applications the plaintiffs applied for a confidentiality regime in relation to disclosure by them as well as limitations to be imposed in relation to the amount of disclosure and particulars required to be provided.  I made orders in that regard, including orders as to costs, on 29 July 2021. Subsequent to that time, there were further applications in relation to particulars, which were heard together by Callaghan J on 27 August 2021. The applications by the plaintiffs sought orders that confidential particulars be provided by example and that there be a confidentiality regime in relation to the particulars. That decision was delivered by his Honour on 16 December 2021. The plaintiffs were partially successful in both applications, which resulted in costs orders on 9 March 2022 whereby the defendant was ordered to pay a percentage of the plaintiffs’ costs. The matter was case managed on the supervised case list but, as a result of the FASOC being filed on 6 September 2023, another significant interlocutory dispute occurred which was heard over a non-consecutive three-day period early this year. 
  8. [8]
    The present interlocutory dispute involves multiple of issues arising out of the FASOC and also the service by the plaintiffs of a costs statement upon the defendant.  The argument extended over three days, involved lengthy submissions and a large amount of affidavit material.
  9. [9]
    The defendant, or the applicant in this interlocutory application, seeks orders permanently staying, or alternatively striking out, the proceeding as an abuse of process. This is on the basis of the cumulative effect of four matters, namely:
    1. first, that the plaintiffs’ conduct in abandoning one of their primary claims, which was based upon alleged receipt and misuse of confidential information by the defendant, suggests that the conduct of the proceeding to date has been an improper use of the court’s powers by the plaintiffs;
    2. secondly, that there remain fundamental deficiencies in the pleading of a number of claims, notwithstanding that proceeding was commenced more than three years ago and that there have been five rounds of amendments to the pleading, which is said to be evidence supporting the conclusion that the proceeding is an abuse of process;
    3. thirdly, the plaintiffs’ shifting contentions on issues of causation and alleged loss are said to demonstrate the fragile factual foundation upon which they are based and give further support to the conclusion that the plaintiffs’ prosecution of its claim is an abuse of process; and
    4. fourthly, that three cost statements served by the plaintiffs in relation to costs orders made on 29 July 2021 and 8 March 2022 have been affected by significant error and claim extraordinary amounts of costs which raises doubt as to whether the plaintiffs generally intended to use cost statements as a proper vindication of the court’s processes or as an instrument of oppression.
  10. [10]
    In the alternative, the defendant seeks orders:
    1. striking out various claims pleaded in the FASOC;
    2. setting aside or staying the enforcement of certain cost orders; and
    3. setting aside injunctive orders made against him on 11 September 2020. 
  11. [11]
    According to the plaintiffs, their abandonment in the FASOC of their allegation as to the defendant’s receipt of confidential information followed a disclosure of process which revealed a lack of evidence to support the fact that the defendant had obtained and misused confidential information. Despite numerous public representations being made by the defendant that large amounts of information had been disclosed to the Galilee Blockade, the disclosure process did not reveal any confidential information of the plaintiffs in the defendant’s possession.  The plaintiffs therefore could not provide particulars, which had been deferred by the particulars judgment, and the allegation that the defendant had in fact received confidential information was deleted as a material fact from the current pleading in the FASOC.  The key amendment, according to the plaintiffs, was to delete allegations which rely upon the defendant’s actual receipt of confidential information, but otherwise the causes of action are substantially the same as they have always been.  The plaintiffs contend that there is no basis supporting the submission by the defendant that the proceeding was brought for a purpose other than the legitimate purpose of recovering damages incurred by the plaintiffs as a result of the defendant’s conduct and obtaining injunctive relief to restrain future such conduct.  They reject the complaints made by the defendant and contend that his application should be dismissed. 

Issues for determination

  1. [12]
    I will first consider the alleged deficiencies in the FASOC.  The defendant submitted, and I accept, that the court’s view of the deficiencies in the FASOC complained of by the defendant will, in part, be relevant to the defendant’s primary claim that the proceeding as a whole ought to be stayed or struck out as an abuse of process as well as the defendant’s alternative claims for striking out all or some of the plaintiffs’ pleading.
  2. [13]
    Secondly, I will consider whether the injunction granted against the defendant on 11 September 2020 ought to be set aside.
  3. [14]
    Thirdly, I will consider whether the cost orders made against the defendant in the proceedings on 29 July 2021 and 16 December 2021 should be set aside or, alternatively, stayed. 
  4. [15]
    Finally, if necessary, I will consider whether the proceedings should be struck out or permanently stayed.

Alleged deficiencies in the FASOC

  1. [16]
    The background to the proceeding has been set out in paragraphs [1] to [9] of the decision of Martin J[1] and the reasons for my decision of 25 June 2021 at paragraphs [2] to [12].[2]
  2. [17]
    As to the alleged deficiencies in the FASOC, the plaintiffs complain that:
    1. in relation to the claim of tortious interference with contractual relations, the FASOC does not disclose a reasonable basis for apprehending that future tortious interference is likely, nor disclose a reasonable cause of action as to causation and loss;
    2. as to the claim of tortious intimidation, the pleading of causation is fundamentally flawed, the claim for loss is groundless and the plaintiffs have pleaded unnecessary allegations which are prejudicial and should be struck out; and
    3. as to the claim for damages and injunctive relief for alleged tortious conspiracies, the FASOC does not disclose a cause of action for lawful or unlawful conspiracy and there is no proper factual basis for inferring there is such a claim. 

Tests for strike out and abuse of process

  1. [18]
    The defendant contends that the plaintiffs’ pleadings in the FASOC as to each of the claims now remaining are deficient and are liable to be struck out under r 171 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and, given the level of deficiency, the proceeding should be struck out for abuse of process or permanently stayed.
  2. [19]
    The relevant principles in relation to a strike out under r 171 of the UCPR were conveniently summarised by Bond J, as his Honour then was, in Lee v Abedian:[3]

“[38]

All of the applicant defendants accept, as they must, that the power to strike out is to be used sparingly and only in clear cases: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129–130. The power cannot be exercised ‘once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it’: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91 per Dixon J.

[39]

However, they submit, and I agree, that the Court will not shrink from striking out a pleading which is defective because it does not disclose a reasonable cause of action, has a tendency to prejudice or delay a fair trial, contains allegations which are unnecessary, scandalous, vexatious or embarrassing, or which is otherwise an abuse of the processes of the Court.” (footnotes omitted).

Conspiracies

  1. [20]
    The plaintiffs rely on two kinds of conspiracy in the FASOC, pleaded as the “Information Conspiracy” and “Galilee Blockade Conspiracy”[4]. A third “Confidential Information Conspiracy” was deleted in the FASOC.
  2. [21]
    There are two torts of conspiracy: the first is a conspiracy to injure by lawful means; and the second is a conspiracy to injure by unlawful means. Justice Bond described the requirements of the two torts in Lee v Abedian in the following terms:[5]

“[69]

The elements of the tort of conspiracy to injure by lawful means are:

(a)

there was a combination or agreement between two or more persons;

(b)

the sole or dominant purpose of the combination or agreement was to injure the plaintiff;

(c)

the combination or agreement was carried into effect by the defendants’ conduct;

(d)

the defendants’ conduct in carrying the combination or agreement into effect caused damage to the plaintiff.

[70]

The elements of the tort of conspiracy to injure by unlawful means are:

(a)

there was a combination or agreement between two or more persons to engage in conduct amounting to unlawful means;

(b)

a purpose of that combination or agreement was to injure the plaintiff;

(c)

the combination or agreement was carried into effect by the commission of the agreed unlawful acts; and

(d)

those unlawful acts caused damage to the plaintiff.

[71]

It can be seen that the two torts have in common the need to prove the conspiracy; that the conspiracy involved an intention to injure; that the conspiracy was carried into effect; and that so doing caused damage to the plaintiff. And it may also be observed in relation to both torts, that in a case based on a clandestine arrangement or arrangements between conspirators, a plaintiff, who can be expected to be unable to plead the terms of an express agreement in the usual way, must at the least be able to plead and particularise the overt acts it intends to rely on to justify the inference that the agreement on which it relies was in fact made as it alleges.

[72]

There are three key distinctions between the two torts.

[73]

The first lies in the prominence of the required purpose of injuring the plaintiff. Both torts require the plaintiff to prove that a purpose of the conspiracy was to injure the plaintiff. For a lawful means conspiracy, however, the plaintiff must prove that the purpose of injuring the plaintiff was the sole or predominant purpose of the conspiracy. That is not required for an unlawful means conspiracy where it will suffice for a plaintiff to prove that causing injury to the plaintiff was a purpose of the conspiracy.

[74]

The second lies in the nature of the means agreed to be used to injure the plaintiff. For an unlawful means conspiracy, the plaintiff must prove that the combination or agreement was to engage in conduct which amounted to unlawful means. In other words, the unlawful means aspect must exist at the time the combination or agreement was made. That is not required for a lawful means conspiracy.

[75]

The third lies in the nature of the means in fact used to carry the conspiracy into effect and cause injury to the plaintiff. For an unlawful means conspiracy, the plaintiff must prove that the conspiracy was carried into effect by commission of the agreed unlawful acts and those agreed unlawful acts caused damage to the plaintiff. That is not required for a lawful means conspiracy where the plaintiff does not have to show that it was the unlawful part of the conspiracy that caused loss to the plaintiff.” (Bond J’s original emphasis replicated and footnotes omitted).

  1. [22]
    There was no dispute between the parties that his Honour accurately summarised the relevant principles with respect to the torts of conspiracy.
  2. [23]
    The allegations of unlawful conspiracy, particularly, call for a level of precision and particularity in the allegations made given the serious nature of the allegations.[6]

The FASOC

  1. [24]
    The framework for the Galilee Blockade Conspiracy in the FASOC is as follows:
  1. (a)
    paragraph [67] pleads that, between January 2017 and mid-September 2020, the defendant and at least one other person unknown to the plaintiffs (Unknown Conspirators) made an agreement or understanding to:
  1. (i)
    procure or induce persons to disclose the plaintiffs’ confidential information to them;
  1. (ii)
    further, or in the alternative, procure or induce persons to disclose information to them; and
  1. (iii)
    induce the targeted contractors[7] to withdraw from negotiations with the plaintiffs or contractors to the plaintiffs or terminate, breach or otherwise cease to perform contracts with the plaintiffs or those with contracts with the plaintiffs in respect of the Carmichael Mine or Rail Network;
  1. (b)
    paragraph [68] pleads that the Galilee Blockade Conspiracy was:
  1. (i)
    entered into with the sole or predominant purpose of injuring the Plaintiffs; and
  1. (ii)
    further, or in the alternative, entered into with a purpose of injuring the plaintiffs and to be carried out by direct action against targeted contractors by unlawful means which are then pleaded;
  1. (c)
    paragraph [69] pleads that, in furtherance of the Galilee Blockade Conspiracy:
  1. (i)
    the defendant, with the agreement or understanding of the Unknown Conspirators, engaged in conduct pleaded in [41] to [45] and [60]; and
  1. (ii)
    the defendant and the Unknown Conspirators engaged in conduct pleaded in [62] to [62B];
  1. (d)
    paragraph [73] pleads that, by reason of the matters pleaded in [67]-[69];
  1. (i)
    the Galilee Blockade Conspiracy was executed in whole or in part;
  1. (ii)
    Adani has suffered loss and damage, pleading as particulars the matters in [63];
  1. (iii)
    Carmichael Rail has suffered loss and damage, pleading as particulars the matters in [65]; and
  1. (e)
    paragraph [73A] pleads that, unless restrained, the defendant will continue to engage in the Galilee Blockade Conspiracy by engaging in the unlawful acts with his Unknown Conspirators pleaded in [68(b)(ii)] to [69] and that the plaintiffs will suffer loss.

Pleading of Agreement

  1. [25]
    The defendant first complains that the plaintiffs have failed to plead an essential element of the relevant cause of action, namely that the defendant and the unknown conspirators conspired to employ unlawful means.  He contends that there is no allegation of any agreement to employ unlawful means in the pleading of the alleged agreements or understandings.[8]
  2. [26]
    The plaintiffs contend that the FASOC makes it clear that the unlawful means conspiracy is premised on an agreement between the co-conspirators which was put into effect by engaging in unlawful acts intended to injure the plaintiffs, which it contends is contained in [67] and [68(b)(ii)].
  3. [27]
    The plaintiffs’ case for unlawful means conspiracy appears to be that:
  1. (a)
    the relevant agreement or understanding was to procure the confidential information of Adani and Carmichael with a purpose of injuring the plaintiffs; and
  1. (b)
    it was part of the agreement and/or the agreement was carried into effect by the procuring of confidential information by the defendant and the use of that confidential information to:
  1. (i)
    make threats and/or demands against targeted contractors;
  1. (ii)
    enter targeted contractors’ land to commit trespass;
  1. (iii)
    unjustifiably and substantially interfere with targeted contractors’ land by engaging in the tort of nuisance; or
  1. (iv)
    procure or induce employees or contractors of the plaintiffs to breach their contractual duty of confidence.
  1. [28]
    That is not, however, reflected in the FASOC as it stands.
  2. [29]
    Focussing on the Galilee Blockade Conspiracy, the plaintiffs rely in part on [67(a)], which pleads an agreement or understanding to procure or induce persons to disclose the plaintiffs’ confidential information. Agreeing to seek confidential information by procuring parties to breach a duty of confidence could be an agreement to engage in conduct amounting to unlawful means, however, there is confusion in the FASOC as to its inter-relationship with [68(b)(ii)] pleading as to how that is then said to be carried into effect and how the purpose of that agreement is to injure a party and how it itself caused damage, which I will discuss below.  There is a further difficulty. Particulars of the agreement are provided but are confusing insofar as sub-paragraph (a) of the particulars to [67] alleges the agreement was reached orally or in writing, or partly orally and partly in writing, but no facts are pleaded supporting that agreement. In fact, upon clarification in oral submissions by Mr Gibson KC, it seems that the agreement is to be inferred. Paragraph (b) of the particulars, which is meant to be in the alternative, states the making of the agreement is to be inferred from, and is evidenced by, conduct or statements. They are not said to be alternative allegations, although that presumably must be the case. In particular, unlawful means conspiracy requires a level of particularity and precision in what is relied upon as to the time and making of each agreement between the alleged conspirators, the unlawful means agreed to be employed and the facts or circumstances which made them unlawful,[9] given the serious nature of the allegation.[10] It may be accepted that the best that can be done is for an agreement to be inferred from certain conduct and representations. There are difficulties in being able to plead an agreement where there is a clandestine arrangement, but as Bond J observed in Lee, even in that case:[11]

“… a plaintiff, who can be expected to be unable to plead the terms of an express agreement in the usual way, must at the least be able to plead and particularise the overt acts it intends to rely on to justify the inference that the agreement on which it relies was in fact made as it alleges.” (footnote omitted).

  1. [30]
    However, in the FASOC, the particulars do not support the allegation that there is an agreement in the terms pleaded in [67(a)]. The particulars appear to only support the allegation that the other parties involved in the Galilee Blockade are parties to the agreement. There are no particulars supporting the allegation that the agreement was to procure confidential information.
  2. [31]
    While the plaintiffs rely on the same factual foundations to advance each type of conspiracy that would constitute the Galilee Blockade Conspiracy, and contend that if it isn’t one then it is the other, the elements of lawful means conspiracy are distinct from the elements of unlawful means conspiracy and the FASOC must identify which facts support which elements of each of the conspiracies. That distinction is accentuated by the “further, or in the alternative” in [67(b)] of the FASOC. In Lee v Abedian where Bond J identified the problem to be that:[12] “… he does so in a way which does not clearly distinguish between the two torts and this failure creates many difficulties, not least of which is for the defendants in understanding which facts are relied upon in support of which cause of action”. The same difficulty arises in relation to the FASOC. While the plaintiffs rely on [68] to identify the unlawful means, the FASOC in its present form does not resolve the difficulty.
  3. [32]
    The plaintiffs contend that the particularisation of “unlawful means” is found in [68]. As to the plaintiffs’ reliance on [68(b)(ii)] in support of the pleading of the first element of an unlawful means conspiracy, it pleads allegations as to how the agreement was to be carried out, not what was originally agreed. It is not sufficient to plead an agreement was put into effect by engaging in unlawful acts premised on an intention to injure the plaintiffs without pleading the agreement which was being put into effect. While sub-paragraphs (F), (G), (J) and (K) to [68(b)(ii)] do plead an allegation which supports the carrying into effect of the agreement pleaded in [67(a)], namely the procuring of employees or contractors to breach their contractual duty of confidence to the plaintiffs, the remaining allegations in [68(b)(ii)] do not, on their face, relate to the agreement pleaded in [67(a)] of the FASOC. It is not apparent whether the plaintiffs’ case is that the alleged agreement to disclose confidential information to the defendant was for use by the parties to target contractors and  trespass onto their property or to interfere with the use of their land so as to commit the tort of nuisance or to use the disclosed confidential information to target contractors and threaten them unless they withdrew from negotiations or contracts with the plaintiffs or whether the actions against the targeted contractors pleaded to be unlawful means are independent of any agreement to procure persons to disclose confidential information to them. If that is the case, there is no agreement to engage in conduct amounting to unlawful means which has been pleaded. While Mr Gibson KC contends that the agreement pleaded in [67], and particularly [67(c)], just relates to the agreement and the character of that agreement as lawful or one to engage in conduct amounting to unlawful means, the pleading must identify the agreement to engage in conduct amounting to unlawful means. The way in which [68(b)(ii)] inter-relates with [67], and whether those matters are part of what is said to have been agreed or not, is opaque. Given the serious nature of the allegations, that is deficient.
  4. [33]
    The same complaint is made by the defendant in relation to the Information Conspiracy.[13] The same difficulties largely affect the pleading of the first element of conspiracy. The agreement pleaded in [78] does not make any distinction between the agreement for a lawful means conspiracy and the agreement to engage in conduct amounting to unlawful means. It refers to an agreement with the persons who disclosed some or all of the Information to be used by the persons associated with the Galilee Blockade to facilitate Direct Action against the plaintiffs and Targeted Contractors, pressure the Targeted Contractors to withdraw from contracts or negotiations with the Plaintiffs and otherwise cease to perform any of the plaintiffs’ work and frustrate the development of the Carmichael Mine and Rail Network. “Information” is defined in [43(b)] of the FASOC to be types of information which includes “Adani Confidential Information” and “Carmichael Rail Information”, which is not found to be confidential. “Direct Action” is defined in [41(c)] of the FASOC and includes actions which may or may not be unlawful. While the particulars in [78(b)] do plead matters from which an agreement may be inferred, they do not particularise what the unlawful means are that form part of any agreement to satisfy the first element of an unlawful means conspiracy.
  5. [34]
    As to [79(b)(ii)], it does appear to narrow the unlawful means that are being relied upon, save that Direct Action is not necessarily conduct amounting to unlawful means although it could include that. It also suffers from the same deficiency as [68] in referring to the purpose “to be carried out by Direct Action against the Targeted Contractors by unlawful means” which appears to be focussed on the implementation of what was pleaded in [78] as being agreed, rather than being part of the agreement itself. As submitted by the plaintiffs, given [78] is only referring to the disclosure of Information, which is not on its face unlawful, it is not the providing of the Information which is the unlawful thing to be done. Rather, what must be the subject of the agreement is what is agreed to be done with the Information that is unlawful. Paragraph [78] does not go far enough and [79(b)(ii)] does not fill the gap. The pleading of what is the subject of the agreement to engage in conduct to use unlawful means must be made clear.
  6. [35]
    In the course of oral submissions, the defendant contended that the fact that the agreement in relation to the Galilee Blockade Conspiracy is pleaded in [67] as having been made between June 2017 and mid-September 2020 adds to the ambiguity of the pleading. That is even more pronounced when one has regard to the fact that sub-paragraph (b)(iv) of the particulars to [67(c)] provides that the agreement or understanding is to be inferred from representations made in January 2015. Mr Gibson KC submitted that the matter could be remedied by adding the words “or agreements or understandings” and accepted there might be different agreements at different points in time. He further submitted that, given the defendant was the constant party to any agreement, it doesn’t matter if there are a number of agreements nor does the identity of the parties matter. That cannot be accepted insofar as, to have a meeting of minds and to have an agreement, you must at least identify who it is, even if not by name, that the meeting of minds is with even if, as in this case, it is by inference. The identity of the other parties would arguably have a flow-on effect as to whether the agreement was in fact carried into effect. At least, the particulars in [67] suggest that the other parties to the agreement are people involved in the Galilee Blockade. Proper consideration of the agreement and whether it is singular or there are a number of them needs to be given any repleading of the claim.
  7. [36]
    Although it is evident from the pleading in [78] that the other parties to the agreement for the purpose of the conspiracy are those who agreed to provide Information to the defendant through the Galilee Blockade, which is pleaded to occur over June 2017 up until mid-September 2020, the form of allegation is different insofar as it pleads “at various times” and, from the form of the pleading, alleges a new agreement with each person who agreed to or did provide information.
  8. [37]
    The complaint as to the FASOC failing to adequately plead the element of the agreement for an unlawful means conspiracy, insofar as it doesn’t plead the agreement to employ unlawful means, is established.

