IN THE FEDERAL COURT OF AUSTRALIA) ) VICTORIA DISTRICT REGISTRY ) No VG 411 of 1994 ) GENERAL DIVISION ) BETWEEN: TRADE PRACTICES COMMISSION (Applicant) AND: MOBIL OIL AUSTRALIA LIMITED ACN 004 052 984 (First Respondent) AND: BP AUSTRALIA LIMITED ACN 004 085 616 (Second Respondent) AND: THE SHELL COMPANY OF AUSTRALIA LIMITED ACN 004 610 459 (Third Respondent) AND: NOEL ROBERT CONSTANTINE (Fourth Respondent) JUDGE MAKING ORDER:Ryan J PLACE: Melbourne DATE: 9 September 1996 MINUTES OF ORDER THE COURT ORDERS: 1. That the amended statement of claim filed herein on 12 December 1994 be struck out. 2. That the applicant have leave to file and serve within 28 days a further amended statement of claim preserving such of the amendments embodied in the draft pleading filed herein on 3 April 1995 and incorporating such further amendments as the applicant may be advised having regard to the reasons for judgment published this day. 3. That liberty be reserved to any party to apply on not less than 72 hours notice in writing to the other parties. 4. That the respondents' costs of and incidental to the several motions on notice dated 23 January 1995 be reserved. 5. That the applicant pay the costs thrown away (if any) of each of the respondents as a result of the further amendment allowed by paragraph 2 of this order. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) ) VICTORIA DISTRICT REGISTRY ) No VG 411 of 1994 ) GENERAL DIVISION ) BETWEEN: TRADE PRACTICES COMMISSION (Applicant) AND: MOBIL OIL AUSTRALIA LIMITED ACN 004 052 984 (First Respondent) AND: BP AUSTRALIA LIMITED ACN 004 085 616 (Second Respondent) AND: THE SHELL COMPANY OF AUSTRALIA LIMITED ACN 004 610 459 (Third Respondent) AND: NOEL ROBERT CONSTANTINE (Fourth Respondent) CORAM: Ryan J PLACE: Melbourne DATE: 9 September 1996 REASONS FOR JUDGMENT By para. 17 of its amended statement of claim in these proceedings the applicant, formerly the Trade Practices Commission now the Australian Consumer and Competition Commission ("the Commission"), has pleaded the existence of separate markets in the Sydney metropolitan area and the Melbourne metropolitan area for the supply of retail petroleum products by the respondents and other oil companies through their respective franchisees and commission agents or company managed sites ("CA sites") to members of the public and consumers residing in each of those areas. It is then alleged in paras. 18 to 23 in respect of the first respondent ("Mobil") that: 18. At all material times, Mobil:- (a) supplied petroleum products to its franchisees for on supply to the retail markets referred to in paragraph 17 hereof; (b) in so supplying petroleum products to its franchisees, provided price support services and facilities to its franchisees from time in the form of:- (i) rebates, allowances or discounts off the wholesale or rack price of petroleum products supplied to franchisees; (ii) reductions to its wholesale or rack prices of petroleum products supplied to franchisees; and/or (iii)other services and facilities; ("Mobil price support"). 19. From time to time during the period September 1991 - June 1992 and particularly when discount pricing was prevalent between retail suppliers of petroleum products in the markets referred to in paragraph 17 hereof, Mobil caused the Mobil CA Sites in such markets to increase or to maintain at existing levels the prices at which Mobil CA Sites sold retail petroleum products in the retail markets referred to in paragraph 17 hereof. PARTICULARS The Applicant refers to Schedules A1, A2, C1 & C2 hereof. Further particulars may be provided after discovery. 20. At or shortly after the time or times when Mobil took the step or steps referred to in paragraph 19 hereof, Mobil withdrew Mobil price support to its franchisees in such markets and/or caused its wholesale or rack price of petroleum products supplied to its franchisees in such markets to increase:- (a) which had the likely effect of causing such franchisees to increase their prices of retail petroleum products for supply in the retail markets referred to in paragraph 17 hereof to or towards a similar level of retail prices to that charged by franchisees of BP, Shell and other oil companies in the same markets at or about that time; (b) with the intention of causing and/or inducing franchisees to increase their prices of retail petroleum products for supply in the retail markets referred to in paragraph 17 hereof to or towards a similar level of retail prices to that charged by franchisees of BP, Shell and other oil companies in the same markets at or about that time. PARTICULARS The Applicant refers to Schedules B1, B2, D1 & D2 hereof. Further particulars may be provided after discovery. 21. The step or steps taken by Mobil, as referred to in paragraph 19 hereof had the effect of increasing, or maintaining at the existing levels, the prices at which Mobil CA Sites sold petroleum products to members of the public and/or consumers in the markets referred to in paragraph 17 hereof. 22. Further, the effect referred to in paragraph 21 hereof could not be maintained unless, inter-alia, BP and Shell increased the prices at which their CA Sites sold retail petroleum products to members of the public and/or consumers in the markets referred to in paragraph 17 hereof to a level the same as, or similar to, the level of prices at which Mobil CA Sites sold petroleum products to members of the public and/or consumers in those markets. 23. Further, the step or steps taken by Mobil as referred to in paragraph 20 hereof:- (a) had the effect of increasing the prices at which Mobil franchisees sold retail petroleum products to members of the public and/or consumers in the markets referred to in paragraph 17 hereof; but (b) would not be likely to continue to have the effect referred to in sub-paragraph (a) hereof if BP and Shell did not at or about the same time similarly increase or cause to be increased the prices at which their CA Sites and franchisees sold retail petroleum products to members of the public and/or consumers in the markets referred to in paragraph 17 hereof; and (c) would be likely to be detrimental to the financial interests of Mobil and its franchisees if:- (i) BP and Shell did not at or about the same time similarly increase or cause to be increased the prices at which their CA Sites and franchisees sold retail petroleum products to members of the public and/or consumers in the markets referred to in paragraph 17 hereof; and (ii) BP and Shell had not entered into a contract, arrangement or understanding with themselves and with Mobil pursuant to which if Mobil took the step or steps referred to in paragraphs 19 and 20 hereof BP and Shell would at or about the same time similarly increase or cause to be increased the prices at which their CA Sites and franchisees sold retail petroleum products to members of the public and/or consumers in the markets referred to in paragraph 17 hereof. Similar allegations are then made in paras. 