Pleading of Purpose of the Agreement

  1. [38]
    The second complaint made by the defendant is that the pleading is deficient because, for both the lawful and unlawful means conspiracies, there is no allegation that the alleged conspirators all shared a common intention.  For lawful means conspiracy, the intention to injure must be the sole or dominant purpose of the conspiracy.  As for unlawful means conspiracy, the intention to injure must be one of the purposes of the conspiracy.
  2. [39]
    The defendant complains that the pleading does not particularise the state of mind required, namely the purpose. He also contends that there is a disconnect in the pleading insofar as, assuming the particulars relied upon for “sole or predominant purpose” to injure the plaintiffs are also the various matters in the particulars of [68], the acts could be for the purpose of reducing climate change rather than injuring the plaintiffs.
  3. [40]
    The plaintiffs contend that, while the words “common intention” were not specifically used, they were not required to be.  Bond J in Lee v Abedian stated that “[b]oth torts require the plaintiff to prove that a purpose of the conspiracy was to injure the plaintiff.  For a lawful means conspiracy, however, the plaintiff must prove that the purpose of injuring the plaintiff was the sole or predominate purpose of the conspiracy”.[14]  However, in the case of an unlawful means conspiracy, “it will suffice for a plaintiff to prove that causing injury to the plaintiff was a purpose of the conspiracy”.[15]
  4. [41]
    The relevant purpose for the lawful means conspiracy and unlawful means conspiracy is pleaded to be that of the “Galilee Blockade Conspiracy” rather than being pleaded by reference the purpose of the defendant and the “Unknown Conspirators”. While it is a confusing way to plead the allegation, it is not the subject of specific complaint by the defendant and the meaning of the allegation is clear enough that it is, as the plaintiffs clarified, referring to the agreement pleaded in [67] even though it is not defined as such.
  5. [42]
    As to the matters relied upon for the relevant purpose to be inferred, the plaintiffs’ particulars of [68(a)] include cross-references to various threats and demands and representations pleaded in [60]. Neither party went through each of the matters relied upon in any detail, however, each gave examples in support of their contention. At least some of those statements pleaded in [60] are sufficient to raise an inference of intent or desire to specifically injure the plaintiffs. There is an arguable inference that the intent was to injure Adani and the Carmichael Mine, albeit through preventing them from being able to undertake work in relation to the mine or the associated rail network,[16] rather than to injure mines more generally or to prevent climate change with the knowledge it might injure either of the plaintiffs.  I consider that they are capable of supporting the purpose pleaded. Whether the plaintiffs will be successful in proving it at trial is another matter. It may be that, as the defendant contends, when evidence is presented, the court will find that the purpose of the defendant and persons said to be involved in the conspiracy is no more than an intent to stop mines as part of a campaign to reduce anthropogenic climate change, even if they had knowledge their actions would injure the plaintiffs. In which case, the plaintiffs will not succeed.[17] However, that will be a matter for trial. I do not think that the pleading is deficient in its current form as to the purpose contended for by the defendant such that it should be struck out.
  6. [43]
    However, to the extent the same particulars are to be relied on as to whether the conspiracy was entered into for the “sole or predominant purpose” required to be established for lawful means conspiracy and “a purpose” required to be established for unlawful means conspiracy, the pleading should be amended to make that clear, as presently no particulars are provided for [68(b)(i)] of the FASOC.
  7. [44]
    As to the Information Conspiracy in [79], that was not addressed in any detail although the same complaint is made as to the absence of pleading “common intention”. The pleading is in the same form as [68] and, while the form is clumsy, I do not find it is deficient such that it should be struck out for the same reasons as above.

Pleading of Causation and Loss

  1. [45]
    The final complaint in the written submissions of the defendant is that causation is pleaded in [69] and [73] of the FASOC in a rolled up fashion with the implementation of each type of conspiracy, both lawful means conspiracy and unlawful means conspiracy, and the loss and damage which it is alleged the plaintiffs suffered by reason of such implementation.  Fundamentally, the defendant contends that the plaintiffs do not plead that the loss and damage allegedly caused by the unlawful means conspiracy was caused by the alleged unlawful acts and, similarly, that the plaintiffs do not plead that the loss and damage allegedly caused by the lawful means formulation of each conspiracy was caused by the carrying of the agreement into effect.  The pleading combines the loss and damage for both types of conspiracies, with the plaintiffs relying upon both the lawful and unlawful conduct as being causal of the alleged loss.  According to the defendant, having regard to the dicta of Bond J in Lee v Abedian, the rolled-up pleading of causation is inadequate, embarrassing and liable to be struck out.  The defendant contends that the plaintiffs’ tortious conspiracy pleadings in the FASOC are affected by the same vice identified by Bond J in Lee v Abedian, namely that the pleading “does not clearly distinguish between the two torts and this failure creates many difficulties, not least of which is for the defendants in understanding which facts are relied upon in support of which cause of action”.[18]
  1. [46]
    In oral submissions, however, Mr Hodge KC complained further in relation to the form of pleading in [69] insofar as it pleads “Pennings, with the agreement or understanding of the Unknown Conspirators, engaged in conduct pleaded in paragraph 41 to 45 and 60 above”. While it is pleaded to be “[i]n furtherance of the Galilee Blockade Conspiracy”, the defendant contends that the language of the pleading suggests that there is a different agreement from that pleaded earlier in [67] and [68]. The further difficulty goes to the temporal element complained of in relation to [67] because conduct said to be in furtherance of the conspiracy occurred at the same time as the conspiracy was said to arise. This is apparent from [41], which relies on statements between January 2017 and mid-September 2020. Similarly, [42] refers to conduct in the period January 2017 until June 2018 as part of the Infiltration Campaign, while [43] and [45] refer to the period between June 2017 and mid-September 2020, but also refer to requests for Confidential Information and Information. The defendant contends that suggests an infinite number of conspiracies came into existence over those periods and an infinite number of possibilities as to causation.
  2. [47]
    As to [69(b)], which pleads that  “Pennings and the Unknown Conspirators engaged in the conduct pleaded in paragraphs 62 to 62B above”, the defendant contends that the pleading creates a number of difficulties. First, the cross-reference to [62] refers to a number of acts which are said to be “[i]n accordance with the Threats”, which refers to matters pleaded earlier in the tortious intimidation case, not the Galilee Blockade Conspiracy case. Paragraphs [62A] and [62B] delineate certain conduct as being unlawful because it constituted the torts of trespass and nuisance respectively, rather than being acts carried out “[i]n furtherance of the Galilee Blockade Conspiracy”.
  3. [48]
    The pleading of causation and loss is made in [73], whereby it is alleged that by the matters pleaded in [67] to [69]:
    1. the Galilee Blockade Conspiracy was executed in whole or in part;
    2. Adani has suffered loss and damage; and
    3. Carmichael Rail has suffered loss and damage.
  1. [49]
    The alleged loss and damage relies upon the matters pleaded in [63] and [66] in respect of Adani and [65] in respect of Carmichael Rail. No distinction is made between lawful conspiracy and unlawful conspiracy. 
  1. [50]
    The plaintiffs contend that the same factual foundation is relied upon to advance each type of conspiracy and that the different elements become relevant only when the court decides whether the conspiracy that is proved it is a lawful or unlawful conspiracy.  According to the plaintiffs, there is an obvious distinction between the alternative formulations of the conspiracy.  As an alternative to the intimidation case, the defendant, together with his co-conspirators as part of the Galilee Blockade, is said to have engaged in the conduct pleaded in [62] which was unlawful as pleaded in [62A] and [62B] of the FASOC.  By reason of that conduct, the plaintiffs have suffered loss and damage as pleaded in [73], which relies on [63] to [66] of the FASOC.  The plaintiffs contend that, unlike the case in Lee v Abedian, the material facts relied on to show the necessary causally relationship are clearly identified and the same material facts are relied on to justify each of the lawful and unlawful conspiracy cases.  The plaintiffs contend the difference between them is the degree of proof requirement and their discrete elements but not the factual foundation. 
  1. [51]
    As to the question of causation, the defendant complains that the pleading of causation for both lawful means conspiracy and unlawful means conspiracy are bundled together and the same pleading method has been used for loss and damage. In the case of lawful means conspiracy, the pleading must plead that the agreement or understanding has been carried into effect by the defendant’s conduct and that conduct caused the loss and damage to the plaintiffs. In the case of unlawful means conspiracy, what is required to be pleaded is that the agreement or understanding was carried into effect by the agreed unlawful acts and those unlawful acts caused loss or damage to the plaintiff.  As Bond J discussed in Lee v Abedian, the latter is more onerous than the former.[19]
  2. [52]
    The plaintiffs contend that they have not failed to distinguish between lawful and unlawful conduct and mixed the two together in pleading causation and loss and damage.  Rather, their contention is that they have pleaded conduct and not characterised it as lawful or unlawful, which will be a matter for the court at the end of the day.  The difficulty with the contention by the plaintiffs is that they are acting on the basis that, at the end of the trial, it is for the court to determine what is lawful and unlawful when there is not a clear delineation between the two in the pleading. For instance,  [69(a)] relies on [43] which refers to conduct in the “Dob In” campaign which involved both the procuring of Confidential Information[20] and Information.[21]  Paragraph [69(b)], however, refers to conduct which is defined as being unlawful conduct by virtue of the fact it constituted trespass or nuisance.  It is not a matter of simply a different degree of proof. It requires the identification of those acts carried into effect by the commission of agreed unlawful acts as part of an unlawful means conspiracy. Plainly, what is pleaded in [67(b)], which is the procuring of Information as opposed to Confidential Information, is not unlawful.
  3. [53]
    It is not pleaded in [69] that the acts referred to in sub-paragraphs (a) or (b) were those that were part of the agreement or understanding pleaded in [67], nor can one relate them back to what is pleaded in [67] or [68] because it cross-refers to different conduct which is relied upon and [69(a)] appears to raise a different agreement. Moreover, the acts relied upon in [69(a)] combine acts which are lawful and arguably unlawful.  It is confused and embarrassing. It is simply not an answer for the plaintiffs to say that [69] is just pleading what was done to give effect to the conspiracy when it is not apparent on the face of the pleading that it relies on conduct giving effect to what is pleaded as being part of the agreement or that the agreement was carried into effect by the agreed unlawful acts. The acts relied upon in [69] are, at least on their face, different acts from those pleaded in [68], even if one accepts those were part of the pleaded agreement.
  4. [54]
    Causation and loss is pleaded globally in [73] for both lawful and unlawful means conspiracy. While it is said that the same factual underpinning is relied upon for each conspiracy, the more onerous requirements for unlawful means conspiracy requires those agreed acts said to amount to unlawful means to be identified, not only for the purpose of the agreement but for the purpose of the agreement being said to be carried into effect by the commission of the unlawful acts and those unlawful acts causing damage to the plaintiffs. It cannot be left to the end of the trial.
  5. [55]
    As was said by Bond J in Lee v Abedian, for unlawful means conspiracy what is required is:
    1. “a specific identification of the material facts relied on to show the necessary causal relationship between the agreed unlawful conduct and the loss and damage claimed”;[22] and 
    2. “the necessary causal relationship is the conspiracy was carried into effect by commission of the agreed unlawful acts and those agreed unlawful acts caused damage to the plaintiff”.[23]
  6. [56]
    The separate requirements for pleading causation and loss in relation to lawful conspiracy have been identified above in the discussion of Lee v Abedian. As Bond J discussed in Lee v Abedian, it is one of the key points of distinction between the two types of conspiracy.[24]
  7. [57]
    While it is open to the plaintiffs to plead alternative cases, what is not permissible is to plead the acts and loss and damage together such that it is impossible to disentangle what are said to be agreed unlawful acts relied upon and how they cause the plaintiffs loss and damage.  The distinct elements necessary to constitute the respective torts must be clearly defined and pleaded. As it stands, the pleading is confused and deficient and should be struck out.
  8. [58]
    The pleading as to causation and damage fails to properly plead the respective cases for lawful means conspiracy and unlawful means conspiracy and is so deficient that it does not presently disclose a reasonable cause of action and would prejudice any trial such that it should be struck out.
  9. [59]
    Further ambiguity is created by the pleading that the agreement and the conduct said to be furtherance of the conspiracy traverses an extended period of time, where there are acts relied upon to carry the agreement into effect which occur at the same time the agreement is said to have arisen. Given the extended period of time, and the possibility of numerous conspiracy agreements, causation is ill-defined and leaves the defendant in a position of having to face a number of different possibilities which are not articulated on the pleading. As was also said by Bond J in Lee v Abedian:[25]

“The defendants are entitled to have the plaintiff pinned down to a causation hypothesis which is not characterised by imprecision and ambiguity and which, at least arguably, establishes the requisite causal connection between the implementation of the conspiracy and the suffering of loss. If there is more than one causation hypothesis, then the statement just made must apply to each one.”

  1. [60]
    Although damages are not claimed in relation to the Information Conspiracy, the pleading still must plead the material facts to constitute a reasonable cause of action. It suffers the same ill of not separating causation in terms of causation and potential loss that will be suffered for lawful conspiracy or unlawful means conspiracy in [80] to [82] such that those allegations should be struck out.
  2. [61]
    It is of course true, as the plaintiffs submit, the present case turns on its own facts and that dictates what must be pleaded. However, to the extent that reliance is placed on Lee v Abedian, it is by reference to principles and what are elemental pleading requirements. While the plaintiffs contend, in this case, it is a matter of characterising the same facts as either lawful or unlawful, rather than a mixture of lawful and unlawful conduct as in Lee v Abedian, the relevant elements have not been articulated for each type of conspiracy. While the same facts can be relied upon to satisfy the lawful means conspiracy and unlawful means conspiracy, the pleading fails to adequately identify the relevant elements by reference to those facts.
  3. [62]
    Even though the defendant has pleaded to the allegations of conspiracy in his Amended Defence in relation to the previous statement of claim, it is evident that, until the pleading does plead each element of lawful means conspiracy and unlawful means conspiracy with sufficient specificity, it will prejudice the trial. 
  4. [63]
    The defendant is entitled to have the plaintiffs identify what were the agreed unlawful means, how those unlawful means were carried into effect by unlawful acts and how those unlawful acts caused loss and damage.  As was stated by Bond J in Lee v Abedian, what is required for a proper pleading is that there is specific identification of the material facts relied on to show the necessary causal relationship between the agreed unlawful conduct and the loss and damage claimed.[26]
  5. [64]
    Notwithstanding the urging of the defendant, I am not persuaded the plaintiffs cannot properly plead an unlawful means or lawful conspiracy case. This is the first time that complaints in relation to the pleading of the claim have been raised by the defendant, notwithstanding the claim has existed in some form in the statement of claim since the proceedings were instituted. The defendant pleaded to the case of conspiracy in his Amended Defence even though the pleading of conspiracy was largely affected by the deficiencies of which the defendant now complains. It is not evident that the case of conspiracy sought to be relied upon by the plaintiff is so deficient that the plaintiffs cannot adequately plead a case. Many of the complaints arise out of the manner in which the claim has been pleaded in what is a very technical claim. Notwithstanding I did not consider the pleading of purpose was such that the pleading should be struck out, given the deficiencies I have found in relation to the pleading of agreement, the carrying into effect of the agreement and the pleading as to causation and damage, all of which are so deficient as to justify the strike out of the pleading, I will strike out the whole of Galilee Blockade Conspiracy and Information Conspiracy pleadings and give liberty to replead.

Abandoning Confidential Information Conspiracies Case

  1. [65]
    The defendant complains that the abandoning of the Confidential Information Conspiracy claim without little explanation demonstrates that the viability of the allegations hinged upon the plaintiffs obtaining through disclosure evidence of the alleged conspiracies having occurred. They contend that this suggests that:
    1. at the time these allegations were pleaded, the plaintiffs did not have available to them a sufficient evidentiary foundation for making and proceeding upon these allegations; and
    2. the plaintiffs nonetheless decided to include these allegations in their pleading on the basis that the inclusion of the allegations would enable the plaintiffs to use the compulsory processes of disclosure to investigate whether these allegations were supported by a sufficient evidentiary basis.
  2. [66]
    In his written submissions, the defendant contended that these features of the plaintiffs’ conduct “heighten the concern that the plaintiffs’ commencement and pursuit of this proceeding against the defendant involves an abuse of process”. I will consider this further below.

Intimidation

  1. [67]
    The plaintiffs plead that the defendant has engaged in intimidation such that he is liable to pay damages for the tort of intimidation.  The relevant paragraphs of the pleading are at [60] to [66A] of the FASOC. 
  2. [68]
    By way of overview, the pleaded allegations are that:
    1. between January 2017 and mid-September 2020, the defendant published statements through various mediums to the effect that, “unless the Targeted Contractors cease to withdraw from contracts (sic) or negotiations or otherwise cease to perform any of the Plaintiffs’ Work”, which is defined as “Demands”, “the Targeted Contractors would be the subject of Direct Action by persons associated with the Galilee Blockade” which is defined as “Threats”;[27]
    2. the defendant’s conduct in publishing and communicating each of the Demands and Threats was done with the intention of injuring the plaintiffs;
    3. in accordance with the threats, protesters obstructed access to various sites associated with Targeted Contractors;
    4. the conduct as particularised was unjustified entry on to the said Targeted Contractors’ land, which constituted the tort of trespass and was unlawful;
    5. the conduct as particularised was an unreasonable and substantial interference with the said Targeted Contractors’ enjoyment of their land, which constituted the tort of nuisance and was unlawful;
    6. as a result of the Demands and Threats, targeted contractors have not undertaken negotiations or have terminated negotiations with the plaintiffs and their contractors, who are particularised as being Downer and Greyhound;
    7. it is alleged as a result of the pleaded conduct that both plaintiffs have suffered loss and damage; and
    8. it is further alleged that, unless restrained, the defendant will continue to make threats against Targeted Contractors if they do not accede to his demands and the plaintiffs will suffer loss.
  3. [69]
    The defendant complains that the pleading is deficient and should be struck out.
  4. [70]
    The elements of the cause of action for tortious intimidation relevant to the present case are that:
    1. the defendant intends to injure the plaintiffs;
    2. in order to do so, the defendant threatens a third party that an unlawful act will be committed against them unless they refrain from dealing with the plaintiffs;
    3. the third party was induced by the threat or demand to refrain from exercising its legal rights to deal with the plaintiffs; and
    4. the plaintiffs have suffered loss because of the third parties’ conduct in refraining from dealing with the plaintiffs.[28]
  5. [71]
    In the case of injunctive relief, it is not necessary that the person threatened submitted to coercion.[29] 
  6. [72]
    The defendant complains that the pleading is deficient in three different ways:
    1. first, that the FASOC does not disclose a clear and coherent pleading of causation necessary to support a cause of action in tortious intimidation; 
    2. secondly, some aspects of the plaintiffs’ claimed loss are vexatious, harassing and comprise an abuse of process; and
    3. thirdly, the FASOC pleads irrelevant matters, raises false issues and is apt to be struck out as unnecessary, frivolous, prejudicial or delaying. 

Causation

  1. [73]
    The defendant contends that the plaintiffs are required to prove two levels of causation:
    1. the plaintiffs must show that the defendant’s demand and threat caused the third parties’ decision to refrain from dealing with the plaintiffs; and
    2. the plaintiffs must show that the claimed loss was caused by the third parties’ conduct in refraining from dealing with the plaintiffs because of the defendant’s demand and threat.
  2. [74]
    The plaintiffs submit the defendant’s complaint is a technical one that can be addressed by removal of the reference to [62] from [65] of the FASOC and that their case as to causation is:
    1. that demands were made that targeted contractors cease dealings with the plaintiffs;
    2. the threats made were to engage in unlawful conduct, which is evidenced by the unlawful acts of direct action pleaded in [62] of the FASOC; and
    3. because of the threats and demands, as pleaded in [63], targeted contractors have ceased negotiations with the plaintiffs.
  3. [75]
    Paragraph [63] of the FASOC particularises Downer and Greyhound as those targeted contractors who have not undertaken negotiations or who have terminated their negotiations with the plaintiffs or their contractors in response to and because of the Threats and Demands pleaded in [60] of the FASOC.
  4. [76]
    Paragraph [65] pleads that Carmichael Rail has suffered loss and damage by reason of Greyhound’s cessation of negotiations with the company responsible for construction of earthworks and structures for the rail network, BMD, and that under Carmichael Rail’s contract with BMD, Carmichael Rail was responsible for the additional costs incurred by BMD for having to negotiate and engage with a different entity. That loss is quantified at $37,579.30.
  5. [77]
    Paragraph [66] pleads that by reason of Downer’s cessation of negotiations in November 2017, Adani had to undergo a second tender process to identify and engage a suitable alternative drilling contractor which is estimated to have resulted in a loss of $17,450,674.00. The defendant contends that, because the plaintiffs rely not only on the Threats and Demands pleaded in [60] and the alleged decisions by Greyhound and Downer to terminate negotiations with BMD and Adani in [63] but also the Direct Action itself said to have been taken in accordance with the Threats pleaded in [62] of the FASOC, the latter is “destructive of the second level of causation”. That is because the loss is alleged to have been caused by a combination of the alleged Threats and Demands and the decision by Greyhound and Downer to terminate negotiations, as well as the conduct of protesters said to have been carried out in accordance with the Threats. As the plaintiffs plead they are all, in combination, causative of the loss suffered by the plaintiffs, that, according to the defendant, has the effect of negativing the existence of the second essential element of causation, namely that the loss was caused by Demands and Threats and the refraining from negotiations as a result of those Demands or Threats.
  6. [78]
    The plaintiffs contend that the reliance on Direct Action in [62] of the FASOC is because it is relevant to the view reached by Targeted Contractors that the defendant and Galilee Blockade was serious about their threats and the likelihood that further threats would be carried out if demands weren’t met.  They contend, even if the court were to accept the defendant’s complaint, it would simply be a matter of removing the reference to [62] from [65] of the FASOC given none of the conduct in [62] involves Greyhound. At the hearing they contended however that the conduct in [62] with respect to Downer is relied upon as part of the causal chain.
  7. [79]
    The plaintiffs contend, however, that the taking of action consistent with the Threats and Demands made is relevant to the injunctive relief sought.  Paragraph [62] is relied on in the pleading to support injunctive relief in [66A(a)(ii)] of the FASOC.
  8. [80]
    Direct action taken by the Galilee Blockade prior to the making of Threats and Demands by the Defendant could be evidence which supports a third party being induced by those Threats and Demands to refrain from further negotiations with the plaintiffs. While it may be possible to frame a case by reference to such conduct in a temporal sense, that has not been done here. Most of the events pleaded in [62] in fact occurred after the time Downer had stated it was withdrawing from negotiations and are therefore irrelevant in any event. The further difficulty with [62] is that it refers to actions in which the defendant is not involved and there is no basis of attribution in the pleading.
  9. [81]
    The relevant causal link required in terms of loss is to the ceasing of negotiations by Downer because of Threats and Demands made. The plaintiffs in their submissions have only sought to identify the evidential relevance of the matters pleaded in [62] and not identify how they are relevant to the causation of loss, although Mr Gibson KC in his oral submissions contemplated that the Demands and Threats were the basis of the protester activity pleaded in [62] although it has not been particularised in that way. The reference to [62] in [65] is therefore irrelevant to causation and the pleading is embarrassing. The reference to [62] should be struck out in [65]. That is also relevant to the reference in [66]. Given the other difficulties I have identified in relation to [63] it would be appropriate to strike out the whole of [65] and [66] with liberty to replead.

Whether the plaintiffs’ claim for loss is vexatious, harassing and manifestly groundless

  1. [82]
    The defendant complains that there are features of the plaintiffs’ claimed loss from which it can be inferred that the plaintiffs’ pleading and pursuit of this claim for tortious intimidation is vexatious, harassing and represents an abuse of process.
  2. [83]
    While the defendant does not seek summary judgment, it has raised a number of evidential weaknesses in the plaintiffs’ case which it contends are relevant to demonstrating the claim is an abuse of process or vexatious.
  3. [84]
    In that respect, the defendant relies upon the decision of Jackson J in Parbery v QNI Metals Pty Ltd and his Honour’s discussion about the scope of r 171 of the UCPR, where his Honour stated the court is not disentitled from examining the cause of action for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious.[30] In particular, the court is not excluded from an examination of evidence relevant to the cause of action, which may still be looked at by the court for the purposes a strikeout action, notwithstanding the provisions with respect to summary judgment.  In particular, his Honour noted the wider statutory context of r 171 and its relationship with r 5 of the UCPR.
  4. [85]
    As to the allegation that Greyhound terminated its negotiations with BMD because of the Demands and Threats made, as pleaded in [63] of the FASOC, the defendant contends that:
    1. A letter of 28 January 2020, relied upon by the plaintiffs, does not support the allegation made. The letter of 28 January 2020 from Greyhound to BMD, referred to in sub-paragraph (d) of the particulars, identifies an article in the Guardian Australia about Greyhound’s involvement in the Carmichael Mine and states that “Subsequent media reports and a significant social media response have had an adverse impact on the consumer retail part of our business and have impacted the perception of the Greyhound brand in the market”.[31] The letter stated that, as a result, Greyhound was suspending negotiations with BMD.
    2. A Greyhound media release dated 28 January 2020, relied upon in sub-paragraph (e) of the particulars, does not support the allegation made. That article referred to Greyhound having received numerous messages in relation to peoples’ thoughts “both for and against the Carmichael Rail Network and Adani Carmichael project” and that Greyhound had “decided to not enter into a contractual agreement with BMD to service construction of the Carmichael Rail Network”.[32] 
    3. In [63(i)(iv)], the Demands and Threats which are pleaded as having led Greyhound to terminate negotiations with BMD included a letter sent from Galilee Blockade to Greyhound on or about 23 January 2020 of the kind pleaded in sub-paragraph (f) of the particulars to [60], which is a letter requesting the Targeted Contractor to withdraw from inter alia any proposed contractual relationship with the plaintiffs and further providing that the Targeted Contractor would be subject to Direct Action on their worksites, with such action escalating over time, until the Targeted Contractor made the commitment never to assist in the construction of the mine or rail network. The further matter relied upon in [63(i)(iv)] was a social media post to the Galilee Blockade webpages headed “BREAKING: GREYHOUND IS NOW WORKING ON ADANI’S CLIMATE-WRECKING COAL PROJECT” posted on or about 24 January 2020, which is not pleaded as one of the Demands or Threats made in [60] of the FASOC.
    4. The amount of loss claimed in respect of Greyhound, which is said to be $37,579.30, “is so insignificant that it could not rationally justify the ongoing pursuit of this litigation”.
  5. [86]
    The defendant contends that the inconsistency on the face of the FASOC is sufficient to strike out the pleading because it is embarrassing.  While he submits that it is difficult to see how it can be rectified in light of the Greyhound correspondence and media release as to the reasons for withdrawal, it was not submitted that it was incapable of being fixed.
  6. [87]
    As to the pleading that Downer terminated its negotiations with Adani because of the Demands and Threats pleaded in [63] of the FASOC, the parties made a number of contentions:
  1. (a)
    Sub-paragraph (b) of the particulars to [63] pleads that Downer advised in November 2017 that it was withdrawing from negotiations and would not enter into a mining services agreement with Adani. The defendant, however, identifies various public statements by Adani which are said to be directly inconsistent with the allegation that the negotiations were cancelled  by Downer and which attribute other reasons to the cancellation, including a press release made on 18 December 2017 that:[33]
  1. “… Following on from the NAIF veto last week, and in line with its vision to achieve the lowest quartile cost of production by ensuring flexibility and efficiencies in the supply chain, Adani has decided to develop and operate the mine on an owner operator basis.
  1. Adani and Downer have mutually agreed to cancel all letter of Awards and Downer will provide transitional assistance until 31st  March 2018. …”
  1. (b)
    Affidavit evidence was provided by the solicitors for the plaintiffs, Mr Wilson and Mr Dowd, which depose to conversations with Mr Vora, the Chair of Adani, and Mr Harding, a former director of Downer. Mr Vora stated to Mr Wilson on 30 October 2023 that the CEO of Downer had informed him at a meeting in November 2017 words to the effect that Downer would not be proceeding with any further negotiations because its “association with Adani” was “causing it to be targeted by protesters…”.[34] Mr Wilson deposed to Mr Vora having explained to him that the media release of 18 December 2017 was made “to deflect public attention from the Downer withdrawal”.[35] The defendant submits the notion that a media release would have been issued stating a reason contrary to the real reason for Downer’s withdrawal lacks credibility. The defendant is also critical of the fact that Mr Vora’s evidence is hearsay and that these matters weren’t disclosed before Martin J in the hearing of the interlocutory injunction.
  1. (c)
    Mr Dowd deposed to an exchange between Mr Harding and himself as to Downer’s position. Mr Harding referred to annual general meeting of Downer having been stormed by protesters, who threatened board members, and that after the AGM, the board had meetings to consider the impact on Downer of continuing its business with Adani. He stated “[the protesters] were threatening to shut down BHP sites if we didn’t agree to cease dealings with Adani”.[36] He stated that it was a big issue at the time. Minutes of the board meetings were taken and at those board meetings “no one was in favour of proceeding with Adani”.[37] The defendant submits that it is telling that Mr Dowd, who spoke with a board member, does not depose as to a belief that what was said to him was true. The defendant further submits that Mr Harding’s recollection of the meeting is not supported by a video recording taken and that there was a lack of disclosure of any documents supporting the board meetings and the suggestion that minutes were taken.
  1. (d)
    The defendant submits that, despite the plaintiffs having sought non-party disclosure in 2022, there were no documents which disclosed that the basis of Downer’s decision to withdraw from negotiations with Adani was due to protester activity. The defendant also contends that it is only in Mr Wilson’s affidavit of 26 October 2023 that he deposes as to his firm’s dealings with Downer not having finalised and that counsel had been instructed to review the adequacy of Downer’s disclosure. Mr Wilson did not provide any explanation as to why this has not been undertaken much earlier.
  1. (e)
    The defendant points to the fact that no document has been disclosed by Adani in support of the contention that Downer’s withdrawal was due to Demands and Threats by the Galilee Blockade protesters.
  1. (f)
    Paragraph [63(h)(iii)] of the FASOC identifies the Demands and Threats that led to Downer terminating negotiations with Adani as being those contained in webpages and articles particularised in [60], namely sub-paragraphs (a)(i), (a)(xi), (a)(xii), (c) and (e). The first point made by the defendant is that no material facts are pleaded to support an inference as to Downer’s state of mind. There is no allegation that Downer read the relevant material contained in the websites or articles as to what the defendant said to journalists. There is also a disconnect in terms of time, which is not necessarily fatal where the relevant Demands and Threats are said to have occurred between January and March 2017, whereas the withdrawal from negotiations by Downer did not take place until November 2017. The defendant submits that the plaintiffs cannot plead facts from which such an inference could be drawn because the evidence outlined above cannot support it and that, as put by Mr Hodge KC in oral submissions, “the universe of evidence they do have is directly inconsistent with what they plead”. The evidence the plaintiffs do have, which is the evidence from conversations with Mr Vora and Mr Harding, do not support any connection between those Demands and Threats relied upon in the FASOC and the decision to terminate.  Rather, they reference protester activity against Downer as being the reason for the withdrawal. 
  1. [88]
    According to the defendant, the evidence of the plaintiffs, given through Mr Wilson and Mr Dowd, is unsatisfactory and supports a view that there is no reasonable basis to believe that the media release in December 2017 as to the basis upon which negotiations were cancelled was untrue. It asserted that the fact the application was interlocutory is not a sufficient explanation for the scant state of the evidence and, in that respect, relied upon the statements of Derrington J in Jonker v Thomas International Ltd that:[38]

“[27]

It can be accepted that where the question is whether the pleading discloses a reasonable cause of action or defence, the Court need only consider the allegations in the pleading… That is because on an application of that nature, which concerns whether the pleading can succeed as a matter of law, the Court assumes the truth of the allegations made and draws all the necessary inferences in favour of the non-moving party. That approach does not apply where the question is whether the pleading is likely to cause prejudice, embarrassment or delay in the proceedings or might otherwise be an abuse of process.

[28]

On an application such as the present, it does not appear that the material which the court might consider is as limited as Counsel for Thomas International suggests. Where it is alleged that all that the party’s pleading has done is to make allegations which are wholly without substance and unable to be particularised, it would be an odd thing if, on an application to strike out the pleading (or on the usual cross-application for discovery before particulars are provided), the non-moving party were unable to adduce evidence of the existence of a good cause of action or defence. In such situations the party defending the application to strike out (or seeking to obtain discovery prior to providing particulars) ought to adduce what evidence it can to indicate that it has or, perhaps, believes that it has, a good cause of action or defence as the case may be…” (in-text citations omitted).

  1. [89]
    In cross-examination Mr Dowd deposed to some attempted communications after his discussion with Mr Harding through Mr Regan, a solicitor at Downer, but that he could not pursue those communications because Downer appointed Corrs Chambers Westgarth to act on their behalf. No attempts have been made by his firm to communicate with Corrs Chambers Westgarth, but he is aware that the General Counsel of Adani, Mr Napa, had attempted to contact Mr Regan in the later months of 2023.
  1. [90]
    The defendant contends that, even if the evidence is sufficient to contradict the media release of December 2017 for the purpose of this application and there is a basis for the plaintiffs having or believing they have a proper basis for pleading that the negotiations with Downer were terminated by Downer because of the events of Direct Action, the allegation does not support the plaintiffs’ pleaded case because:  
    1. the Demands and Threats particularised in sub-paragraphs (a)(i), (a)(xi), (a)(xii), (c) and (e) of the particulars to [60] of the FASOC, which are said to have caused Downer to terminate its negotiations, predated the time Downer withdrew, being between January and March in 2017;
    2. the plaintiffs do not plead that Direct Action, including the storming of Downer’s AGM, was the cause of negotiations being terminated;
    3. no mention is made in any of the matters pleaded to any connection between protester activity at Downer’s AGM and their withdrawal, as addressed at least in part by Mr Harding;
    4. in the disclosure made by the plaintiffs, which include non-party disclosure that Adani had obtained from Downer, none of the disclosure documents suggest that the withdrawal by Downer was due to protester activity undertaken by the Galilee Blockade and/or the defendant; and
    5. the loss suffered pleaded in [65] and [66] is not attributed to, amongst other things, the Threats and Demands made by the defendant and the protester activity.
  2. [91]
    According to the defendant, the pleading in relation to Downer’s conduct is embarrassing and an abuse of process because there’s no rational basis upon which they could say that Downer had withdrawn based on the things that have been particularised.
  3. [92]
    The defendant also complains that [60] and [62] of the FASOC plead irrelevancies insofar as it:
    1. pleads protester activity which is not concerned with Downer or Greyhound;
    2. goes beyond the time when Greyhound is said to have withdrawn in January 2020;
    3. only relies on the Threats and Demands pleaded at sub-paragraphs (a)(i), (a)(xi), (a)(xii), (c) and (e) of the particulars to [60] as being causally relevant to the alleged loss, such that the remaining list of alleged Threats and Demands in [60] is irrelevant; and
    4. pleads activity that is, on its face, not connected to the defendant. 
  4. [93]
    Criticisms were also made by the defendant as to [62A] and [62B] of the FASOC, which are said to not have any apparent relevance to the cause of action.
  5. [94]
    Mr Gibson KC, on behalf of the plaintiffs, noted that the defendant in his Amended Defence has not admitted the allegations nor sought to plead any positive case. The plaintiffs contend that the matters raised by the defendant at best raise issues for trial.
  6. [95]
    In oral submissions, Mr Gibson KC referred the court to a letter to Greyhound from the Galilee Blockade which was sent by email dated 23 January 2020. That letter accords with the letter referred to in the particulars in [63(i)(iv)] and was provided by Adani to Dowd & Co,[39] which he contends adequately supports the pleading.
  7. [96]
    The complaint in relation to the matters relied upon which are said to have caused Downer to terminate negotiations can be addressed by amending the particulars in [63(h)(iii)] to include references to [62(a)] through to [62(o)]. This presumably extends to [63(i)(iv)] in relation to Greyhound.  Mr Gibson KC contends that that is not a sufficient basis upon which to strikeout the pleading and the court should allow them to amend in that respect.
  8. [97]
    Mr Gibson KC further contends that Mr Harding’s evidence, as recorded by Mr Dowd, when read in its proper context, is not limited to the disruption of the Downer AGM as the reason for the withdrawal of Downer but extends to matters discussed at board meetings where protester activity was discussed. This is said to correlate to what Mr Wilson was told by Mr Vora in terms of what took place at the meeting in November 2017.  It was further submitted that the conversation between Mr Dowd and Mr Harding was led as original evidence to demonstrate the evidence likely available at trial.
  9. [98]
    He contends that on the basis of the evidence of conversations with Mr Vora and Mr Harding, there is clearly a basis for the cause of action pleaded even if there may need to be corrections to the pleading.
  10. [99]
    Mr Gibson KC emphasised that Mr Vora had been asked by Mr Wilson about the Press Release of 18 December 2017. Mr Vora told Mr Wilson he had drafted it for distribution by an external public relations consultant and that NAIF funding applied to the Carmichael Rail only and that the Labor Government had in an election promise stated that it was going to veto the Carmichael Rail application for funding, which in fact was what occurred. He said the reference to the NAIF veto was made to deflect public attention from Downer’s withdrawal and that the withdrawal was the real reason for Adani’s decision to operate the mine as an owner-operator and conduct further tenders, which was decided prior to the NAIF veto. Mr Vora said that he confirmed his evidence the subject of Mr Wilson’s affidavit in 2020 as to what occurred at the November 2017 meeting when Downer announced its withdrawal.
  11. [100]
    The plaintiffs point to the fact that Mr Wilson deposes to counsel having been instructed to review the adequacy of non-party disclosure by Downer. Mr Gibson KC therefore states it is not a fair characterisation of Adani’s case against the defendant with respect to Downer to say, in Mr Hodge KC’s language, that the “complete universe of evidence” is available to the plaintiffs.
  12. [101]
    Mr Gibson KC points out that [62A] and [62B] have been in the pleading for some time but had been relocated because they logically flow after the events pleaded in [62].  That said, given the allegations in those paragraphs are not relied on in the tortious intimidation case, he agrees that their location has served to some extent as a distraction. While it creates confusion and would be better located elsewhere it is not embarrassing. For the purposes of this application, it is of no relevance and I will not consider it further.
  13. [102]
    Mr Gibson KC did concede the FASOC required amendments to be made to [63(h)(iii)] to cross-reference [62(a)]-[62(o)].
  14. [103]
    As to the further contention that there are irrelevant allegations in [62], the plaintiffs contend that the defendant misunderstands the plaintiffs’ case.  The wider allegations are relevant to the claim for permanent injunctive relief sought in [66A] and paragraph [2(d)] of the prayer for relief.  The injunctive relief sought against the defendant is to prevent him from engaging in acts to intimidate “Targeted Contractors”.  That includes all of those entities referred to in [62] of the FASOC.
  15. [104]
    Mr Gibson KC further contends that the attribution of the allegations in [62] to the defendant is pleaded in the Galilee Blockade conspiracy. But, in any event, Mr Gibson KC stated that what is required to be proven is the threat by the defendant which is pleaded in [60], not what was done as a consequence of the threats made, which is pleaded in [62]. It is not necessary for him to be involved in the protest action personally.