24 to 29 in relation to the second respondent ("BP") and in paras. 30 to 35 in relation to the third respondent ("Shell"). The following paragraphs then appear under the sub-heading "Infringement of Section 45(2)(a)(ii)": 36. In or about 1991 and by the latest in or about September 1991, Mobil, BP and Shell made a contract, arrangement, or arrived at an understanding, which contained provisions that:- (a) each of Mobil, BP and Shell would inform each other in advance of the prices to which one or more of them proposed to increase the retail prices at which it or they (as the case may be) sold petroleum products from service station sites in the metropolitan area of Sydney and Melbourne operated by it or them as CA Sites; and (b) on being so informed by one or other of them that it or they (as the case may be) proposed to increase its or their retail prices, the other party or parties would increase, at about the same time to approximately the same level as the first mentioned party or parties, the retail prices at which petroleum products were sold from service station sites in the metropolitan areas of Sydney and Melbourne operated by that other party or parties as CA Sites; (c) on being so informed by one or other of them that that party or parties (as the case may be) proposed to increase its or their retail prices, the other party or parties would take steps to cause its or their franchisees to increase their retail prices to or towards a similar level of retail prices to that charged by franchisees of the firstmentioned party or parties in the same markets at or about that time by, inter-alia, withdrawing price support to its or their franchisees or by increasing its or their wholesale or rack prices to its or their franchisees. PARTICULARS The making of the contract or arrangement or the arriving at the understanding is constituted by the facts in paragraphs 3-35 and 39-50 and is to be inferred from the facts alleged in paragraphs 3-35 and 39-65 hereof. The Applicant is unable to presently provide further particulars at this stage. 37. The provisions of the contract, arrangement or understanding referred to in paragraph 36 hereof:- (a) are provisions to which Section 45A of the Act applies in that the provisions have or had the purpose, or have or were likely to have or had or were likely to have had the effect of fixing, controlling or maintaining the retail prices for petroleum products supplied by BP, Shell and Mobil in the markets referred to in paragraph 17 hereof whether directly through their CA Sites or indirectly through their franchisees; (b) further or alternatively, had the purpose, or would have had or been likely to have had the effect, of substantially lessening competition in the markets referred to in paragraph 17 hereof by causing retail prices for petroleum products in the markets referred to in paragraph 17 hereof to increase to levels and/or remain at levels in the markets that they would not otherwise rise to or have risen to or be sustained at if no such contract, arrangement or understanding had been entered into or implemented or carried into effect between Mobil, BP and Shell. 38. In the premises:- (a) the making of the contract, arrangement or the arriving at the understanding referred to in paragraph 36 hereof contravened and/or was in contravention of Section 45(2)(a)(ii) of the Act being contraventions of a kind referred to in Section 76(1)(a) of the Act; and (b) each of Mobil, BP and Shell contravened Section 45(2)(a)(ii) of the Act. Then under the heading "Specific Conduct of Mobil, BP & Shell Giving Effect to the Contract, Arrangement or Understanding" there first occurs an allegation in these terms in respect of communications in which the fourth respondent ("Constantine"), who is alleged to have been a director of BP and its General Manager, Retail, for Australasia, is said to have been involved: A. September 1991 39. At about 9.00am on 13 September 1991, Constantine had a meeting in Melbourne with James of Shell wherein James informed Constantine that:- (a) Shell had agreed to increase the prices at which it sold retail petroleum products from the Shell CA Sites in Sydney to allow reasonable dealer margins in Sydney effective on the following Tuesday, 17 September 1991; (b) Independents had discussed with Shell the possibility of an upward movement in posted prices with Shell on condition that the posted prices at the Shell CA Sites moved first. 40. During the afternoon of 13 September 1991, Constantine telephoned Mobil's Melbourne office and his call was put through to Plant who at that time had or assumed the responsibility of dealing with correspondence and other communications directed to Lee Rogers ("Rogers"), Mobil's Director of Marketing, while Rogers was visiting Papua New Guinea. Those paragraphs are followed by further allegations of communication between Constantine and one Plant, an officer of Mobil and of other, intercompany, communications between officers or employees of Mobil. Two of the latter communications are respectively identified as "the Harnett E- Mail" and the "Thomson E-Mail" and it is then alleged in para. 49: In accordance with the statements and the intention and purpose of the statements contained in the Harnett E-Mail and the Thomson E-Mail and as a consequence thereof:- (a) retail prices for the sale of petroleum products in the markets referred to in paragraph 17 hereof increased in the week beginning 16 September 1991; (b) on 17 September 1991, Shell moved its retail petroleum prices up at the Shell CA Sites in Melbourne; (c) on 19 September 1991, BP moved its retail petroleum prices up at the BP CA Sites in Sydney; (d) during the week beginning 16 September 1991, Mobil maintained its Mobil CA Sites' retail prices in the markets referred to in paragraph 17 hereof. PARTICULARS The Applicant refers to Schedules A1, A2, C1 and C2 annexed hereto setting out the price movements in the week beginning 16 September 1991 in the markets referred to in paragraph 17 hereof. Further communications are then alleged to have occurred in October 1991 and January, February and June 1992 and on other unspecified occasions between September 1991 and June 