Should the pleading as to Intimidation be struck out in whole or in part?

  1. [105]
    At this stage, the proceeding cannot go forward without the pleading properly setting out the case that has to be met. Some of the matters raised by the defendant can be said to be technical and the complaints have come late without being foreshadowed in the Amended Defence. However, the complaints are not merely technical, and during oral argument, it became evident that the FASOC does not reflect the plaintiffs’ case in some respects. There are other matters where the complaints are more substantive and which will have to be carefully considered by the plaintiffs in the redrafting of the claim for Intimidation, particularly the relationship between the Demands and Threats, protest activity and the resultant causal link to Greyhound and Downer withdrawing from negotiations. I am not satisfied at this stage that the defendant has established that the proceeding is an abuse of process and there is no possibility that such a claim can be drawn such that the proceedings should be stayed, or the plaintiffs not allowed to replead. While the proceeding has now been on foot for some considerable time, this is the first time complaints as to the FASOC have been raised.
  2. [106]
    As to the deficiencies complained of with respect to the pleading of the claim arising out of the withdrawal from negotiations with BMD by Greyhound, I find that the defendant’s complaint that the present particulars are embarrassing is established for three reasons:
    1. First, the particulars in [63(i)(iv)] do not demonstrate a causal nexus between the Demands and Threats and the ceasing of negotiations, nor is it sufficient to just refer to correspondence to contend that Greyhound withdrew from negotiations in response to the Demands and Threats. Some facts from which it may be inferred must be pleaded. It also now appears that the basis of the case is that the causal nexus is to be inferred, at least in part, from the letter provided to Greyhound by the Galilee Blockade, as identified in oral submissions, and the proximity of that letter to the withdrawal from negotiations.
    2. Secondly, the correspondence referred to in [63(i)(iv)(A)] is not the letter that is now in fact relied upon.
    3. The correspondence in (d) and (e) do not demonstrate that the withdrawal from negotiations was due to Demands and Threats, only they do show it is linked to the protester activity against them.
  3. [107]
    In relation to Greyhound, Mr Gibson KC identified a letter from the Galilee Blockade which supports the factual allegation as to the withdrawal by Greyhound from negotiations, at least in terms of the inference being drawn that the threats contained in the letter were causative of the withdrawal from negotiations by Greyhound, given the proximity of the letter from the Galilee Blockade to Greyhound and the withdrawal by Greyhound from negotiations with BMD.[40] That is not what is pleaded in the particulars at [63(d)] and [63(e)]. The particulars not only do not appear to reflect the correspondence in fact relied upon but also do not identify the facts from which the inference is to be drawn that the Threats and Demands were causative of the withdrawal, as opposed to pleading pieces of correspondence which appear to be relied upon for the drawing of such inferences. Paragraph [63(i)(iv)] should be struck out and leave given to replead. The complaints presently do not warrant the pleading of the claim in relation to Greyhound being struck out. I am not satisfied that there is not a viable claim in this respect and, presently, I am also not satisfied the small amount claimed as damages warrants it being characterised as an abuse of process, particularly in the context of the wider action including the claim for injunctive relief. I will give leave to amend the claim in respect of Greyhound.
  4. [108]
    The allegations in relation to Downer in [63] should be struck out. They are inconsistent with the evidence that has been placed before the court. The particulars relied upon as being causative of Downer’s withdrawal, namely sub-paragraphs (a)(i), (a)(xi), (a)(xii), (c) and (e) of the particulars to [60], have not been the subject of any evidence as to those matter’s affecting Downer’s state in mind in withdrawing from its negotiations with Adani.
  5. [109]
    The defendant points to a number of factual weaknesses and inconsistencies in the pleaded case as to the evidence that has been presented on behalf of the plaintiffs on the information and belief by their lawyers.  It is surprising, given the nature of the application by the defendant, that the plaintiffs did not provide full statements at least by Mr Vora and seek to get a proper statement from Mr Harding in light of the defendant raising the media release of Adani as to the reason that it did not continue negotiations with Downer. The conversation with Mr Harding deposed to by Mr Dowd is clearly an incomplete recollection of events in what seem to have been an opportunistic rather than a planned conversation which was done on the fly. In particular, his recollection of protesters storming the AGM does appear to be consistent with the video evidence of what occurred, at least in part of the meeting, which does not demonstrate any aggression by the protesters. However, Mr Harding’s statement as to the Board determining to withdraw from further negotiations as a result of the protester activity does appear to be corroborated, in part, by the statement of Mr Vora as to what he was told in the November 2017 meeting by Mr Fenn, the CEO of Downer. As to Mr Vora’s statement in relation the media release and the fact that Adani was seeking to deflect public attention from the protesters rather than stating that the reason for Downer’s withdrawal was the protester activity, it is not an explanation which this Court can simply discard as lacking any credibility and, given it is an interlocutory application, evidence can be given on information and belief. His statement as to the November 2017 meeting is consistent with what he is said to have told Mr Wilson in 2020 at the time evidence was prepared for the injunction application before Martin J. It is surprising that he did not apparently inform his solicitors at that time what occurred and the reason Downer had withdrawn was inconsistent with the media release of December 2017. The inunction was not heard ex parte. The non-disclosure of the media release at that time, while it goes to credit, is not a material non-disclosure. That, no doubt, will be fertile ground for cross-examination at a trial if a reasonable cause of action is pleaded by the plaintiffs.  While the evidence put before the court by the plaintiffs in relation to Downer’s withdrawal is less than satisfactory, enough has been placed before the court that they should be permitted to replead.
  6. [110]
    The lack of disclosure of any documents supporting the alleged basis of the withdrawal of Downer being due to the Demands and Threats made or the protester activity does bring into question whether the plaintiffs are going to be able to establish the basis upon which Downer has withdrawn. It is extraordinary that the plaintiffs’ solicitors, who sought non-party disclosure in 2022 against Downer, only sought to brief Counsel in the months leading up to this application and had not apparently resolved the position prior to this application. Such conduct hardly accords with the requirements imposed upon solicitors under r 5 of the UCPR.
  7. [111]
    I am not presently satisfied that the claim with respect to Downer is vexatious, manifestly groundless or that it has been maintained to keep the proceeding alive in order to harass the defendant and suppress his participation in legitimate public debate and protest activity. Notwithstanding that, I am concerned as to the deficiencies in the statement of claim and the delay and inaction by the plaintiffs in ensuring they have pled the actions they will prosecute to trial.  The evidence is not sufficient to persuade me that the approach has been a deliberate one. However, it cannot be permitted to continue.
  8. [112]
    There are a number of concerning aspects with the claim. However, even taking into account the considerable weaknesses evident in the claim that is made, which may not be overcome by the plaintiffs either in first repleading the claim and, if that is successful, at trial, I am not satisfied, despite valid criticisms that have been made, that the plaintiffs, particularly Adani, cannot plead a viable cause of action and that the claim is otherwise illusory and without foundation. There is sufficient evidence suggesting that there may be a proper basis for pleading the cause of action in relation to the events with Downer and they should be given the opportunity to do so. .
  9. [113]
    I am concerned that the plaintiffs have not conducted this litigation in accordance with their obligations under r 5 of the UCPR, particularly in not having made full investigations in relation to the withdrawal by Downer from negotiations with Adani in response to the present application that was foreshadowed in August 2023. While I am not persuaded that Adani cannot plead a valid claim in relation to the withdrawal by Downer, there is presently some uncertainty as to whether they will be able to properly plead the case which they have identified before me as the one they wish to bring.   I will order the amended statement of claim be provided after giving the plaintiffs sufficient time to take proper steps to be able to make proper investigations in order to plead its amended statement of claim. I will require that an affidavit be provided by the plaintiffs’ solicitors verifying that all the necessary investigations have been carried out by the solicitors in order to plead a reasonable cause of action in relation to Downer and that Adani has reviewed and given its instructions that the amended statement of claim can be filed.
  10. [114]
    As to the complaints about [62] of the FASOC, I do not consider that they justify the paragraph being struck out given the relief sought against the defendant includes permanent injunctive relief. I note, however, that as the activity pleaded in [62] is to be relied on as part of the causative link for the ceasing of negotiations, the pleading will need to be amended. It is unclear whether the plaintiffs intend to allege that the protester activity also constitutes threats for the purposes of the cause of action, which will require some attribution to the defendant. As was submitted by Mr Hodge KC, either the actions in [62] are threats, in which case they are the activating element of the tort, or they are not. If they are threats, which is said to be the activating element of the tort, they have to be things that can be attributed to the defendant, which presently is not pleaded.  The alternative possibility raised is that the activity is part of the carrying out of the Threats and Demands in a way consistent with pleading the cause of action, bearing in mind the relevant causative link for the purposes of the action is between the Threats and Demands and the refraining from engaging in negotiations. While the possibility that the plaintiffs wish to rely on protester action as being part of the continuum of Demands and Threats does raise a question as to whether the reformulated action will disclose a reasonable cause of action, it is not apparent on the authorities that it is inarguable and a viable case cannot be pleaded. The submissions before, in this regard, were not an extensive survey of the authorities involved. However, I do not accept the submission of the defendant that the Western Australian decision of Solomon J in Yap v Matic is authority that the cause of action cannot be pleaded as part of the case such that it is inarguable, noting that his Honour referred to the fact it is not a tort which has been litigated extensively in Australia.[41] 
  11. [115]
    Mr Gibson KC clarified in oral submissions that, because [65] concerns only Carmichael Rail, in relation to whom Greyhound was carrying out negotiations with BMD for the Carmichael Rail project, [62] could be deleted from that paragraph given it does not refer to any protester activity in relation to Greyhound. I consider it should also be deleted from [66], however, there may be amendments made by the plaintiffs which may mean that [62] is part of the causative chain, in which case it may be relied upon in the amended pleading.

Inducing a Breach of Contract

  1. [116]
    The plaintiffs plead that the defendant unlawfully induced a breach of contract in [46] to [57A] of the FASOC.  The allegations with respect to Carmichael Rail are distinct from but are essentially in the same form as that pleaded with respect to Adani. 
  2. [117]
    It is uncontentious between the parties that, in order to plead a cause of action of tortious interference with contractual relations by procuring or inducing a breach of contract, the following must be established:[42]
    1. there must be a contract between the plaintiff and a third party;
    2. the defendant must know that such a contract exists;
    3. the defendant must know that, if the third party does or fails to do a particular act, that conduct of the third party would be a breach of the contract;
    4. the defendant must intend to induce or procure the third party to breach the contract by doing or failing to do particular acts; and
    5. the breach must cause loss or damage to the plaintiff.
  3. [118]
    In Daebo Shipping Company Ltd v The Ship Go Star, Keane CJ, Rares and Besanko JJ held that “the gravamen of the tort is the defendant’s intention to induce or procure the breach in the knowledge that such a breach will interfere with the plaintiff’s contractual rights”. [43]
  4. [119]
    An overview of the pleading framework in the FASOC[44] is that the plaintiffs seek an order permanently restraining the defendant from inducing, procuring or seeking to induce or procure Adani Mining Employees and or Adani Mining Contractors (including proposed contractors) to disclose to him, or any other person, Adani Confidential Information on the basis that:
    1. the defendant knows, or ought to know, and at all material times knew, and ought to have known, that the Adani Mining Confidential Information was confidential to Adani, could not be obtained except from Adani’s contractors (including proposed contractors) and employees and that the contractors and employees owed duties not to disclose the Adani Confidential Information to third parties without Adani’s consent;
    2. statements pleaded in [42(d)], [43] and [45] were intended by the defendant to induce the Adani employees and/or contractors to disclose Adani Confidential Information to the defendant and thereby breach their duty of confidence to Adani;
    3. the defendant knowingly and intentionally sought to procure or induce Adani employees and contractors to breach their contractual duty of confidence to Adani;
    4. unless restrained the defendant will continue to procure or seek to procure or induce Adani employees and contractors to breach their contractual duty of confidence to Adani by disclosing Adani Confidential Information to the defendant and participating in “Dob In” campaigns;
    5. the defendant will utilise any Adani Confidential Information which he may obtain to facilitate Direct Action, pressure Targeted Contractors to withdraw from contracts or negotiations with Adani or cease to perform Mine Work or frustrate the development of the Carmichael Mine; and
    6. Adani will suffer substantial and imminent loss if the defendant succeeds in procuring any of the Adani employees and/or contractors to breach their contractual duty of confidence to it.
  5. [120]
    Essentially, the same framework is adopted in relation to the plaintiffs seeking an order permanently restraining the defendant from inducing, procuring or seeking to induce or procure Carmichael Rail employees and or Carmichael Rail contractors (including proposed contractors) to disclose to him or any other person Carmichael Rail Confidential Information.[45]
  6. [121]
    According to the defendant, there are two critical flaws with the plaintiffs’ pleading:
    1. first, the plaintiffs’ pleading failed to disclose a reasonable basis upon which it could be found it is likely that the alleged apprehended future acts of tortious interference will occur; and
    2. secondly, the plaintiffs’ pleading does not disclose the existence of a coherent causal link between the defendant’s impugned tortious conduct, which the plaintiffs seek to restrain, and the loss or damage which the plaintiffs say they will sustain because of the conduct.

Apprehended future acts of tortious interference

  1. [122]
    As to the first matter, the plaintiffs’ claim is not on the basis that there has been any tortious interference in contractual relations but, rather, the plaintiffs’ claim is that there is an apprehended tortious interference in the future. The plaintiffs therefore rely on injunctive relief quia timet. 
  2. [123]
    The principles of granting a quia timet injunction have been discussed by Bennett J in Apotex Pty Ltd v Les Laboratoires Servier (No 2), where her Honour stated:[46]

“A quia timet injunction may be granted if the applicant can show that what the respondent is threatening and intending to do will cause imminent and substantial damage to the applicant. The degree of probability of future injury to the applicant is not an absolute standard. The likelihood of the conduct occurring must be weighed against the degree of seriousness of the injury, the inconvenience to the respondent and the requirements of justice between the parties. However, it must be shown that there is some likelihood that the conduct will occur...” (in-text citations omitted).

  1. [124]
    In discussing the principles for the granting of a quia timet injunction, Bennett J also stated that the applicant “must show that what the respondent is threatening and intending to do will cause imminent or substantial damage to the applicant”, although “the degree of probability of future injury is not an absolute standard”.[47] 
  2. [125]
    The defendant contends that, in order to properly plead the claim, the plaintiffs must plead, and ultimately prove to the necessary degree of likelihood, each constituent element of the underlying cause of action upon which the claim for injunctive relief is based.[48]
  3. [126]
    The defendant firstly complains about the use of the words “or seek to procure or induce” in [51(a)], where the plaintiffs plead that the defendant “will continue to procure or induce or seek to procure or induce” Adani employees or contractors (including proposed contractors) to disclose some or all of the Adani Mining Confidential Information as part of the “Dob In” Campaigns. The defendant contends that the words raise the prospect of a mere attempt by the defendant to interfere in contractual relations as being sufficient to give rise to a cause of action, whereas the proper inquiry is the likelihood that the defendant will succeed in inducing third parties to breach their contracts by disclosing confidential information, not the possibility he might attempt to do so. The defendant contends the words disclose no reasonable cause of action and should be struck out.
  4. [127]
    The plaintiffs contend that the defendant’s argument is premised on an incorrect legal proposition. They contend that the injunction is sought to prevent threatened unlawful conduct and to restrain the defendant from seeking to procure confidential information from parties who have a contractual obligation not to disclose it to him. In Yap v Matic, the conduct sought to be restrained was based largely “not on the consequences of prior conduct alleged to be unlawful, but rather on threatened unlawful conduct that has not yet occurred”.[49] In that regard, Solomon J further observed that“[i]njunctions of that nature are referred to as quia timet injunctions which prevent a threatened unlawful interference with the exercise of the plaintiff’s rights prior to any actual interference”.[50]
  5. [128]
    The complaint about the words “or seek to procure or induce” segues into the defendant’s further complaint. The defendant contends that that the plaintiffs plead that, unless restrained, the defendant will induce breaches by third parties of their confidentiality obligations. That allegation as to the defendant’s future conduct relies on past conduct alleged elsewhere. The defendant contends this is clear from the particulars relied upon in respect of [51(a)], which rely upon the conduct in relation to the “Dob In” Campaigns and Infiltration Campaign. The alleged Infiltration Campaign is premised on persons seeking employment with the plaintiffs in order to obtain confidential information. The alleged “Dob In” Campaigns sought to have persons in possession of Confidential information of the plaintiffs disclose it to the Galilee Blockade. Paragraph [51(b)] pleads that the defendant will utilise any Adani Confidential Information that he may obtain to facilitate direct action against Targeted Contractors and to pressure Targeted Contractors to withdraw from contracts or negotiations with Adani. The particulars of [51(b)] refer back to the particulars of [51(a)], which in-turn refer to the particulars of the defendant procuring confidential information through various public campaigns over a three- and half-year period.
  6. [129]
    The defendant, however, submits that, given the plaintiffs rely on past campaigns, and not the results of the campaigns themselves and, in particular, there is an absence of any pleading that Confidential Information was in fact disclosed and breaches had occurred, there is no pleading demonstrating a likelihood that the information will be used in the way pleaded in [51(b)]. Similarly, there is no pleading that any interference with Targeted Contractors has occurred because confidential information was obtained in response to the campaign to obtain confidential information by the Galilee Blockade. The defendant places significant reliance on the withdrawal of the action for misuse of confidential information. The defendant contends that there is no link pleaded between the gathering of information and the Direct Action or the pressuring of Targeted Contractors to withdraw from negotiations or contracts. In those circumstances, the defendant submits that the plaintiffs’ pleading is nonsensical and fails to disclose a reasonable cause of action for a quia timet injunction. The circumstance that the defendant has conducted campaigns to obtain confidential information without success is not a basis upon which the court could reason that, unless restrained, there is a likelihood that the defendant will succeed where he has previously failed. Given this, the defendant contends that the pleading should be struck out.
  7. [130]
    The plaintiffs, however, contend that it is not necessary for it to have to plead that the defendant was successful in procuring breaches of contract in order to be entitled to injunctive relief and demonstrate a sufficient likelihood of the defendant inducing a breach of contract in the future. That would be contrary to the fact that the injunction can be based, not on the consequences of prior conduct, but on threatened unlawful conduct that has not yet occurred. The plaintiff relies on Solomon J in Yap v Matic in that regard.[51]
  8. [131]
    In particular, the plaintiff relies upon statements such as that by Chesterman J in Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union that:[52]

“The degree of likelihood that the conduct will occur is obviously very relevant but no fixed degree of persuasion that the conduct will occur is necessary. The decision whether or not to restrain the commission of future acts will depend upon an amalgam of factors which have to be considered and weighed… A lesser likelihood of the conduct’s occurrence will justify the grant of an injunction where the plaintiff will suffer great loss if the conduct does occur and the defendant will not be put out by the injunction.”

  1. [132]
    Similarly, in Emerald Construction Co Ltd v Lowthian, Lord Diplock had noted, in the context of that case, “[i]n a quia timet action such as this, it is sufficient to prove the act and the intent and the likelihood of damage resulting if the act is successful in procuring a breach of contract”.[53]
  2. [133]
    The plaintiffs further emphasise that they do not rely on campaigns where the defendant failed to induce others to breach their contacts and provide confidential information because, while they have withdrawn their claim against the defendant for breach of confidence, that was on the basis of their not being able to particularise the confidential information the defendant received. The plaintiffs maintain, on the basis of the defendant’s admissions, that the defendant did receive confidential information which, while not advanced as a material fact, is referred to in the public representations of the defendant maintained in the pleading. The plaintiffs maintain this will be a matter they will submit is relevant to the court’s discretion in the grant of injunctive relief.

Is there no reasonable cause of action?

  1. [134]
    As to the first complaint, the case of TSG Franchise Management Pty Ltd v Cigarette & Gift Warehouse (Franchising) Pty Ltd (No 2) is some authority in favour of the proposition that a permanent injunction may extend to an attempt to procure or induce a breach of contract.[54]
  2. [135]
    The defendant has not established it is inarguable that the words “or seek to procure or induce” disclose a reasonable cause of action. Further, the words do not create any ambiguity and will not give rise to any unfairness or prejudice the trial. I do not find that the contention of the defendant that the pleading is deficient in this respect is well-founded and warrants the words being struck out.
  3. [136]
    As to the second complaint, I consider that the fact that the plaintiff does not rely on past breaches to demonstrate the likelihood there will be future breaches will be a factor that will be assessed by the court in determining the degree of likelihood relevant to the grant of the injunction. Similarly, the reliance on past campaigns in circumstances where they cannot identify any specific disclosure of confidential information in response will be a factor which weighs against likelihood. However, the plaintiffs may arguably rely on the fact that past campaigns, which have been maintained over some three and a half years and were, at least publicly, said to have had some success by the defendant, in support of the likelihood that the defendant will continue to procure or induce or seek to procure the disclosure of confidential information or that the defendant will use confidential information which he may obtain in the manner set out in [51(b)] of the FASOC. As was submitted by the plaintiffs, the fact that the cause of action for breach of confidence is not being pursued does not necessarily mean that the “Dob In” Campaign and Infiltration Campaign failed. That is particularly so given the statements by the defendant.
  4. [137]
    While the plaintiffs’ case will no doubt be challenging in terms of proving likelihood of such breaches in the future occurring, the pleaded cause of action does disclose a reasonable cause of action and does not have a tendency to prejudice or delay a fair trial such that it should be struck out under r 171 of the UCPR.[55]

Absence of causation in pleading of loss and likelihood of loss

  1. [138]
    Paragraph [51(c)] of the FASOC pleads that Adani will suffer substantial and imminent loss if the defendant succeeds in procuring any of the Adani Mining Employees, Adani Mining Proposed Contractors or Adani Mining Contractors to breach their contractual duty of confidence to it. In the particulars of loss, the plaintiffs rely on the fact that the Confidential Information is sought by the defendant for use in Direct Action to pressure Targeted Contractors or otherwise frustrate the development of the Carmichael Mine. Further particulars refer to the Direct Action particularised in [62] of the FASOC. The plaintiffs then rely on other matters to support Direct Action causing loss.
  2. [139]
    The defendant submits that, for a viable claim based on tortious interference with contractual relations to arise, a plaintiff must plead and ultimately prove that the breach of contract said to have been induced or procured by the defendant caused the plaintiff to suffer the loss or damage claimed.
  3. [140]
    The defendant therefore contends that, given the reliance on loss arising from Direct Action taken against the plaintiffs or Targeted Contractors, an essential element of the plaintiffs’ claim is the causal link between any disclosure of Confidential Information to the defendant and the occurrence of Direct Action which in turn will cause loss of the kind that has already occurred.
  4. [141]
    The defendant submits that the allegation that a breach of the contractual duty of confidence will cause loss relies on facts in support of causation which are the historical events of Direct Action and losses said to have been suffered by the plaintiffs because of those historical events.
  5. [142]
    The defendant contends that, given the plaintiffs’ withdrawal of the claims based on existing breaches of confidence, the plaintiffs’ pleaded case must be understood as being that extensive Direct Action and the resulting loss which the plaintiffs say has already been observed:
    1. occurred absent any evidence of prior disclosure of Adani/Carmichael         Confidential Information to the defendant; and
    2. were therefore caused by (unspecified) events or circumstances extraneous to any such disclosure.
  6. [143]
    The defendant submitted that, to plead a proper cause of action, the plaintiffs would have to identify specific Adani Mining confidential information and plead something to illustrate that that disclosure increases the likelihood of Direct Action or the likelihood or effectiveness of pressure applied to Targeted Contractors, which is not pleaded.
  7. [144]
    The defendant contends that those circumstances weigh insurmountably against the availability of a reasonable inference that the disclosure of the Confidential Information to the defendant would be causative of Direction Action. That is said to be further supported by the fact that Direct Action has continued, notwithstanding the interlocutory injunction granted in these proceedings. Both of these features, according to the defendant, highlight the fragility of the plaintiffs’ contention that the disclosure of Confidential Information to the defendant is at all causally relevant to the occurrence of Direct Action and the resulting losses caused by such Direct Action. In those circumstances, the defendant contends there is a lack of coherence in the plaintiffs’ causation hypothesis underpinning their tortious interference pleading such that it does not disclose a reasonable cause of action or is otherwise “harassing, prejudicial, manifestly groundless and, as such, an abuse of process.”
  8. [145]
    The plaintiffs contend that the defendant’s complaint is a trial submission rather than being a complaint as to the FASOC relevant to a strike out application.
  9. [146]
    They contend that the loss claimed for Direct Action in the FASOC has been pleaded as arising from the defendant engaging in the tort of intimidation and, although specific instances of receipt cannot be identified, the defendant has not denied the allegation. That, of course, is a two-edged sword when the specific confidential information has not been identified. 
  10. [147]
    In oral submissions, Mr Gibson KC contended that the defendant overstates what the plaintiffs are required to plead and prove. It is sufficient, according to the plaintiffs, that the confidential information being relied upon is defined by reference to categories in [5] and [21] of the FASOC. Mr Gibson KC contends that it is sufficient to plead the categories of confidential information and the material facts relied upon in the FASOC relevant to the claim. He contends that the defining of Confidential Information together with the pleading as to inducing a breach of contract is sufficient to establish a likelihood of loss to found an injunction. He contends that it is self-evident that the confidential information sought by the defendant is to be used to the plaintiffs’ detriment based on the defendant’s publicly stated endeavours and that it may be inferred that disclosure of information as a result of a breach of contract would self-evidently cause financial loss. However, in relation to this cause of action, they are not claiming damages such that they have to prove actual loss. The plaintiffs contend that the defendant has not made good its argument that the facts pleaded do not establish a case.

Does the FASOC disclose a reasonable cause of action as to causation?

  1. [148]
    The submissions of the defendant and the plaintiffs had an element of over-reach and under-reach. The defendant has over-reached in terms of their complaints about the pleading of causation insofar as it contends that the pleading is “harassing, prejudicial, manifestly groundless and, as such, an abuse of process”. Such a jury submission provides little assistance to this Court. The plaintiffs, on the other hand, have under-reached insofar as they have adopted a de minimis approach in submitting that the complaint is a trial submission, which also provides little assistance. The question for me is whether the facts as pleaded disclose a cause of action or whether the pleading should be struck out on any other basis contained in r 171 of the UCPR.
  2. [149]
    In Sedgewick Australia Pty Ltd v JLOC Super Pty Ltd, the court held:[56]

“Third, if causation is an essential element of a pleaded cause of action:

  1. The pleader must plead the material facts which establish the necessary causal link between the alleged wrongful conduct and the claimed loss.
  1. That duty extends to require the pleader to plead the material facts on which the party relies to establish any counterfactual relied on to establish the requisite causal link.
  1. The pleading so framed, must give rise to a reasonable inference that the alleged wrongful conduct and the claimed loss stand to each other in the relation of cause and effect.
  1. The entitlement to have the foregoing matters pleaded should be regarded as an incident of the essential function of pleadings, which is to ensure the basic requirement of procedural fairness that a party should have the opportunity to meet the case put against it.” (citations omitted).
  1. [150]
    As was submitted on behalf of the plaintiffs, the nature of the confidential information defined in [5] and [21] of the FASOC is one of the facts from which it can be inferred that disclosure of the information in breach of the duties of confidence to the plaintiffs would cause loss. Similarly, statements by the defendant of how the Galilee Blockade would use the Adani or Carmichael Rail Confidential Information can also be used to infer the disclosure of such confidential information in one of the ways outlined, including by Direct Action. However, what [51(c)] omits to do is plead any material facts from which it can be inferred that the Adani Mining Confidential Information or Carmichael Confidential Information could be used to facilitate Direct Action. The fact that Direct Action has been carried out in the past does not, when it is not pleaded to be due to the Galilee Blockade, provide the missing link.  The fact that there are five categories of Adani Mining Confidential Information or Carmichael Confidential Information, which is what is purported to be relied upon, and the relevant pleading may be lengthy as a result, is a consequence of the case the plaintiffs seek to make. In any event, the pleading would not have to plead every possible permutation but may plead sufficient material facts from which the defendant can know the case it has to meet. As it stands, as a result of the missing link, [51(c)] fails to plead material facts to demonstrate that what the defendant “is threatening and intending to do will cause imminent and substantial damage” to the plaintiffs.[57]
  2. [151]
    The fact, however, that the plaintiffs cannot plead that confidential information was used for Direct Action in the past does not preclude the possibility of the plaintiffs establishing a likelihood of future loss based on future conduct involving the use of confidential information in Direct Action. I accept that the fact that the plaintiffs are not pursuing a claim for breach of confidence does not, as Mr Gibson KC contends, prove there was no such breach and no loss suffered. However, there is presently no allegation that the Direct Action was facilitated by obtaining Confidential Information. The particulars in [51(c)(v)] to [51(c)(vi)] are irrelevant without that being pled by the plaintiffs. While alleged admissions made by the defendant that he obtained such information may be relevant to inferring that the defendant will use any Confidential Information that is disclosed to him, that is insufficient to demonstrate or infer that the disclosure of Confidential Information will be used for the Direct Action so as to be causative of loss. The fact that there may be other contributors which lead to Direct Action does not mean the plaintiffs cannot succeed, nor does the fact that Direct Action may have occurred without the disclosure of Adani Mining Confidential Information or Carmichael Confidential Information, although both matters may well create a hurdle for the plaintiffs to have to overcome at trial.
  3. [152]
    This has, again, not been the subject of any complaint in relation to a prior version of the statement of claim. While the pleading is deficient such that [51(c)] should be struck out. Given the Carmichael Rail pleading is in the same terms, [57(c)] suffers from the same affliction. While I have not found all of the defendant’s complaints to be established, given [51(c)] and [57(c)] are essential elements required to be pleaded, I will strike the whole of the cause of action out. I am not satisfied that the defendant has shown that the plaintiffs’ case as to causation and loss is fatally flawed and that the plaintiffs cannot plead a reasonable cause of action. I will give liberty to replead.

Summary of Findings

  1. [153]
    Given my findings above, the orders of the Court will be that the following paragraphs of the FASOC be struck out with liberty to replead:
    1. [46] to [57A];
    2. [63], [65] and [66];
    3. [67] to [73A]; and
    4. [78] to [82].

Application to set aside injunction

  1. [154]
    The defendant applies for orders setting aside the interlocutory injunctions issued by orders made in this proceeding on 11 September 2020. The specific orders that are in the subject of the application are:
  1. “2.
    Until the hearing and determination of the proceeding or further order of the Court:
  1. …
  1. (c)
    the Defendant must not:
  1. (i)
    publish or cause to be published any statements promoting or referring to the Dob In Campaigns on the Galilee Blockade Website, the Social Media Accounts or by any other means;
  1. (ii)
    publish or cause to be published any statement on the Website or the Social Media Accounts or by any other means to the effect that unless Targeted Contractors cease to withdraw from contracts or negotiations or otherwise cease to perform any of the work of Adani Mining or Carmichael Rail, the Targeted Contractors would be the subject of Direct Action by persons associated with the Galilee Blockade;
  1. (iii)
    induce or procure or seek to induce or procure Adani Mining Employees, Adani Mining Proposed Contractors and Adani Mining Contractors to disclose to him or any other person the Adani Mining Confidential Information;
  1. (iv)
    induce or procure or seek to induce or procure Carmichael Rail Employees, Carmichael Rail Proposed Contractors and Carmichael Rail Contractors to disclose to him or any other person the Carmichael Rail Confidential Information; and
  1. (v)
    induce or procure or seek to induce or procure persons to disclose to him or any other person the Information;
  1. (d)
    the Defendant must not:
  1. (i)
    use, copy or deal with in any way;
  1. (ii)
    communicate, directly or indirectly, to any other person, Adani Mining Confidential Information and Carmichael Rail Confidential Information;
  1. (e)
    the Defendant must not:
  1. (i)
    use, copy or deal with in any way;
  1. (ii)
    communicate, directly or indirectly, to any other person,
  1. Information received by him in response to the Dob In Campaigns.”
  1. [155]
    The orders did contain two mandatory injunctions which required the defendant to remove statements and other content from various websites and social media platforms by 12 September 2020. No issue is raised suggesting that the defendant did not comply with those orders.  Those orders are therefore no longer extant. 
  2. [156]
    As to the remaining seven injunctions, which are comprised of ongoing prohibitory injunctions, the defendant submits that the restraints imposed upon him are extremely broad and information covered by the restraints includes information which is now publicly promoted by the plaintiffs or their contractors including on their own websites.
  3. [157]
    Rule 667(2)(c) of the UCPR provides that a court may set aside an order for an injunction at any time.  Relevantly, it states:
  1. “(2)
    The court may set aside an order at any time if—
  1. …
  1. (c)
    the order is for an injunction or the appointment of a receiver…”
  1. [158]
    The power is discretionary, but as Cooper J stated in Resort Lifestyle Developments Pty Ltd v NGI Savannah Living Communities Pty Ltd:[58]

“Whether, and in what manner, such an order should be varied will be dictated by the demands of justice in the particular circumstances of the case.”

  1. [159]
    One of those particular circumstances includes a material change of circumstances since the order was made.[59]
  2. [160]
    There is also power under r 367(1) for the court to make any order or direction about the conduct of a proceeding it considers appropriate.  The interest of justice are paramount.[60] It has been recognised, however, that the court’s inherent power to control and supervise proceedings, which includes the power to take appropriate action to prevent injustice, also continues notwithstanding the provisions in the UCPR.[61]

Why set it aside?

  1. [161]
    The defendant particularly contends that there are two reasons why the court should exercise its discretion to set aside the remaining prohibitory injunctions:
    1. First, for at least three of the injunctions,[62] the central allegation relevant to the prima facie claim upon which those injunctions were granted was that the defendant had already received and misused Adani/Carmichael Confidential Information; and
    2. Second, in relation to the remaining prohibitory injunctions, the balance of convenience no longer favours the injunction being in place as a result of changes to the plaintiffs’ case on loss and damage and the “fragility of the plaintiffs’ case that they have or will suffer substantial loss or damage because of the defendant’s (alleged) conduct”.
  2. [162]
    The plaintiffs contend that there has been no change of circumstance which would justify the setting aside of the injunctions.
  3. [163]
    The respondent appeared for himself at the injunction application. An application for an Anton Pillar Order had earlier been refused by Dalton J.[63]
  4. [164]
    In seeking the injunctions before Martin J, it was contended that substantial loss had flowed from the withdrawing of Downer, increases in insurance premiums and increases in security costs.  The latter two are no longer pleaded as part of Adani’s case of loss and damage and the plaintiffs submit the loss suffered because of Downer’s decision to withdraw from negotiations is on shaky ground. No other loss has been identified in evidence provided by the plaintiffs in this application.
  5. [165]
    Fundamentally, according to the defendant, Martin J relied on the breach of confidence case in determining whether to grant the injunctive relief. That case has now been abandoned. 
  6. [166]
    Justice Martin found that there was sufficient evidence to demonstrate the elements of an action for breach of confidence and additionally found that:[64]

“The material relied upon by the applicants is sufficient to demonstrate that there is a likelihood that either or both of the applicants will suffer loss or damage in the future if confidential information is disclosed and is used by Mr Pennings and Galilee Blockade for the purpose of harming the applicants. The information would allow members of Galilee Blockade to identify targets for activity and to disrupt construction activities at worksites. This has already, on the material relied upon, occurred on over 50 occasions.”

  1. [167]
    Mr Hodge KC submitted that, based on the statements of Martin J, it is evident that his Honour considered there was a link between Direct Action which had occurred on more than 50 occasions and the information that had apparently been obtained, which was Confidential Information.  His Honour also had stated that he was satisfied that the defendant, by himself and with others, had misused and would, unless constrained, continue to misuse confidential information for the purpose of frustrating or terminating the development of the Carmichael mine and rail network.[65]
  2. [168]
    Similarly, in relation to the case of inducing breach of contract, Martin J noted that the plaintiffs relied on the same unchallenged evidence in the cause of action for breach of confidence.[66]  The defendant further observed that his Honour found that protest activity undertaken by the Galilee Blockade had led to at least three contractors withdrawing and that information published on the social media accounts reinforced that the Galilee Blockade was determined to continue to obtain confidential information and use it and other information to place pressure upon contractors to either withdraw from negotiations or withdraw from contracts.[67]
  3. [169]
    The defendant referred to the explanation for delay considered by Martin J, which emphasised the importance of the breach of confidence case.[68] The explanation for delay before his Honour was that it wasn’t until the defendant made representations on an ABC program that he had obtained sensitive and confidential information that part of the plaintiffs’ cause of action was established.
  4. [170]
    As to the tort of intimidation, which was considered by Martin J, there was, according to his Honour:[69]

“… un-contradicted evidence that large contractors and suppliers have been the target of demands and threats and that some of those threats have been fulfilled through action being taken against contractors such as: Downer Group, AECOM, and Greyhound Australia.”