1992 between various officers, employees, dealers or other representatives of Mobil. On three of those occasions, being those alleged to have occurred in February, May and June 1992, it is pleaded that Mobil withdrew its price support to one of its dealers named Conroy, and as a consequence, Conroy increased his retail prices for petroleum products. Under the heading "Infringement of Section 45(2)(b)(ii)" the amended statement of claim alleges: 66. Further, in engaging in the conduct described in paragraphs 41-65 hereof and on each of the occasions therein set out, Mobil:- (a) gave effect to the provisions of the contract, arrangement or understanding referred to in paragraph 36 hereof, in contravention of Section 45(2)(b)(ii) of the Act, being contraventions of a kind referred to in Sections 76(1)(a) and 80(1)(a) of the Act; and (b) contravened Section 45(2)(b)(ii) of the Act. Paragraphs 67 and 68 contain corresponding allegations against BP arising out of the conduct alleged in paras. 39, 40, 41 and 49 and against Shell arising out of the conduct alleged in paras. 39 and 49. It is then pleaded in para. 70 that: Further or in the alternative, in engaging in the conduct described in paragraphs 36, 41-50 hereof, Mobil:- (a) aided, abetted, counselled or procured BP and Shell to engage in the said contraventions of the Act by BP and Shell referred to in paragraphs 38, 67 and 68 hereof; (b) induced or attempted to induce BP and Shell to engage in the said contraventions of the Act by BP and Shell referred to in paragraphs 38, 67 & 68 hereof; (c) was directly or indirectly knowingly concerned in or party to the said contraventions of the Act by BP and Shell referred to in paragraphs 38, 67 & 68 hereof; (d) conspired with BP and Shell to engage in the said contraventions of the Act by BP and Shell referred to in paragraphs 38, 67 & 68 hereof. Similar allegations are made in para. 71 against BP in respect of the conduct described in paras. 36, 39, 40, 41 and 49 and in para. 72 against Shell in respect of the conduct described in paras. 36, 39 and 49. Finally, allegations are made against Constantine of aiding and abetting, being knowingly concerned in or a party to, and conspiring to engage in, the contraventions of the Trade Practices Act pleaded in earlier paragraphs. On the basis of the allegations in the amended statement of claim, the Commission by its amended application seeks various declarations against each of the respondents and the imposition on them of pecuniary penalties. It also seeks certain injunctive relief against Mobil, BP and Shell. Each of the respondents has moved under O.11 r.16 of the Rules of this Court to strike out the amended statement of claim as not disclosing a cause of action. On behalf of BP and Constantine, Mr Goldberg QC, who appeared with Mr Shavin, pointed first to para. 19 which is mirrored by para. 25 in respect of BP and by para. 31 in respect of Shell. It is said that the allegation that Mobil "caused" sites to increase or maintain their prices states a conclusion rather than pleading a relevant fact. That vice is said to be compounded by the subsequent allegation in para. 20 that "Mobil took the step or steps referred to in para. 19 hereof" and the reference in para. 21 to the effect of the same "step or steps". No steps are identifiable on the face of para. 19 as they would have been, for example, if it had been pleaded that Mobil had instructed or requested its CA sites to increase or not to reduce their prices. As well, para. 20 contains as its first substantive allegation, the assertion that "Mobil withdrew Mobil price support to its franchisees". That excludes the withdrawal of price support as the causative "step" or one of the "steps" which the reader of para. 19 and the prefatory words of paras. 20 and 21 is left to infer was or were taken. The second or alternative substantive allegation in para. 20 is that Mobil "caused" its wholesale or rack prices of petroleum products supplied to its franchisees to increase. That plea duplicates the statement of a conclusion imported by the word "caused" in para. 19. It additionally heightens the uncertainty of the reader of that paragraph and the prefatory words of paras. 20 and 21 by also excluding as a causative step, Mobil's increase of its wholesale or rack price of petroleum products. I consider that if such an increase is relied on it should be possible to identify from the pleading when it was imposed and how it was notified to franchisees. Mr Goldberg also contended that the vice to which he pointed was not cured, if that were possible, by the Schedules noted in the particulars to paras. 19 and 20 which were said to set out only average prices for different types of sites in Sydney and Melbourne. They do not permit, it was said, identification of any of the causative steps for which a reader of para. 19, concerned to identify the relevant facts, would seek. Mr Merkel QC who appeared with Mr J. Beach for the Commission agreed that the Schedules referred to by way of particulars to paras. 19 and 20 indicated only average prices in given weeks but asserted that it was the Commission's intention to indicate those average prices only as a form of shorthand for detailed daily price movements which occupy many folder volumes. He undertook to amend the particulars to make it clear that it is the daily price movements which are relied on. A cognate criticism of para. 19 has been of the assertion that the causative steps were taken by Mobil "particularly when discount pricing was prevalent". It was said that no facts have been pleaded to enable the reader to understand the basis on which any given price is said to be at a discount or not. No indication of a base or normal price is discernible on the face of the statement of claim which would permit an understanding of when discount pricing is said to have been prevalent. The same pleader's device of referring to a "step or steps taken by Mobil" recurs in para. 23. However, there the reference is not to "the step or steps referred to in paragraph 19" but to the "step or steps ... as referred to in paragraph 20" which can only be to the step or steps which I have already noted must be taken to be excluded from the step or steps referred to in para. 19, i.e. the withdrawal of Mobil price support "and/or" the causing of an increase in the wholesale or rack price of petroleum products. An independent attack is also made on sub-para. 20(a) which predicates of the withdrawal of Mobil price support "and/or" the causing of the wholesale or rack price to increase that it or they "had