  1. [171]
    The defendant observes, correctly, that since that time, allegations in relations to AECOM have since been abandoned.  The allegations as to Greyhound only sounded in $37,579.30 damage. That was a matter that had been identified by Dalton J in her earlier reasons for judgment. The defendant has also been successful in demonstrating that the pleading of the claim in relation to Greyhound is technically embarrassing. The defendant also relies on the fact that it has submitted that the claim arising out of Downer’s withdrawal from negotiations is not a viable cause of action.
  2. [172]
    As to Downer, the defendant contends that the FASOC continues to rely, notwithstanding the time that has passed, on statements made in early 2017 to journalists and three pages published on the Galilee Blockade website to contend that Downer terminated negotiations. The defendant relies on his contention that there is no apparent basis for the allegation that the Demands and Threats led to Downer terminating negotiations with Adani,[70] nor has any information in relation to Downer supported the allegations made.  That was also the basis upon which the defendant contended that the pleading was an abuse of process.  In relation to the injunctive relief, they contend that this changes the balance of convenience given it reveals that there is a hopeless case.
  3. [173]
    The defendant also submits that, while Martin J made a finding that the defendant had committed and, unless restrained, will continue to commit the tort of intimidation, if the court struck out the pleas of intimidation, that would reset the situation for the plaintiffs.
  4. [174]
    As to the tort of conspiracy, Martin J did not in fact make any findings as to that case having been established, even in the prima facie sense. 
  5. [175]
    In relation to the injunction in paragraph 2(c), the defendant contends that the provision in (i) extends to both lawful and unlawful action, given the definition of “dob-in” campaigns, which refers to requesting persons in possession of “confidential information or information” to disclose it to the Galilee Blockade, while (ii) is directed to preventing protest action and (iii) and (iv) are directed to confidential information. The defendant further contends that, after four years, the plaintiffs have not been able to demonstrate that anyone disclosed confidential information.  The provision in (v) is addressed to information rather than “confidential information”.  Further, the injunctive relief in sub-paragraph (c) is directed to the use of confidential information, while (e) is directed to information received in response to the “dob-in” campaigns.
  6. [176]
    The defendant submits, therefore, that there was a material change in circumstances from when his Honour made orders providing for injunctive relief, particularly since the injunction was premised on a cause of action that has now been abandoned.  That is reinforced by the injunction being premised upon a chain of loss said to be as a result of Downer ceasing negotiations, which the defendant contends is speculative at best. Relevant to the balance of convenience is the fact that such orders restrict the defendant’s freedoms that others enjoy, albeit most restraints relate to preventing him from breaking the law.
  7. [177]
    The plaintiffs contend that, despite the fact that the case positively asserting that the defendant received confidential information has been abandoned, the injunction was based on broader considerations than that. Further, while Martin J found that confidential information had been obtained and misused, he made no finding that the defendant had received any particular kind of confidential information.  In particular, the plaintiffs point to findings by his Honour that, without restraint, the defendant was determined to continue to obtain confidential information and to use it and other information to place pressure on contractors to either withdraw from negotiations or withdraw from contracts. That is, unless restrained, the defendant would commit the tort of intimidation. Justice Martin also found that the plaintiffs had provided evidence to support a higher degree of assurance that, at trial, it will appear that the mandatory interlocutory injunctions were rightly granted.[71]
  8. [178]
    The plaintiffs contend that there is no evidence in the present application from the defendant that he would not commit any further unlawful acts of protests if the injunction is not maintained, nor any evidence rebutting the allegations in the FASOC as to his own public representations which support the view that he would proceed to engage in acts of protests if the injunctions were lifted.  That is said to be further supported by the statement made in 2022 that the present court case has stopped him from doing things in the “stop Adani movement”.  It also refers to part of the defendant’s disclosure there is a document that quotes the defendant as saying that “Downer doing the right thing would be a major setback for Adani’s plans to open the largest coal mine in the southern hemisphere. We will escalate our legal and illegal actions until they choose the right side of history. The world is watching”.[72] 
  9. [179]
    The plaintiffs contend that the prospect that the defendant received confidential information based on his own statements made publicly remains as particulars in the FASOC and remains a relevant aspect of the case.  Further, it contends that, even if the quantum of the intimidation action has diminished, that does not indicate that the plaintiffs will not suffer loss in consequence of the defendant’s conduct if he were permitted to continue prosecuting unlawful acts against the plaintiffs.

Should the injunction be set aside?

  1. [180]
    It is not necessary to canvas the principles in relation to the granting of injunctions. There are a number of factors that are taken into account. The strength of a case is taken into account, not only in respect of a prima facie case, but also as a relevant consideration in assessing where the balance of convenience lies.[73]
  2. [181]
    Critical to Martin J’s findings in terms of balance of convenience are the findings at paragraphs [44] and [45], which state:[74]

“[44]

The balance of convenience clearly favours the granting of relief. The plaintiffs have a good case against Mr Pennings and there will be no prejudice to him should orders be made which, effectively, require him to act in a lawful way. The injunction sought will have no financial repercussion for Mr Pennings but, if they are not made, the losses to the applicants will be very substantial.

[45]

The injunctions sought do not seek to, nor would they, have any effect on any business or undertaking of Mr Pennings, nor do they restrict his right, or any other member of Galilee Blockade, to participate in lawful protest.

  1. [182]
    The question is whether the abandonment of the cause of action for breach of confidence and the points of apparent weaknesses that have been identified in the plaintiffs’ case constitute a change in material circumstances justifying the setting aside of the orders.
  2. [183]
    Justice Martin’s reasons demonstrate that his Honour found that, not only was there a prima facie case for breach of confidence, but that there were prima facie cases for the tort of intimidation and inducing a breach of contract. The injunctive orders were not appealed.
  3. [184]
    Prior to the FASOC, the previous statement of claim included claims for mandatory injunctive relief and damages based upon allegations that the defendant:
    1. knowingly procured or induced others to breach their contractual or equitable duties of confidence owed to Adani and Carmichael Rail; and
    2. himself breached equitable duties of confidence owed to Adani and Carmichael Mine; and
    3. received and misused Adani/Carmichael Confidential Information as part of a conspiracy.
  4. [185]
    The defendant contends that the plaintiffs used the benefit of injunctive relief and the court’s compulsory powers to investigate whether the breaches of the alleged causes of action had occurred. No explanation for the abandonment of the causes of action was provided at the time. The plaintiffs, in their submissions, have set out the basis upon which the allegations were made, namely statements by the Galilee Blockade at the time when the defendant was a spokesperson for the Galilee Blockade, which have been pleaded and largely admitted in paragraph [37] of the Amended Defence. Those statements included Twitter posts stating things about the Carmichael Rail and Adani that they had become aware of such as:[75]

“BREAKING: we now (sic) that BMD are building #Adani’s railway. LEAKED STAFF EMAIL… We will target BMD until they get out of bed with Adani”

and

“Galilee Blockade spokesman Ben Pennings claimed an FKG staff member had revealed the company was negotiating to work on Adani’s Carmichael rail network. ‘We want to convince them to rule that out before they sign on the dotted line,’ Mr Pennings said. ‘The simple message is: FKG can expect action at any of its Australian offices’”.

  1. [186]
    The defendant did not admit allegations that he had received confidential information of the plaintiffs in [48] and [54] of the Amended Defence. The plaintiffs contend that there were also media statements made by the defendant “consistent” with the receipt of Confidential Information by the defendant. 
  2. [187]
    The plaintiffs submit that the amendments to delete the allegations were a consequence of the defendant’s disclosure not revealing any confidential information. The plaintiffs have made submissions as to the process for disclosure. After complaints were made as to the adequacy of the defendant’s disclosure, the defendant provided an affidavit which set out an explanation for the small amount of documents disclosed by him relative to statements made as to the large amount of information which had been obtained by the Galilee Blockade. No doubt it will be the subject of cross-examination and submissions as to inferences that should be drawn from the public statements made, particularly by the defendant, as to the information that was obtained and used by Galilee Blockade.  There is also some inconsistency in assertions as to the effect of disclosure upon the defendant made in submissions to Wilson J, where it was said disclosure was going to be onerous for the defendant when compared to the ultimate number of documents which were in fact produced.
  3. [188]
    The defendant’s affidavit, affirmed on 24 May 2023, does suggest that documents may have existed but have not been able to be disclosed. To the extent information was received on the Galilee Blockade website, Galilee Blockade Google Drive and Galilee Social media accounts and Galilee Blockade email accounts, some of which were identified in the “Dob In” campaign as being platforms where people were encouraged to provide information, the defendant deposed to not having access to those various platforms since 2020. Further, he stated information was generally provided by tip offs or in a telephone conversation. Most of them were done through the Galilee Blockade platforms but, to the extent he may have received them, he had deleted his public and private Facebook and Twitter messages following the order of Martin J. His GMail and Signal accounts deleted communications through an automatic system and he deleted the contents of other accounts. He stated he didn’t recall receiving information on those accounts before the messages were deleted. Thus, the lack of disclosure may not simply be able to be attributed to the lack of confidential information having been obtained, nor in the circumstances, can the disclosure process in relation to the defendant be described as onerous and intrusive. There is a basis upon which it may be inferred that information was received and used, given the nature of the long running campaign and statements by the defendant, and an explanation for why the information no longer exists.
  4. [189]
    It is not submitted that there was any evidence before Martin J that specific confidential information had been identified as having been obtained, as opposed to reliance on statements made by the defendant himself. Justice Martin, in his reasons, referred to the Infiltration and Dob-In Campaign and stated that:[76]

“[20]

The applicants rely upon un-contradicted reports that Mr Pennings has said that he has almost “too much information” from insiders after the Dob-In Campaign. It is reported, and he has not denied, that he has said that he has information about who is bidding for particular types of work and that because the Galilee Blockade has that information they can use it to get the contractors “out of bed with Adani”.

[21]

Mr Pennings is responsible for the publication on the internet platforms referred to above of threats made against the applicants and Targeted Contractors, the Infiltration Campaign, and the Dob-In Campaign. He has also published, on his personal social media accounts, the same or similar threats.”

  1. [190]
    I am satisfied that there was a basis for the plaintiffs pleading the causes of action relating to breach of confidence. That came from the nature of the Infiltration and Dob-In campaigns themselves and statements subsequently made by the Galilee Blockade. While the plaintiffs had anticipated being able to obtain documents on disclosure to substantiate the claims, given the statements made by the defendant himself, it is obvious that such information could only come from the defendant himself. I do not find the pleading of the claims was “merely a hook cast in a fishing expedition which failed to yield a catch”. The discontinuing of the claims recognises that they could not particularise and prove the claims but does not mean that there was not a basis for bringing the claims. The FASOC had been foreshadowed prior to the defendant foreshadowing this application, having been referred to in draft orders provided by the plaintiffs in July 2023, contrary to the defendant’s assertion that the claims were withdrawn after he had foreshadowed requiring the solicitors for the plaintiff to provide an affidavit certifying that they had a proper basis for their claims. I do not find that those causes of action were sought to be improperly maintained, given the explanation and chronology provided by the plaintiffs in submissions, contrary to the submissions made by the defendant.
  2. [191]
    The abandonment of the breach of confidence cause of action on the basis that the plaintiffs could not identify Adani or Carmichael Rail Confidential Information that had been obtained by the defendant and used in one of its campaigns, particularly the Direct Action campaign is not, however, insignificant.
  3. [192]
    The strength of the plaintiffs’ case is diminished to a certain extent by the abandonment of the claims, compared to when it was before Martin J. Although, the plaintiffs maintain reliance on the admissions by the defendant that he obtained and used confidential information in the context of the remaining claims and contend that those admissions are relevant to any exercise of discretion by the court, should it arise. It is also apparent from his Honour’s reasons that he did not only rely on the claims claiming a misuse of confidential information.
  4. [193]
    As to the question of loss, there are two aspects to that. There remains the potential loss that the plaintiffs will suffer if Adani or Carmichael Mine Confidential Information is obtained by the defendant, which is the subject of injunctive relief for the inducing a breach of contract claim, which I have discussed above. While I have found that there are deficiencies in the way the claim is pleaded, I have not found there is no arguable basis for the claim including that loss will be sustained. As to the claim for damages arising out of Downer ceasing negotiations, the defendant has highlighted weaknesses in the claim arising from the public statement made by Adani as to the reason for the withdrawal. There is evidence that Downer did withdraw from the negotiations with Adani as a result of protester activity, albeit controversial. There is evidence of such protester activity having targeted Downer, which is pleaded in [62], and it is in accordance with the threats made. As I have found, however, the pleading is deficient insofar as, while Mr Gibson KC submitted to the court that that they wish to rely on that protestor activity as part of the causal link to the damages and loss, the basis upon which that is linked to the Demands and Threats said to have been made by the Defendant is yet to be pleaded. As stated above, I am not satisfied presently that the claim in relation to Downer is inarguable. Nor am I satisfied, as contended by the defendant, that the protester activity cannot be relied upon as part of the claim on the basis it is irrelevant to the cause of action. As stated above, it does not appear to be a strong case on the basis of the present state of the evidence. If, however, the claim can be successfully pleaded, the plaintiffs have presently pleaded that significant loss has occurred which is not the subject of challenge at this application.
  5. [194]
    Accepting that Adani has a weaker case than may have been found to exist by Martin J and the strength of the case is relevant to the balance of convenience, the question is whether that fact and consideration of the balance of convenience favours the setting aside of the injunctive orders. Injunctive orders are onerous for those who are subject to them and, for that reason, are not lightly made. However, the orders in 2(c)(i)-(iv) and 2(d) are directed to the defendant not engaging in behaviour which is a civil wrong. He has no entitlement to seek or use Confidential Information of the plaintiffs nor to make threats to Contractors dealing with the plaintiff. As to 2(c)(v) and 2(e), the use of Information is only relevant to lawful conspiracy. I have, however, given leave to replead that cause of action and consider that there is evidence that it is a cause of action capable of being pleaded. The Information in question is defined and is only relevant to Adani and Carmichael Rail.
  6. [195]
    While the scales have tilted to a degree the balance of convenience presently still favours the injunction, given the nature of the campaigns in which the Defendant was involved. Those campaigns, at least in terms of their stated intent, extended to seeking persons to breach their duties of confidence and the making of threats to those contracting or negotiating with Adani or Carmichael Mine if they did not desist. The potential that the plaintiffs have suffered and will suffer loss if that continues still favours the granting of the injunction. In that respect, it is not insignificant that the defendant did not provide any evidence that he did not intend to continue to be involved in the campaigns such as the “Dob In” campaign or Infiltration campaign. While lawful protest activity and free speech should not be constrained, that presently is not threatened by the injunctive orders, save in one respect, which is the result of the definition of Direct Action, which could extend to lawful protest activity. However, the terms of 2(c)(ii) is directed to the making of threats to contractors that, unless they withdraw from contracts or negotiations with Adani or Carmichael Rail, they would be the subject of Direct Action. It is not a prohibition on protest action generally.  As such the statements of Martin J in [44] and [45] still generally hold true.
  7. [196]
    I have given significant consideration to whether the injunctions could be appropriately maintained in light of the change of  the plaintiffs’ case and the other matters raised by the defendant. The scales will change considerable if the plaintiffs’ cannot plead proper causes of action now that they have been given the opportunity to do so and do not pursue this litigation with expedition.
  8. [197]
    I am not persuaded, at present, that the circumstances have materially changed to justify the setting aside of those orders. If the plaintiffs can’t remedy the deficiencies in their pleadings, then the question can be revisited at that time because it will be evident whether there is any cause of action to sustain the injunctions.

Setting aside or staying costs orders

  1. [198]
    The defendant seeks to strike out or stay enforcement of costs orders made in favour of the plaintiffs on 29 July 2021 and 8 March 2022. 
  2. [199]
    The power for the court to do so is contained in r 668 of the UCPR, which confers the power upon the courts to set aside or stay the enforcement of an order if either of two conditions in r 668(1) are met, namely:
    1. “facts arise after an order is made entitling the person against whom the order is made to be relieved from it”; or
    2. “facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.”
  3. [200]
    Justice Applegarth in AMA v CDK held:[77]

“While it is appropriate to apply an expansive view of the words ‘entitling’ or ‘entitled’ in r 668(1) as extending to cases in which relief depends on a favourable exercise of discretion, the circumstances in which courts will permit a final order to be set aside are well-established and the exercise of the discretion under r 668 is affected by the principle protecting the finality of judgments. An obvious circumstance in which the discretion given by r 668 may be exercised is when the new facts arise or are discovered after an order is made that ‘would not have been made had those facts then been known or existed’.”  (Footnotes omitted).

  1. [201]
    Finality of judgments is an important consideration in the exercise of any discretion under r 668 if it enlivened.[78] It must be shown that the matters which have come to light after the relevant order was made would have entitled the applicant to a different order.[79]
  2. [202]
    The defendant also relies on the court’s power under r 367 of the UCPR to set aside or stay the enforcement of the costs order, which provides the court with a broad discretion to make such orders and issue directions as required to facilitate the interest of justice.  As set out above, it is supplementary to the court’s inherent power to exercise control over its own proceedings, including to avoid abuses of process and to prevent injustice.
  3. [203]
    In Lee v Abedian, Applegarth J stayed the enforcement of a costs order until the determination of the proceeding, or earlier order.[80]  In that case, orders had been made that Mr Lee, the plaintiff, should pay the fifth defendant’s costs of an application which could not be heard due to insufficient court time and a further application in which parts of his statement of claim were struck out with leave to re-plead.  His Honour noted the costs were assessed “in the surprising amount of $215,495.09”.[81] 
  4. [204]
    The money orders, if enforced, would have resulted in Mr Lee being bankrupted as he barely had any assets, resulting in the stifling of the action. 
  5. [205]
    In that case, however, the stay was sought of the money order pursuant to r 800(1) of the UCPR, which is referable to a specific power to stay enforcement of a money order. That is not a power enlivened in the present case. Justice Applegarth considered that the application for a stay did not require the applicant to show special or exceptional circumstances but, rather, was to be decided by taking into account whether the need to do justice between the parties, by balancing their competing rights and interests, justified the grant of a stay.  His Honour noted that, in general, the court should not be disposed to delay enforcement of their orders and a successful party in litigation is entitled to fruits of a judgment.[82]  In that case, his Honour noted that there was no identified irreparable harm to the defendants, such as the risk of dissipation of assets while a stay remained in place, but there was an identified prejudice to the plaintiff if the stay was not granted given he faced bankruptcy.  His Honour did, however, emphasise that the circumstances of the case were unusual given that the plaintiff had meagre assets and the defendant stood to recover little, if any, money if they enforce the costs order and that they are capable of absorbing the cost burden while the stay operates.[83]