the likely effect of causing such franchisees to increase their prices". That formulation is said to be ambiguous. In the first place, it is capable of meaning that either or both of the identified "steps" had the effect, which each of them was likely to have, of causing franchisees to increase their prices. Alternatively, the pleader may have intended to convey that each of the identified steps was likely to have the effect of causing franchisees to increase their prices leaving the sub-paragraph silent as to whether either step, in fact, had that effect. "Likely to have the effect" is used in the latter sense in s.45(1)(b) and s.45(2) of the Trade Practices Act. Sub-paragraph 20(b) is subjected to the different attack that it imputes to Mobil an intention to bring about a particular result which intention is said to be a condition of mind as to which particulars of the facts relied on have to be given in accordance with O.12 r.3. The point is again made in this context that the Schedules referred to in the particulars actually given are only of average prices on particular days in Melbourne and Sydney at various types of outlets and do not supply the "facts" contemplated by O.12 r.3. As noted above, that point is met by Mr Merkel's assurance that the particulars will be amended to make clear that the Commission relies on detailed daily price movements as already furnished to Mobil and in part to Shell. Mr Merkel for the Commission pointed to para. 36 of the amended statement of claim as the central allegation of the impugned contract, arrangement or understanding. The earlier paragraphs, including 18, 19, 25 and 31, he contended were merely part of a narrative recital of facts providing a description of the relevant markets and a background to the central allegation in para. 36. It was accepted that in many respects the Commission has supplied no, or insufficient, particulars of its allegations but that deficiency was said not to preclude the pleading from disclosing a cause of action. Reference was made to authority including Millar v Harper (1888) 38 Ch. D. 110 at 1112 and Egg Pulp Marketing Board v K.H. Korp Tocumwal Trading Co Pty Ltd [1963] VR 378 at 382 where it has been indicated that provision by a plaintiff of particulars of matters peculiarly within the knowledge of the defendant should be deferred until after discovery. I do not regard Mr Merkel's description of many of the paragraphs preceding para. 36 as mere narrative or description as overcoming all of the detailed criticisms discussed above. In my view, that section of the pleading should be recast to overcome those objections, remove certain tendentious elements, and confine the paragraphs, supplemented by appropriate particulars when that becomes possible, to the narrative or descriptive function which Mr Merkel said they were framed to serve. Paragraphs 22 and 23(b) of the amended statement of claim are also criticised as stating a conclusion instead of pleading material facts. Similarly, sub-para. 23(a) is said to impute an effect to the step or steps referred to in para. 20 without identifying the causal premises which link the two. Sub-paragraph (c) is said to contain no material fact but only two arguments in support of conclusions. The second allegation in sub-sub-para. (ii) is further criticised as not even logically supporting the conclusion stated in the prefatory words of sub-para. (c). Mr Merkel sought to defend para. 22 as a pure statement of fact doing no more than alleging it to be a feature of the market that Mobil's prices cannot remain significantly above those charged by BP and Shell because, if they do, virtually no Mobil petroleum products will be sold. Paragraph 23 is apparently regarded as saying the same thing in a slightly different way with the addition of sub-para. (c) which alleges it to be a feature of the market that one oil company could not effectively or usefully increase the prices of its petroleum products unless the other oil companies have bound themselves by a contract, arrangement or understanding to match those increase. In the same way as I have already indicated in respect of paras. 18, 19, 25 and 31, I consider that, at least, para. 23 should be recast to make it clear that it is no more than a description of certain features of the market and to remove the tendentious elements of sub-sub-para. (c)(ii). The next separate attack launched by Mr Goldberg was on para. 36 which is said to plead a contract, arrangement or understanding of which proper particulars are not given in paras. 3 to 35 or 39 to 50. More material facts are pleaded about the contract, agreement and understanding alleged in para. 36 than could be discerned in the pleading struck out by Fisher J in Trade Practices Commission v David Jones (Australia) Pty Ltd (1983) 7 FCR 109. However, ordinarily, a defendant or respondent required to respond to a pleading which alleges that he or she was a party to an agreement is entitled to what are sometimes called "the usual particulars" going to whether the agreement was in writing (identifying the documents constituting it), oral (identifying the conversations in which it was made) or to be inferred (identifying the matters or facts from which the inference is said to arise). There is much force in Mr Goldberg's complaint that the obligation to provide particulars of that kind cannot be discharged by a blanket reference to a congeries of other paragraphs in a pleading, only few of which refer on their face to matters which are capable of constituting the "usual particulars" of an agreement. The difficulty is pointed up by the partial reliance on paras. 39 to 50 as constituting particulars of the impugned contract, arrangement or understanding. In so far as some of those paragraphs refer, for example, to conversations, the conversations as pleaded are incapable alone or in conjunction with other conversations or documents, of constituting an agreement to the effect alleged in para. 36. More significantly, paras. 39 to 50 occur under a heading which indicates that they allege conduct of Mobil, BP and Shell "giving effect to the contract arrangement or understanding". Accordingly, Mr Goldberg and Mr Archibald QC, who appeared with Mr North for Mobil, each contends that those paragraphs cannot themselves contain allegations of fact providing particulars of a presumptively anterior contract, arrangement or understanding. Mr Archibald also pointed out that particulars provided of para. 3C have confined the period during which the contract, arrangement or understanding was entered into to that between 1 January 1991 and at the latest October 1991. However, the particulars appended to para. 36 invoke, amongst others, the facts alleged in para. 19 which speaks of the period between September 1991 and June 1992. Similarly, attention was drawn to the fact that Schedules B1, B2, D1 and D2 relied on as particularizing para. 20 of the amended statement of claim extend to conduct up to June 1992. Mr Merkel acknowledged the validity of this criticism and undertook to amend the particulars to confine them within the period identified in the substantive allegation. Mr Archibald's next criticism of para. 36 was directed to the allegations in sub-para. (b) of a provision of the impugned contract, arrangement or understanding to the effect that upon one oil company informing the others of an intention to increase its retail prices, the others would increase their prices to approximately the same level. Among the other paragraphs relied on as providing particulars of the making of the contract, arrangement or understanding, is para. 49 which is reproduced at p. 6 of these reasons. The only reference in that paragraph to Mobil is in sub-para. (d) which is to the effect that during the week beginning 16 September 1991, Mobil "maintained" its retail prices. That allegation, Mr Archibald contends, cannot support the plea in para. 36(b) that Mobil was a party to an agreement, arrangement or understanding which required it to increase its prices. For similar reasons, para. 49(d) cannot be relied on as supplying particulars of Mobil's giving effect to the relevant agreement, arrangement or understanding. Mr Scerri for Shell also pointed to a lack of coherence between para. 36(c) which alleges a contractual obligation on each oil company, on being informed of a price increase in Sydney or Melbourne by one of the other oil companies, to withdraw price support from its franchisees in that market, and paras. 39(a) and 49(b). Paragraph 39(a), it will be recalled, alleges an informing of a proposed price increase by Shell in the Sydney market from 17 September 1991. However, para. 49(b) alleges a price movement by Shell in Melbourne with effect from 17 September 1991 which is not referable to Shell's having been informed of any proposed price movement in that market. It may be intended to allege that the movement in prices at the Shell CA sites in Melbourne was not on Shell's initiative but was prompted by its having been informed by Mobil or BP of a proposed increase in that company's prices at its Melbourne CA sites. If that is so, para. 49 should be amended to identify which company informed the others so as to initiate the price movements there alleged. Mr Merkel accepted that the particulars of para. 36 require amendment to delete the suggestion that the impugned contract, arrangement or understanding "is constituted by the facts in paragraphs 3-35 and 39-50". He also accepted that sub-para. 36(b) would require amendment to include an obligation on those parties whose petroleum products were already at the higher prices to which another party notified a proposal to move, to "maintain" their prices at those higher levels. It is of the nature of a contract, arrangement or understanding that there must be communication of a proposal by one party and assent to it by another. The communication may be in writing, oral or by some other means of expression like a wink or a nod. Although the making of the requisite communication can be established by inference from certain facts, including the actions of presumptive parties to the agreement or understanding, the existence of the agreement or understanding is not capable of arising by implication in the same way that a term of a contract may be implied from the surrounding circumstances including the express terms of the agreement itself. The way in which implied terms may be imported into a contract has been authoritatively analysed, especially by Mason J, in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337. That is not to say that circumstantial evidence may not provide a basis for inferring that a communication has been made in the way which I have suggested is necessary to constitute a contract or understanding. Thus, in Trade Practices Commission v Allied Mills Industries Pty Ltd (1980) 48 FLR 102, Sheppard J accepted that particulars of communication between the respondents were scant. However, he also indicated, at 109, that "parallel conduct may constitute circumstantial evidence from which an arrangement or understanding may be inferred. It depends on the facts of each case." In that context, reference was made to the judgment of Lockart J in Trade Practices Commission v Email Ltd (1980) 43 FLR 383 where it was observed, at 386: Parallel conduct may constitute circumstantial evidence from which an arrangement or understanding may be inferred. It depends on the facts of each case. In the present case, the respondents point to a large number of matters in support of their contention that the inference of an arrangement or understanding cannot be supported. Plainly, when a credible explanation is given by a defendant it may be sufficient to negate the inference of an arrangement or understanding: see Trade Practices Commission v. Nicholas Enterprises Pty. Ltd. (No. 2) (1979) 40 F.L.R. 83. In the United States there is powerful authority for the proposition that, while parallel business conduct may provide circumstantial evidence from which an inference as to the existence of an unlawful agreement may be drawn, it is not sufficient by itself to support an allegation of conspiracy under the Sherman Act and it may be the result of independent decisions of competitors or other economic forces. Lockhart J then cited several U.S. authorities, including a discrete group of judgments said to provide: Instances where parallel pricing in respect of homogeneous products has resulted, not from parallel business conduct, but from independent decisions of competitors and intense competition. I accept that it is open to the Commission to seek to prove in that inferential way a contract or understanding to the effect alleged in para. 36 of the present amended statement of claim. In view of its acceptance that para. 36 and the particulars appended to it require some further amendment, it is undesirable that I do more, at this stage, than observe that any particulars appended to the new version should not go beyond what is appropriate to support the substantive allegation. Where the Commission is unable to provide particulars of that kind, it should frankly say so and not dress up