Costs Orders

  1. [206]
    In a contested application for a Fielder Gillespie Order, in which the plaintiffs were successful, I ordered on 29 July 2021, that the defendant pay 60% of the plaintiffs’ costs.
  2. [207]
    In a contested application as to particulars, Callaghan J ordered on 8 March 2022 that the defendant to pay:
    1. 60% of the plaintiffs’ costs of the Limited Particulars Application;
    2. 80% of the plaintiffs’ costs of the Confidentiality Regime (Particulars) Application; and
    3. 66% of the plaintiffs’ costs of the Deferred Particulars Application.
  3. [208]
    The cost statement was purportedly issued under r 705 of the UCPR and was provided some two years after the first cost order was made. It ran to over 1,100 pages and was calculated to be greater than $1.1 million.  That is quite a startling amount given the applications in total occupied under two days of hearing time, although they involved some level of complexity.
  4. [209]
    After the plaintiffs’ solicitors served the costs statement on the defendant’s solicitors, the defendant’s solicitors wrote to the solicitors of the plaintiff on 3 September 2023, identifying some preliminary points of concern in relation to the cost statement, including that:
    1. there are instances where the cost statements made claims for counsel fees in an amount comprising 160% of the fees in fact charged by counsel in the invoices attached to the cost statement; and
    2. the cost statement included claims for costs incurred by the plaintiffs in preparing and delivering their further and better particulars, which was not part of any costs order.
  5. [210]
    An amended cost statement was served on 27 October 2003 which purported to reduce the costs claimed by over $300,000 on the account of an “erroneous calculation”.  The plaintiffs did not provide a marked-up version of the cost statement to the defendants to allow them to identify the changes which had been made, however, the defendant contends that the amended statements still had issues, including that:
    1. it made claims on account of counsel fees in amounts which comprised between 90% to 105% of the fees in fact charged by the plaintiffs’ counsel;
    2. it made claims for solicitor fees in an amount equal to 90% of the amount allowed under scale of costs; and
    3. it made claims for costs incurred by the plaintiffs in preparing and delivering their further and better particulars and performing other work not covered by the relevant costs order.
  6. [211]
    Mr Wilson signed the cost statement.  He deposed to the fact that, as he had engaged a professional cost consultant to prepare the cost statement, he did not consider it was necessary to carry out a detailed review of the statement before he signed them and arranged for them to be served. Given the obvious errors in the costs statement, it is clear he didn’t carry out a detailed review.  That is so, notwithstanding he had day-to-day carriage of the matter. 
  7. [212]
    According to the defendant, the material before the court supports a strong inference that the original and amended cost statement, which were delivered by the plaintiffs 18 to 25 months after the cost orders were made, a year after a cost consultant was engaged and on the eve of the plaintiff delivering their FASOC, were delivered in circumstances where the plaintiffs either knew or ought to have known that the amounts claimed in those statements significantly exceeded the plaintiffs’ entitlements or were otherwise indifferent to the accuracy of the amounts claimed in the cost statement.  The defendant contends that, given the cost statements are manifestly in excess of their entitlements, coupled with the timing of the delivery of those cost statements, the court should infer that it was to bring unjustifiable pressure upon the defendant and the conduct was apt to bring administration of justice into disrepute. 
  8. [213]
    In the application for the stay or striking out of the cost order, the defendant has raised a number of points in paragraph [225] of their submissions.  In particular:
    1. the defendant observes that the cost orders related to the establishment of confidentiality regimes over some of the plaintiffs’ disclosed documents and particulars and sought to prevent the defendant from having access to confidential information, which was opposed by the defendant;
    2. the basis of relief sought by the plaintiffs were largely based on the pleaded allegation that the defendant had received and misused the plaintiffs’ confidential information;
    3. the plaintiffs have withdrawn their allegations that the defendant received and misused confidential information;
    4. the plaintiffs’ application for confidentiality regimes and to be relieved from the obligation to provide particulars and disclosure were an arid exercise and, in that regard, the defendant contends they concerned applications brought to support allegations pleaded by the plaintiffs that the defendant had received and misused Confidential Information, save for the deferral of particulars by the plaintiffs;
    5. the plaintiffs contend that the value of the cost orders is immense, running into hundreds of thousands of dollars, and have been served with significant errors; and
    6. that, in the circumstances, it is manifestly unreasonable and unjust for the defendant to bear the plaintiffs’ cost of the application.
  9. [214]
    The plaintiffs unsurprisingly oppose the orders sought by the defendant, contending that the defendant does not demonstrate why the cost orders should be set aside, particularly given that they were fully argued and there was no appeal.  They contend that the question of the quantum of the cost assessment was a matter for a cost assessor and separate from whether the cost orders should be set aside.
  10. [215]
    As to the question of any intention to use the cost statements to oppress, bully and harass the defendant, Mr Wilson had deposed to the reason for delay being the obtaining of a cost assessment after he had inquired of the defendant’s lawyers whether they wished to bring an application for a stay of the cost orders “given [the defendant’s] ability to defend these proceedings will presumably be compromised or stifled by the enforcement of an assessed sum of cost”.[84]  The plaintiffs contend that it is only after the plaintiffs incurred the significant costs in arranging for a professional cost assessment and the serving of the cost assessment that the defendant has chosen to raise any complaint and the delay in their doing so should weigh heavily against making orders sought by the defendant.
  11. [216]
    The plaintiffs contend that the confidentiality regime for disclosure and particulars remained relevant as the plaintiffs remain obliged to prove that confidential information was information sought by the defendant as part of his campaign and, as such, the fact that the plaintiffs no longer pursue the case based on the defendant having received confidential information does not change their position. 

Summary of Findings

  1. [217]
    There are a number of very concerning issues in relation to the cost statements that have been issued on behalf of the plaintiffs, including:
    1. that the plaintiffs’ solicitor, partner of the firm who has day-to-day carriage of the matter with another partner, signed off the cost statement without apparently checking it in any detail, relying on the cost assessor;
    2. the first cost statement of $1.1 million for two applications, which each took less than a day, contained glaring errors, including the charging of 160% of counsel’s fees;
    3. that a second cost statement was issued for some $800,000 following the defendant raising initial issues in a letter of 3 October 2023 about the cost statement in relation to counsel’s fees;
    4. that the amended cost statement does not mark-up the amendments made to the cost statement;
    5. , the amended costs statement appears to charge 90% of counsel’s fees, which does not accord with no order made by the court and breaks it up the cost three per statements providing to 30 percent of counsel’s fees in one and 60 percent of counsel’s fees in another;
    6. includes work in relation to further and better particulars which is not encompassed in any order;
    7. the plaintiffs’ solicitors instructed the assessor that costs be assessed on the basis of them being “front loaded” somewhat, given the nature of the relief sought and the technical nature of the arguments and asserting, for example, that the plaintiffs were required to review a large volume of material, which they sought to keep confidential, in order to make the applications.  It is unclear how that could be justified, particularly where the applications included the plaintiffs seeking be relieved of making full disclosure and deferring the provision of particulars and disclosure;
    8. while there was an offer made to settle the costs before it went to cost assessment, it was for an amount of $420,603.72.[85] That letter of offer was greeted, not unsurprisingly, with a response asking how costs of $844,945.79, in respect of one of the applications, could be justified.[86]  That response which was met by a letter from the plaintiffs’ solicitors which did not explain the justification for the amount of costs but instead invited the defendant to make a counter-offer or advise that they were going to make an application for the stay of a cost order;[87] and
    9. the argument which was the subject of the cost order of 29 July 2021 had included arguments in relation to the confidentiality of particulars in [66(b)] of the statement of claim, which were not delivered as ordered by the court and the allegation ultimately was deleted from the statement of claim.
  2. [218]
    The defendant wished to cross-examine Mr Wilson, but Mr Wilson was not available for cross-examination.  He subsequently was not available due to a medical condition.  However, on the third day of the hearing, when he was no longer unwell, the plaintiffs again sought to cross-examine him in relation to his certification of the cost statement and his instructions to counsel as to the adequacy of disclosure from Downer.  That was opposed by the plaintiffs on the basis that it went beyond the scope of matters raised in the application and, otherwise, the material in relation to Downer would be material that was privileged.  The defendant did not pursue the application to cross-examine Mr Wilson, but submitted that they had given the opportunity to Mr Wilson to respond, and it had not been taken up.  Given the issues that arose in relation to the cost statement and the errors within that statement, while Mr Wilson had provided an explanation of it in his affidavit, he was not available to give any explanation by way of cross-examination to assist the plaintiffs’ case in relation to points which appeared to be matters which the defendant wished to fairly raise.  Mr Dowd did make himself available for cross-examination.  Mr Dowd gave evidence, however, he was not responsible for any detailed review of the cost statement.
  3. [219]
    The key point about the material change of circumstance contended by the plaintiffs is in relation to the abandonment of the breach of confidence case.  This application was dealing with disclosure by the plaintiffs, not by the defendant, although it relevantly related in part to disclosure obligations in respect of the causes of action alleging the defendant had received and misused confidential information. However, the allegation that   Adani and Carmichael Rail Confidential Information in [5] and [21] was confidential were not admitted and remains in issue in the proceedings at least in relation to the “inducing breach of contract” case. As such some disclosure in that respect would still have to be made with or without the breach of confidence causes of action. The abandonment of the breach of confidence allegations did not render the applications pointless. 
  4. [220]
    The subsequent deletion of [66(b)] from the statement of claim, which was the subject of argument in the application before me, does not constitute a material change of circumstance. It was, in the context of the application, a very small part of the argument, albeit one that had to be addressed by me in the reasons for judgement.
  5. [221]
    The plaintiffs’ applications before Callaghan J dealt with the application for three orders in relation to particulars being provided by example, that there be a confidentiality regime in relation to the confidential particulars and that there be a deferral of any further particulars pending disclosure by the defendant. Some of those particulars did relate to confidential information said to have been received by the defendant.[88] At the time, however, particulars had been requested by the defendant, quite properly.
  6. [222]
    While particulars pertaining to the case of breach of confidence would not have had to been provided, particulars pertaining to other paragraphs of the statement of claim were also the subject of the application. At the time of both applications, the plaintiffs informed the Court that they could not identify the relevant confidential information without disclosure.[89]
  7. [223]
    The defendant also made two cross-applications for particulars which were unsuccessful.
  8. [224]
    It is self-evident that had the breach of confidence cases never been included in the statement of claim, the scope of the applications would have been different. However, given they dealt with allegations of a broader nature and, at the time of the applications, the plaintiffs were relying on inferences from the various statements of the defendant as to the nature of the “Dob In” campaigns and Infiltration claims to support its pleaded case and were relying on disclosure to identify specific confidential information, the  subsequent abandonment of the breach of confidence case was not, in my view, a material change of circumstance justifying a new order. 
  9. [225]
    The second argument of the defendant is one which is novel insofar as it raises the question as to whether the nature of the cost statements enliven court’s power to exercise a discretion to set aside cost orders which are unfair and materially unjust. Although there was reference in Telstra Corporation Ltd v Ivory to it being “manifestly unjust if the judgment were allowed to stand” that was in the context of a judgment being found to rest on assumptions that were false. As to that, the defendant’s counsel, Mr Hodge KC, candidly stated that it was a novel approach without support of authority.  It is not necessary for me to decide whether there is a power because I do not consider the defendant has shown the costs orders are unfair and materially unjust.  The defendant has not shown that the costs orders of themselves were unjust and unreasonable. They were based on the fact that the plaintiffs enjoyed a degree of success in those applications which were opposed by the defendant. The defendant has not shown the factual underpinning of the applications were baseless.
  10. [226]
    The relevant criticisms really are directed to the enforcement of the costs orders rather than the making of the orders. As set above there is a basis for such criticisms to be made.
  11. [227]
    As to that submission, while there is an inherent power of the court to control its proceedings, I am not persuaded that the court could intervene to set aside an order which had not been appealed and where the injustice arises from how it is sought to be enforced.  There is a comprehensive system provided for under the rules for challenging cost assessments.  On present evidence, I do not have a sufficient basis to conclude that the solicitors involved have, in the way they have set about instructing the cost assessor to undertake the cost assessor, acted in a way to use the order as an instrument of abuse of process.
  12. [228]
    However, the cost statements are drawn in a way which is oppressive for any party to have to examine and unravel in order to properly oppose or challenge the costs being claimed.  While a party is entitled to fruits of an action, in this case a cost order, requiring the defendant to engage in such an exercise, at this stage of proceeding, would be oppressive. The costs statements, on their face, clearly do not accord with the orders of the court, such as the percentage of counsel’s fees claimed and the claiming of costs for work that was not encompassed within either of the order of myself of Callaghan J, an example of which is further and better particulars. They are of extraordinary length and complexity such that it is difficult to discern the basis upon which they have been calculated. I infer from the errors apparent on the face of them that they have not been properly reviewed by the plaintiffs’ solicitors and too much reliance has been placed on a costs assessor. Further, the amendments to the cost statements have not been marked-up, which inevitably will result in a protracted exercise and further litigation. The amount of costs claimed also appears, arguably, to be disproportionate to costs that could be properly claimed on such an application, but that is not a matter which can be discerned in the present case.
  13. [229]
    There is no doubt that the conduct of the plaintiffs in relation to the costs statements is unsatisfactory even though the plaintiffs were entitled to costs under the orders made. The conduct is not consistent with rule 5 of the UCPR. I infer that the plaintiffs have not through their solicitors sought to ensure that the costs statements provided were accurate. Nor have they sought to provide any detailed explanation to the defendants but rather have relied on the costs process which places the onus on the defendant once the costs statements are delivered. The present state of the evidence of the plaintiffs’ conduct and the errors in the costs statement while unsatisfactory does not satisfy me that I should infer that the plaintiffs knew that the costs statements were inaccurate or were indifferent to its inaccuracy, such that I would infer that they have sought to use the court’s processes in relation to the assessment of costs to bring unjustifiable pressure on the defendant. The plaintiffs’ solicitors did seek to raise some of the complaints made by the defendant’s solicitors with the costs assessor and address the question of the mischarging of counsel’s fees and did reduce the costs assessment by $300,000. While they did not provide any detailed explanation of the amount of the costs assessed they did raise the possibility of the defendant seeking a stay.
  14. [230]
    There is no suggestion that a corporation of the size of Adani could not carry the costs until the finalisation of this litigation although some prejudice will be suffered by the delay in the costs process. There will however be costs to which the defendant is entitled as a result of costs thrown away by the amendments to the statement of claim. In my view, it will be too disruptive to this proceeding and oppressive for the defendant to have to go through the lengthy and expensive exercise of analysing each and every entry of the hundreds of pages of the cost statement in order to respond and then undertake a process to challenge those cost assessments, which themselves could well be disruptive in the context of these proceedings.  The appropriate order is to stay the order until the determination of the proceeding or earlier order. 
  15. [231]
    Given the plaintiffs have “front loaded” the costs for the purposes of carrying out the application, if those costs are ultimately found to be justified, deferring the question of the costs order and its consideration until the end of the proceedings will have the added advantage of allowing the cost assessor to ensure there is no duplication of costs in that regard. 

Stay of proceedings

  1. [232]
    The defendant seeks to permanently stay the proceedings as an abuse of process or strike the proceedings and not permit liberty to replead.
  2. [233]
    A permanent stay is only granted in an exceptional circumstance, “when the interests of the administration of justice so demand”.[90]
  3. [234]
    The question of whether conduct of proceedings can be found to be an abuse of process was considered by the High Court in UBS AG v Tyne:[91]

“Whether conduct of this description rises to the level of an abuse of the processes of the court is a determination that requires consideration of all the circumstances. As Lord Bingham of Cornhill explained, that consideration requires the court to make:

‘a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.’”

  1. [235]
    The onus lies on the defendant to satisfy the court that there is an abuse of process, an onus which has been described as a “heavy one”.[92]  In Willmot v Queensland, the court held:[93]

“The extreme step of granting a permanent stay demands recognition that the question of whether a trial will necessarily be unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process admits of only one correct answer. The evaluative inquiry in each case is unique and highly fact-sensitive. The correct answer in each case turns on its own facts and requires separate consideration of each claim - its nature, content, and the available evidence.” (footnotes omitted).

  1. [236]
    If a party brings proceedings for an illegitimate purpose, the proceedings will be stayed.[94] In Williams v Spautz, the plurality said:[95]

“To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event.”

  1. [237]
    The defendant submits that the Court must also consider rule 5 of the UCPR in the context of the present application,[96] which provides:
  1. “(1)
    The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
  1. (2)
    Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
  1. (3)
    In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
  1. (4)
    The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.”
  1. [238]
    The defendant contends there are four particular circumstances which must be considered:
    1. the abandonment of the causes of action involving allegations that the defendant has received and misused Adani and Carmichael Confidential Information;
    2. the deficiencies in the FASOC which have been the subject of the strike out applications;
    3. the plaintiffs’ changing position on issues of causation and loss in relation to Downer in light of the public statement made in December 2017 by Adani which was said to be untrue; and
    4. the plaintiffs’ conduct in relation to the costs statements.
  2. [239]
    Both parties provided detailed submissions as to the law. While there were some points of disagreement as to the law, they were not the subject of oral submissions. In any event it is unnecessary given my findings to resolve those issues.
  3. [240]
    I have addressed each of these matters in the context of the other applications made. As Mr Hodge KC submitted, the question of whether the court would stay the proceedings for abuse of process or strike out the proceedings with no liberty to proceed is significantly influenced by the court’s attitude to the court’s view in relation to the strikeout application.
  4. [241]
    As to the first matter, I do not consider that the plaintiffs’ conduct in bringing, and then abandoning, these claims suggests that the commencement and conduct of the proceeding involves the plaintiffs using the court’s compulsory powers to investigate the availability of claim against the defendant and to restrict the defendant’s freedom to engage in legitimate public debate in relation to the challenge of climate change. I have discussed this matter in detail above, which I will not recanvas, but, in short, it is for the following reasons:
    1. I have not found that the pleading of the claim was an abuse of process in and of itself. There was a factual basis upon which the claims could be pleaded, but the success of the claims depended on the plaintiffs obtaining sufficient evidence to be able to prove the claim;
    2. the plaintiffs did make clear they could only plead a case on the basis of the defendant’s alleged admissions in public statements and inferences, and could not identify specifically the confidential information until after disclosure in the applications before me and Callaghan J. No application was made by the defendant in light of those concessions by the plaintiffs to strike out the cause of action and the matters raised in this application were only raised for the first time upon the abandonment of the claim;
    3. The plaintiffs in their submissions have provided reasons for their withdrawal which do not suggest that the proceeding was instituted as a fishing expedition; and
    4. Given the actions were in respect of the use and alleged misuse of confidential information by the defendant, the proceedings did not restrict his freedom to engage in legitimate public debate, nor am I satisfied that was the purpose of the proceedings in all of the circumstances.
  5. [242]
    As to the second matter, I have found deficiencies in the pleading of the FASOC and struck out parts of it, which have been discussed in detail above. A number of the criticisms while validly made are technical matters of pleading. I am not satisfied the plaintiffs are unable to formulate a proper pleading of their alleged claims such that it would be appropriate to refuse liberty to replead. While the proceedings have been amended by the plaintiffs on a number of occasions and the proceedings have been on foot for a number of years, this is the first time that the defendant has sought to challenge whether the FASOC discloses a reasonable cause of action or otherwise should be struck out. A number of the criticisms in relation to the FASOC have been present in previous versions of the statement of claim to which the defendant has filed defences, assisted by solicitors and experienced Counsel.  
  6. [243]
    I am not satisfied that the defendant has shown in all the circumstances that the proceedings have been brought forward to harass the defendant, bring unjustifiable oppression to bear upon him and intimidate him from participating in legitimate public discourse. Whether the plaintiffs are going to be successful at trial is a matter yet to determined. However, the history of these proceedings which have been discussed in earlier judgements of this court and the matters that have been raised before me, do not, support a finding that the plaintiffs have sought to institute these proceedings or use the court’s procedures for an improper purpose rather than seek relief that is the subject of the FASOC.
  7. [244]
    As to the third matter, I have discussed the question of the allegations in relation to Downer above. I am not presently satisfied that the plaintiffs are incapable of pleading a proper claim and the claim is “illusory”, notwithstanding the criticisms that have been made of the pleadings, a number of which I have upheld and factual weaknesses which have become apparent.
  8. [245]
    As to the fourth matter, in relation to the conduct of the costs statement, I have determined to stay the costs order until further order or the determination of the proceedings. Whether the conduct of the plaintiffs and, particularly, the conduct of the plaintiffs’ solicitors could be impugned on the basis of an abuse of process, would require a detailed analysis of the cost statement in order to draw a conclusion. There is an insufficient basis for me to find that the plaintiffs have sought to bring unjustifiable pressure upon the defendant by delivering the cost statements, but I have found, as set out above, that in the circumstances it would be oppressive for the defendant to have to deal with the cost statements while these proceedings are ongoing.
  9. [246]
    Having considered all of the matters raised not only individually but cumulatively, I do not find the proceedings are an abuse of process justifying the striking out of the proceeding or a permanent stay of the proceeding.
  10. [247]
    What these applications do highlight is the need for the parties to be set on the pathway of getting the matter to trial as quickly as possible. I intend to list the matter before a supervised case list judge so directions may be made, and a trial date set at the earliest opportunity.