as particulars of the contract or understanding, the circumstantial evidence from which it says the making of the contract or understanding should be inferred. A similar criticism is made of the alternative allegation in para. 19 that Mobil caused its CA sites to maintain prices at existing levels. That was said to be incapable of supporting an agreement, arrangement or understanding to increase prices. Likewise, the Schedules referred to in the particulars to para. 19, as well as predating the period from September 1991 to June 1992 made relevant by the substantive plea, were said to disclose only that Mobil maintained its existing prices or, in one instance, reduced them by 0.1 cents. Paragraph 37 was also castigated as pleading conclusions or merely stating the law as embodied in s.45(A)(1) of the Trade Practices Act. In particular, it was said to plead a purpose without providing particulars of material facts, again as required by O.12 r.3. Section 45A is a deeming provision which, in this case, would relieve the Commission of the burden imposed by s.45 of proving that a provision of the agreement alleged in para. 36 had the purpose, or had or was likely to have the effect, of substantially lessening competition. Mr Merkel, as I understood him, did not contend that para. 37 was intended to do any more than point to this evidentiary consequence. In that sense, the paragraph may be somewhat gratuitous but I would not be disposed to strike it out merely on that account. Paragraphs 39 to 50 were said not only to be deficient statements of particulars of the impugned contract, arrangement or understanding, but to plead evidence instead of material facts. Paragraph 49 was accepted as coming closest to alleging a specific understanding underlying an identified price increase in the week beginning 16 September 1991, but even that paragraph was said to lack the particulars required by O.12 r.3 and to state conclusions rather than a succession of material facts tending to establish the alleged movement of BP's and Shell's retail prices or the lack of movement of Mobil's retail prices. The Schedules referred to in the particulars to para. 49, being confined to price movements in the week beginning 16 September, are said to be ex hypothesi inadequate to indicate the levels of prices before that week so as to establish the requisite movement or lack of it. Mr Archibald specifically attacked paras. 41 to 50 which, he said, despite the sub-heading under which they appear, allege facts which are incapable of constituting a giving of effect to an agreement, arrangement or understanding to increase prices. The allegations, so it was said, amount to no more than internal exhortations within Mobil to watch the market. Mr Finkelstein QC who appeared with Mr Scerri for Shell also gave detailed attention to paras. 36 to 49. He pointed out that none of the "specific conduct ... giving effect to the contract arrangement or understanding" under the sub-heading "October 1991" which precedes para. 51 is imputed to Shell. The next imputation to Shell of conduct in contravention of s. 45(2)(b)(ii) is in para. 68 which is pleaded as follows: Further, in engaging in the conduct described in paragraphs 39 & 49 hereof and on each of the occasions therein set out, Shell:- (a) gave effect to the provisions of the contract, arrangement or understanding referred to in paragraph 36 hereof, in contravention of Section 45(2)(b)(ii) of the Act, being contraventions of a kind referred to in Sections 76(1)(a) and 80(1)(a) of the Act; and (b) contravened Section 45(2)(b)(ii) of the Act. Paragraph 39 it will be recalled, alleges a conversation between Constantine and James of Shell and para. 49 alleges that Shell raised its prices on 17 September 1991. Thus, Mr Finkelstein accepts that an allegation is made in those paragraphs that Shell engaged in the allegedly infringing conduct as a principal. However, he points to the alternative allegation in para. 72 of aiding and abetting Mobil's and BP's conduct alleged in, amongst others, para. 66 which is said to have extended from September 1991 through to June 1992. That alternative allegation involves the proposition, it is said, that by having through James a conversation with Constantine on 13 September 1991 and by raising certain prices in September 1991, Shell has aided, abetted, procured and been knowingly involved in conduct by, for example, Mobil, on specified and unspecified dates extending over the next nine months. Paragraphs 39-50 were defended by Mr Merkel as pleading both additional facts from which it is said the making of the contract or understanding alleged in para. 36 is to be inferred, and instances of the parties' giving effect to that contract or understanding. Paragraph 49 was, I gather, said to be an allegation of parallel pricing, including parallel price movements by Shell and BP of which appropriate particulars could be given. Whether the allegations in paras. 39-50 support the inferences which the Court is invited to draw is a question of fact to be decided at trial in the light of any further particulars and the whole of the admissible evidence. Paragraphs 51 to 54 have similarly been criticised as pleading evidence, not material facts, and it is further pointed out that all the matters pleaded are actions attributed to employees of Mobil. Paragraphs 55 to 57 are also attacked as pleading evidence rather than material facts but the additional point is made that an alleged statement by Ralphsmith, a Mobil territory manager, to the dealer Conroy that Mobil and the other major oil companies would be increasing their retail prices on 14 January 1992 was not borne out by the relevant Schedules of price movements relied on in the particulars appended to other paragraphs in the amended statement of claim. Paragraphs 58 to 64 on their face are confined to activities in February 1992, May 1992 and June 1992 by employees or representatives of Mobil and are said not to implicate BP or Shell in the making of any contract, arrangement or understanding or in any other conduct at all. Paragraph 65 is said to exhibit the same vice and to suffer from the further defect that it relates to unspecified "other occasions" between September 1991 and June 1992 on which representations were made about unspecified relief, price increases and the removal of Mobil price support at unidentified times in the future. Paragraph 65 of the amended statement of claim is in these terms: Between September 1991 and June 1992 in:- (a) conversations between Stumbles and Thomson, Stumbles communicated to Thomson that:- (i) Mobil dealers could expect relief on certain specified occasions in the future; (ii) Mobil CA prices would be moved up at certain specified occasions in the future; (iii)Mobil price support would be removed on certain specified occasions in the future; (b) conversations between Thomson (and his predecessor Mr Peter Fitzgerald) and Broome, Thomson (and his predecessor Mr Peter Fitzgerald) communicated to Broome that:- (i) Mobil dealers could expect relief on certain specified occasions in the future; (ii) Mobil CA prices would be moved up at certain specified occasions in the future; (iii)Mobil price support would be removed on certain specified occasions in the future; (iv) he (Broome) should keep a watchful eye on BP CA Sites and Shell CA Sites prices as they were expected to move. Mobil sought further and better particulars of that paragraph by asking: 26. As to paragraph 65 thereof:- (a) Give the usual particulars of each of the conversations between Stumbles and Thomson between September 1991 and June 1992 as alleged therein. (b) Give the usual particulars of each of the conversations between Thomson and his predecessor Mr. Peter Fitzgerald and Broome between September 1991 and June 1992 to the effect as alleged therein. (c) Identify each and every Mobil dealer referred therein and state whether each dealer was located in either the Sydney or Melbourne metropolitan areas. That request elicited this response: 26. As to paragraph 65 thereof:- (a) The Applicant is unable to provide any further and better particulars. (b) The Applicant is unable to provide any further and better particulars. (c) The expression "Mobil dealers" refers to Mobil franchisees generally in the Sydney metropolitan area. the Applicant is unable to provide any further and better particulars. That refusal to provide particulars of conversations taking place over a period of nine months was said to be palpably embarrassing to a respondent required to plead to para. 65 and to prepare for trial on the issues raised by it. Mr Merkel, on the other hand, points out that the Mobil officers or employees who made the representations have been identified and that provides sufficient particularity for the respondents to know the case they have to meet. The probative value of the evidence of those officers or employees or of what they allegedly said, it is argued, turns solely on the weight to be given to it at trial. Mr Merkel went on to indicate that the reference to "certain specified occasions in the future" was not intended to be a paraphrase of what Stumbles and Thomson (or Fitzgerald) had said but was an indication that each of those Mobil officers had in his communication specified future occasions in a way and to an effect as to which the Commission is not presently able to give particulars. The absence of reference to Shell or BP in paras. 51-65 alleging conduct only by or on behalf of Mobil between October 1991 and June 1992 is conceded by Counsel for the Commission. However, it is argued that those allegations, if proved, in conjunction with other matters could strengthen the inference that either or both of Shell and BP were parties to the agreement alleged in para. 36. As a matter of logic, I am unable to discern how the inference which is noted above as being available from instances of parallel pricing, can be strengthened by proof of conduct by one alleged participant which is unrelated to parallel pricing. If it is intended to rely on paras. 51-65 as implicating Shell or BP in the impugned contract or understanding, as distinct from providing instances of Mobil's giving effect to that contract or understanding established in some other way, the nexus should be made clear in any revised version of the pleading which preserves those paragraphs. Paragraph 66 is said to be a mere assertion paraphrasing s.45(2)(b)(ii) of the Trade Practices Act without making or referring to any necessary allegation of material fact. Accordingly, it attracts a comment similar to that which I have already made about para. 37. Similarly, Mr Archibald complained of the failure to elucidate by particulars the allegations of aiding and abetting and conspiracy in para. 70 of the amended statement of claim which is reproduced at p. 7 of these reasons. Of that paragraph, Mobil sought these particulars: 29. As to paragraph 70 thereof:- Specify each and every fact, matter, circumstance or thing relied upon by the Applicant in support of the allegation that Mobil - (a) aided, abetted, counselled or procured BP and Shell to engage in the said contraventions of the Act by BP and Shell referred to in paragraphs 38, 67 and 68 thereof; (b) Induced or attempted to induce BP and Shell to engage in the said contraventions of the Act by BP and Shell referred to in paragraphs 38, 67 and 68 thereof; (c) was directly or indirectly knowingly concerned in or party to the said contraventions of the Act by BP and Shell referred to in paragraphs 38, 67 and 68 thereof; (d) conspired with BP and Shell to engage in the said contraventions of the Act by BP and shell referred to in paragraphs 38, 67 and 68 thereof. (e) Describe each and every occasion Mobil is alleged to have contravened Section 45(2)(b)(ii) in relation to the matters described in paragraphs 39, 40, 41 and 49. (f) Describe each and every occasion Mobil is alleged to have contravened Section 45(2)(b)(ii) in relation to the matters described in paragraphs 39 and 49. To that request, the Commission responded: 29. As to paragraph 70 thereof:- (a) The Applicant relies on the conduct of Mobil set out in paragraphs 36, 41-50 of the Amended Statement of Claim and the particulars given in support thereof. (b) The Applicant relies on the conduct of Mobil set out in paragraphs 36, 41-50 of the Amended Statement of Claim and the particulars given in support thereof. (c) The Applicant relies on the conduct of Mobil set out in paragraphs 36, 41-50 of the Amended Statement of Claim and the particulars given in support thereof. (d) The applicant relies on the conduct of Mobil set out in paragraphs 36, 41-50 of the Amended Statement of Claim and the particulars given in support thereof. (e)&(f) These requests are based on a false premise. The allegation is that Mobil by its conduct as set out in paragraphs 36, 41-50 was involved in the breaches of Section 45(2)(b)(ii) of the Trade Practices Act 1974 by Shell & BP and therefore accordingly liable (under Section 76 of the said Act). Mobil was so involved in relation to the matters described in paragraphs 39, 40, 41 & 49 by reason of its conduct alleged in paragraphs 