Orders

  1. [248]
    I make the following orders:
  1. 1.
    The following paragraphs of the FASOC are struck out with liberty to replead:
  1. a.
    [46] to [57A];
  1. b.
    [63], [65] and [66];
  1. c.
    [67] to [73A]; and
  1. d.
    [78] to [82].
  1. 2.
    The plaintiffs are to file and serve a second further amended statement of claim by 14 February 2025.
  1. 3.
    The plaintiffs’ solicitor is to file and serve an affidavit deposing that it has made any necessary investigations required to replead [63] and [66], and is satisfied that there is a reasonable cause of action in relation to Downer and that they have provided the second further amended statement of claim to their clients to provide instructions that they have reviewed the second further amended statement of claim and have instructed that it can be filed in that form.
  1. 4.
    The enforcement of:
  1. a.
    paragraph [7] of the Orders made in this proceeding by Brown J dated 29 July 2021; and
  1. b.
    paragraphs [11(a)], [11(b)] and [11(c)] of the Orders made in this proceeding by Callaghan J dated 8 March 2022,
  1. is stayed until the determination of the proceeding or earlier order.
  1. 5.
    The amended application is otherwise dismissed.
  1. 6.
    The parties have liberty to apply for any further order that may be required to give effect to Order 4.
  1. 7.
    The parties are to provide submissions as to costs by 31 January 2025.
  1. 8.
    The Resolution Registrar, in consultation with the supervised case list manager, is to list this matter for review at the earliest available date after 14 February 2025 before a supervised case list judge for directions.

Footnotes

[1]  [2020] QSC 275.

[2]  [2021] QSC 162.

[3]  [2017] 1 Qd R 549 at 599 [38]-[39].; See also Sedgewick Australia Pty Ltd v JLOC Super Pty Ltd [2024] QCA 218 at [12].

[4]  See FASOC at [67]-[73A] and [78]-[82].

[5]  [2017] 1 Qd R 549 at 599 at 567-8 [69]-[75].

[6] Central Exploration Pty Ltd v Zuks [2020] WASC 46 at [80]-[81].

[7]  “Targeted Contractors” is pleaded in paragraph [41(b)] to refer to companies, organisations and others that are engaged by, or negotiating with, the plaintiffs to perform mine or rail work, including contractors, and it also includes those who are sub-contracted to any company or organisation directly contracted to perform work for the plaintiffs.

[8]  See paragraphs [67] and [78] of the FASOC.

[9] Lee v Abedian [2017] 1 Qd R 549 at 570 [80(d)] per Bond J, citing with approval Ryan J in Elliott v Seymour [1999] FCA 976 at [97].

[10] Odtojan v Condon [2023] NSWCA 129 at [26]-[30] per Leeming and Kirk JJA.

[11]  [2017] 1 Qd R 549 at 567 [71].

[12]  [2017] 1 Qd R 549 at 570 [78]. 

[13]  See paragraphs [78] and [79(b)(ii)] of the FASOC.

[14]  [2017] 1 Qd R 549 at 567 [73], with Bond J’s original emphasis replicated.

[15]  [2017] 1 Qd R 549 at 567 [73], with Bond J’s original emphasis replicated.

[16]  See eg paragraphs [60(c)(ii)], [60(d)(ii)] and [60(e)(iii)] of the FASOC.

[17] McKernan v Fraser (1931) 46 CLR 343 at 362 per Dixon J, with whom Rich and McTiernan JJ agreed; Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 445 per Viscount Simon LC.

[18]  [2017] 1 Qd R 549 at 570 [78].

[19]  [2017] 1 Qd R 549 at 567 [70].

[20]  See paragraph [43(a)] of the FASOC.

[21]  See paragraph [43(b)] of the FASOC.

[22]  [2017] 1 Qd R 549 at 571 [81(b)].

[23]  [2017] 1 Qd R 549 at 571 [81(c)].

[24]  [2017] 1 Qd R 549 at 568 [75] and 574 [85].

[25]  [2017] 1 Qd R 549 at 571 [81(f)].

[26]  [2017] 1 Qd R 549 at 571 [81(b)].

[27]  See paragraph [60] of the FASOC.

[28] Construction, Forestry, Mining & Energy Union v Boral Resources (VIC) Pty Ltd (2014) 45 VR 571 at 575-8 [23]-[36] per Maxwell P, Neave, Redlich and Beach JJA and Kaye AJA; Adani Mining Pty Ltd v Pennings [2020] QSC 275 at [32] per Martin J.

[29] Yap v Matic [2022] WASC 181 at [132] per Solomon J, quoting Parker J in Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 87 at 98.

[30]  (2018) 131 ACSR 27 at 51 [146].

[31]  Affidavit of KL Peacock affirmed 28 January 2024 at KLP-67.

[32]  Affidavit of KL Peacock affirmed 28 January 2024 at KLP-60.

[33]  Affidavit of C Wilson filed 2 November 2023 at [34].

[34]  Affidavit of C Wilson filed 2 November 2023 at [29].

[35]  Affidavit of C Wilson filed 2 November 2023 at [38].

[36]  Affidavit of DJ Dowd filed 2 November 2023 at [15]-[17].

[37]  Affidavit of DJ Dowd filed 2 November 2023 at [15]-[17].

[38]  [2017] FCA 1397 at [27]-[28], which was referred to by Flanagan J in Chan v Macarthur Minerals Ltd [2019] QSC 143 at [43].

[39]  Affidavit of C Wilson affirmed 25 August 2020 at [92], CW-6.

[40]  Affidavit of C Wilson affirmed 25 August 2020 at [92], CW-6.

[41]  [2022] WASC 181 at [130].

[42]       Daebo Shipping Co Ltd v The Ship Go Star (2012) 207 FCR 220 at 240 [88]-[90] per Keane CJ, Rares and Besanko JJ (not affected by grant of special leave), as summarised by Bond J in AECI Australia Pty Ltd v Convey [2020] QSC 207 at [77]; Civic Video Pty Ltd v Paterson [2016] WASCA 69 at [30] per Newnes JA, with whom McLure P and Corboy J agreed. See also the recent summary of principles in Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 8) [2022] FCA 1404 at [210] per Beach J.

[43]  (2012) 207 FCR 220 at 240, citing Allstate Life Insurance Company v Australia & New Zealand Banking Group Ltd (1995) 58 FCR 26 at 43 per Lindgren J, with whom Lockhart and Tamberlin JJ agreed.

[44]  See paragraphs [46] to [51A] of the FASOC.

[45]  See paragraphs [52] to [57A] of the FASOC.

[46]  (2012) 293 ALR 272 at 281[42].

[47]  (2012) 293 ALR 272 at 281-2 [46].

[48] Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261 at 269.

[49]  [2022] WASC 181 at [116].

[50]  [2022] WASC 181 at [177].

[51]   See [2022] WASC 181 at [116]-[117] and [119].

[52]  [2001] 1 Qd R 634 at 642-3 [28].

[53]  [1966] 1 WLR 691 at 703.

[54]  [2016] FCA 674.

[55] Lee v Abedian [2017] 1 Qd R 549 at 559 [38] per Bond J; Parbery v QNI Metals Pty Ltd (2018) 131 ACSR 27 at 51 [146] per Jackson J.

[56]  [2024] QCA 218 at [13] per Bond J, with whom Callaghan and Crowley JJ agreed.

[57] Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272 at 281 [42] per Bennett J.

[58]  (2022) 12 QR 67 at 98 [124].

[59]  (2022) 12 QR 67 at 98 [125].

[60]  UCPR r 367(2).

[61] Owen v Menzies [2010] QCA 137 at 5 per Muir JA, with whom McMurdo P and Holmes JA agreed.

[62]  Paragraphs 2(c)(iii), 2(c)(iv) and 2(d), as extracted above.

[63] Adani Mining Pty Ltd v Pennings [2020] QSC 249.

[64] Adani Mining Pty Ltd v Pennings [2020] QSC 275 at [23].

[65]  [2020] QSC 275 at [24].

[66]  [2020] QSC 275 at [26].

[67]  [2020] QSC 275 at [31].

[68]  [2020] QSC 275 at [46].

[69]  [2020] QSC 275 at [34].

[70]  See paragraph [63(h)(iii)] of the FASOC.

[71]  [2020] QSC 275 at [48].

[72]  Affidavit of C Wilson affirmed 1 November 2023 at [42], CW-11.

[73] Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at 261 [67] per Dowsett, Foster and Yates JJ.

[74]  [2020] QSC 275 at [44]-[45].

[75]  See sub-paragraphs (viii) and (ix) of the further particulars to paragraph [47] of the FASOC.

[76] Adani Mining Pty Ltd v Pennings [2020] QSC 275 at [20]-[21].

[77]  [2009] QSC 287 at [36].

[78] Telstra Corporation Ltd v Ivory [2008] QSC 123 at [66]-[67] per Lyons J.

[79] AMA v CDK [2009] QSC 287 at [36].

[80]  [2017] QSC 22.

[81]  [2017] QSC 22 at [1].

[82]  [2017] QSC 22 at [4].

[83]  [2017] QSC 22 at [65].

[84]  Affidavit of C Wilson affirmed 1 November 2023 at [22], CW-9.

[85]  Affidavit of KL Peacock affirmed 2 February 2022 at [6], KLP-10.

[86]  Affidavit of KL Peacock affirmed 2 February 2022 at [7], KLP-11.

[87]  Affidavit of KL Peacock affirmed 2 February 2022 at [8], KLP-12.

[88] Adani Mining Pty Ltd v Pennings [2021] QSC 343 at [10] and [17].

[89]  See eg Adani Mining Pty Ltd v Pennings [2021] QSC 162 at [44], [48] and [82]; Adani Mining Pty Ltd v Pennings [2021] QSC 343 at [17] and [28]-[30] and [35].

[90] Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218 at [71] 233-4.

[91]  (2018) 265 CLR 77 at 85 [7] per Kiefel CJ, Bell and Keane JJ, citing Johnson v Gore Wood & Co [2002] 2 AC 1 at 31.

[92] Williams v Spautz (1992) 174 CLR 509 at 529.

[93]  [2024] HCA 42 at [17] per Gageler CJ, Gordon, Jagot and Beech-Jones JJ.

[94] Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132 at [20].

[95]  (1992) 174 CLR 509 at 526 per Mason CJ, Dawson, Toohey and McHugh JJ.

[96]  In the context of liberty to replead, discussed by Jackson J in Mio Art Pty Ltd v BMD Holding Pty Ltd [2014] QSC 55 at [131]-[132].

Close

Editorial Notes

  • Published Case Name:

    Adani Mining Pty Ltd v Pennings

  • Shortened Case Name:

    Adani Mining Pty Ltd v Pennings

  • MNC:

    [2024] QSC 302

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    06 Dec 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adani Mining Pty Ltd v Pennings [2020] QSC 249
2 citations
Jump To
Cite 1 - [2020] QSC 249
Cite 2 - [2020] QSC 249
Adani Mining Pty Ltd v Pennings [2020] QSC 275
12 citations
Jump To
Cite 1 - [2020] QSC 275
Cite 2 - [2020] QSC 275
Cite 3 - [2020] QSC 275
Cite 4 - [2020] QSC 275
Cite 5 - [2020] QSC 275
Cite 6 - [2020] QSC 275
Cite 7 - [2020] QSC 275
Cite 8 - [2020] QSC 275
Cite 9 - [2020] QSC 275
Cite 10 - [2020] QSC 275
Cite 11 - [2020] QSC 275
Cite 12 - [2020] QSC 275
Adani Mining Pty Ltd v Pennings [2021] QSC 162
3 citations
Jump To
Cite 1 - [2021] QSC 162
Cite 2 - [2021] QSC 162
Cite 3 - [2021] QSC 162
Adani Mining Pty Ltd v Pennings [2021] QSC 343
3 citations
Jump To
Cite 1 - [2021] QSC 343
Cite 2 - [2021] QSC 343
Cite 3 - [2021] QSC 343
AECI Australia Pty Ltd v Convey [2020] QSC 207
1 citation
Jump To
Cite 1 - [2020] QSC 207
Allstate Life Insurance v ANZ Banking Group (1995) 58 FCR 26
1 citation
Jump To
Cite 1 - (1995) 58 FCR 26
AMA v CDK [2009] QSC 287
3 citations
Jump To
Cite 1 - [2009] QSC 287
Cite 2 - [2009] QSC 287
Cite 3 - [2009] QSC 287
Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2012] FCA 758
1 citation
Jump To
Cite 1 - [2012] FCA 758
Apotex v Servier (No. 2) (2012) 293 ALR 272
4 citations
Jump To
Cite 1 - (2012) 293 ALR 272
Cite 2 - (2012) 293 ALR 272
Cite 3 - (2012) 293 ALR 272
Cite 4 - (2012) 293 ALR 272
Central Exploration Pty Ltd v Zuks [2020] WASC 46
1 citation
Jump To
Cite 1 - [2020] WASC 46
Chan v Macarthur Minerals Ltd [2019] QSC 143
1 citation
Jump To
Cite 1 - [2019] QSC 143
Civic Video Pty Ltd v Paterson [2016] WASCA 69
1 citation
Jump To
Cite 1 - [2016] WASCA 69
Construction Forestry Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2014) 45 VR 571
1 citation
Jump To
Cite 1 - (2014) 45 VR 571
Crofter Handwoven Harris Tweed Co Ltd v Vetch (1942) AC 435
1 citation
Jump To
Cite 1 - (1942) AC 435
Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156
1 citation
Jump To
Cite 1 - [2012] FCAFC 156
Daebo Shipping Company Ltd v The Ship Go Star (2012) 207 FCR 220
3 citations
Jump To
Cite 1 - (2012) 207 FCR 220
Cite 2 - (2012) 207 FCR 220
Cite 3 - (2012) 207 FCR 220
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
1 citation
Jump To
Cite 1 - (1949) 78 CLR 62
Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 8) [2022] FCA 1404
1 citation
Jump To
Cite 1 - [2022] FCA 1404
Elliott v Seymour [1999] FCA 976
1 citation
Jump To
Cite 1 - [1999] FCA 976
Emerald Construction Co. v Lowthian (1966) 1 WLR 691
2 citations
Jump To
Cite 1 - (1966) 1 WLR 691
Cite 2 - (1966) 1 WLR 691
Franchise Management Pty Ltd v Cigarette & Gift Warehouse (Franchising) Pty Ltd (No 2) [2016] FCA 674
2 citations
Jump To
Cite 1 - [2016] FCA 674
Cite 2 - [2016] FCA 674
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
1 citation
Jump To
Cite 1 - (1964) 112 CLR 125
Johnson v Gore Wood & Co (2002) 2 AC 1
1 citation
Jump To
Cite 1 - (2002) 2 AC 1
Jonker v Thomas International Limited [2017] FCA 1397
2 citations
Jump To
Cite 1 - [2017] FCA 1397
Cite 2 - [2017] FCA 1397
Kestrel Coal Pty Ltd v Construction Forestry Mining and Energy Union[2001] 1 Qd R 634; [2000] QSC 150
3 citations
Jump To
Cite 1 - [2000] QSC 150
Cite 2 - [2001] 1 Qd R 634
Cite 3 - [2001] 1 Qd R 634
Lee v Abedian[2017] 1 Qd R 549; [2016] QSC 92
17 citations
Jump To
Cite 1 - [2016] QSC 92
Cite 2 - [2017] 1 Qd R 549
Cite 3 - [2017] 1 Qd R 549
Cite 4 - [2017] 1 Qd R 549
Cite 5 - [2017] 1 Qd R 549
Cite 6 - [2017] 1 Qd R 549
Cite 7 - [2017] 1 Qd R 549
Cite 8 - [2017] 1 Qd R 549
Cite 9 - [2017] 1 Qd R 549
Cite 10 - [2017] 1 Qd R 549
Cite 11 - [2017] 1 Qd R 549
Cite 12 - [2017] 1 Qd R 549
Cite 13 - [2017] 1 Qd R 549
Cite 14 - [2017] 1 Qd R 549
Cite 15 - [2017] 1 Qd R 549
Cite 16 - [2017] 1 Qd R 549
Cite 17 - [2017] 1 Qd R 549
Lee v Abedian [2017] QSC 22
5 citations
Jump To
Cite 1 - [2017] QSC 22
Cite 2 - [2017] QSC 22
Cite 3 - [2017] QSC 22
Cite 4 - [2017] QSC 22
Cite 5 - [2017] QSC 22
Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261
1 citation
Jump To
Cite 1 - (1997) 72 FCR 261
McKernan v Fraser (1931) 46 CLR 343
1 citation
Jump To
Cite 1 - (1931) 46 CLR 343
Mio Art Pty Ltd v BMD Holdings Pty Ltd [2014] QSC 55
1 citation
Jump To
Cite 1 - [2014] QSC 55
Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218
1 citation
Jump To
Cite 1 - (2019) 100 NSWLR 218
Odtojan v Condon [2023] NSWCA 129
1 citation
Jump To
Cite 1 - [2023] NSWCA 129
Owen v Menzies [2010] QCA 137
1 citation
Jump To
Cite 1 - [2010] QCA 137
Parbery v QNI Metals Pty Ltd (2018) 131 ACSR 27
3 citations
Jump To
Cite 1 - (2018) 131 ACSR 27
Cite 2 - (2018) 131 ACSR 27
Cite 3 - (2018) 131 ACSR 27
Parbery v QNI Metals Pty Ltd (No 9) [2018] QSC 240
1 citation
Jump To
Cite 1 - [2018] QSC 240
Patrick Stevedores Operations Pty Ltd and Anor v Maritime Union of Australia and Ors (1998) 82 IR 87
1 citation
Jump To
Cite 1 - (1998) 82 IR 87
Resort Lifestyle Developments Pty Ltd v NGI Savannah Living Communities Pty Ltd(2022) 12 QR 67; [2022] QSC 194
4 citations
Jump To
Cite 1 - [2022] QSC 194
Cite 2 - (2022) 12 QR 67
Cite 3 - (2022) 12 QR 67
Cite 4 - (2022) 12 QR 67
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
1 citation
Jump To
Cite 1 - (2011) 217 FCR 238
Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd [2024] QCA 218
2 citations
Jump To
Cite 1 - [2024] QCA 218
Cite 2 - [2024] QCA 218
Telstra Corporation Ltd v Ivory [2008] QSC 123
1 citation
Jump To
Cite 1 - [2008] QSC 123
UBS AG v Tyne [2018] HCA 45
1 citation
Jump To
Cite 1 - [2018] HCA 45
UBS AG v Tyne (2018) 265 CLR 77
2 citations
Jump To
Cite 1 - (2018) 265 CLR 77
Cite 2 - (2018) 265 CLR 77
Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132
1 citation
Jump To
Cite 1 - (2021) 271 CLR 132
Williams v Spautz (1992) 174 CLR 509
3 citations
Jump To
Cite 1 - (1992) 174 CLR 509
Cite 2 - (1992) 174 CLR 509
Cite 3 - (1992) 174 CLR 509
Williams v Spautz [1992] HCA 34
1 citation
Jump To
Cite 1 - [1992] HCA 34
Willmot v Queensland [2024] HCA 42
2 citations
Jump To
Cite 1 - [2024] HCA 42
Cite 2 - [2024] HCA 42
Yap v Matic [2022] WASC 181
6 citations
Jump To
Cite 1 - [2022] WASC 181
Cite 2 - [2022] WASC 181
Cite 3 - [2022] WASC 181
Cite 4 - [2022] WASC 181
Cite 5 - [2022] WASC 181
Cite 6 - [2022] WASC 181

Cases Citing

Case NameFull CitationFrequency
Adani Mining Pty Ltd v Pennings [2025] QSC 624 citations
1

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