40-49. Mobil was so involved in relation to the matters described in paragraphs 39 & 49 by reason of its conduct alleged in paragraphs 40-49. It is said on behalf of Mobil that it is impossible to discern in the earlier paragraphs there referred to anything which could amount to entry into the conspiracy alleged. For BP it was argued that para. 71 alleges that by engaging in conduct, the most recent element of which (that alleged in para. 49(c)) occurred on 19 September 1991, BP aided, abetted, counselled and procured, for example, Mobil to engage in contraventions of the Act occurring as late as June 1992. The tenuous nature of that connection as pleaded may well persuade a trial judge not to make the necessary link between BP's conduct and the contraventions imputed to Mobil. However, that difficulty does not afford a basis for striking out para. 71. The separate attack was also mounted on behalf of Shell against the pleading in para. 72(d) which is said to involve a misconception about the nature of conspiracy. That tort or crime, it is said, has as its essential element an agreement to do an unlawful act or to do a lawful act by unlawful means. It follows, on Mr Finkelstein's argument, that the agreement must precede the act which is agreed to be done. See Mulcahy v The Queen (1868) 3 L.R. H.L. Cas. 306 where Willes J observed at 317: A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. Mr Merkel referred to ss.76(1)(f) and 80(1)(f) as expressly contemplating a conspiracy to contravene Part IV of the Act. However Sheppard J in Trade Practices Commission v Allied Mills (supra) did not regard the presence of those paragraphs as supporting the availability of a charge of conspiracy in respect of all contraventions of Part IV. He observed, at 111: As the respondents submitted, there is difficulty in embracing the concept basic to the allegation of conspiracy made in each of the paragraphs of a conspiracy to make an arrangement or enter into an understanding. It is to be emphasized that the conspiracies charged are not conspiracies to raise or maintain the price of liquid glucose, nor are they conspiracies to exhort, incite, encourage or persuade persons to make arrangements or enter into understandings to do so. The conspiracies are said to be conspiracies to make arrangements or to enter into understanding themselves made unlawful by the Act. It was in those circumstances that counsel for the first respondent submitted that, as a matter of construction, the Act did not make unlawful a conspiracy to make an arrangement or enter into an understanding. Such a concept was tautologous. Notwithstanding the words of s. 76(1)(f) of the Act earlier referred to and its express application to s. 45, I think there is force in his argument. But it was not one - and I indicated this during the course of the hearing - with which I was prepared to deal on a summary application to strike out a pleading. I said if I were against the principal submissions relied upon in support of the application to strike out the conspiracy paragraphs, I would allow the matter to be raised as a point of law, and would dispose of it before the main hearing of the proceedings commenced. For the purpose of this application I am prepared to assume that it is permissible to charge a conspiracy to make an arrangement or enter into an understanding made unlawful by s. 45 of the Act. Although I am prepared to make that assumption that is by no means the end of the matter. It becomes critical to analyse the particulars furnished in respect of the alleged conspiracies. After examining the particulars his Honour concluded, at 112: Thus the particulars which are relied upon in support of the allegations of conspiracy are particulars alleging the making of an actual arrangement or the entering into of an actual understanding; there are no other relevant particulars. It should be observed at this point that a conspiracy is, itself, an agreement. I refer to three judgments of the Court of Criminal Appeal in England. In R. v. Newland [1954] 1 Q.B. 158 Lord Goddard C.J. said: "A conspiracy consists of agreeing or acting in concert to achieve an unlawful act or to do a lawful act by unlawful means" [1954] 1 Q.B., at p. 166. In R. v. Smith [1963] 1 W.L.R. 1200 the court said: "The terms `agreement', `confederacy', `acting in concert' and `conspiracy', all pre-suppose an agreement express or by implication to achieve a common purpose...' [1963] 1 W.L.R., at p. 1205. In R. v. O'Brien (1974) 59 Cr. App. R. 222 the Chief Justice said: "... the essence of a conspiracy is an agreement" (1974) 59 Cr. App. R., at p. 225. What, then, is the gravamen of the allegation made in the conspiracy paragraphs bearing in mind the particulars that have been furnished. It is that the corporate respondents conspired, that is agreed, to make an arrangement or enter into an understanding whereby, to take par. 13 of the statement of claim as an example, the prices at which such respondents would sell liquid glucose would be increased as from October 1976 or thereabouts. The conspiracy, that is the agreement, is said in the particulars appended to par. 13 to have been entered upon at the meetings and during the other communications particularized under par. 12. The meetings and communications there referred to are alleged to be the meetings and communications in which the arrangement or understanding charged in par. 12 was made. Paragraph 12 and its particulars cannot be read otherwise. In those circumstances although a conspiracy to make an agreement or enter into an understanding is alleged there cannot, by reason of the particulars, be in fact more than the arrangement or understanding particularized in par. 12. That must be the conspiracy which is charged. Thus the conspiracies relied upon are also the arrangements or understandings alleged in the other paragraphs in the statement of claim. Whatever the operation of s. 76(1)(f) of the Act may be in relation to s. 45, I am satisfied that it is not appropriate to charge, as an alternative to charging arrangements or understandings made unlawful by s. 45, conspiracies which are themselves such arrangements or understandings. The paragraphs in terms do not purport to do this. They charge conspiracies to make unlawful arrangements or to enter into unlawful understandings. But the paragraphs must be read subject to the particulars which have been provided. When that is done it becomes clear that the conspiracies on the one hand and the arrangements and understandings on the other are identical. That is plainly and demonstrably a situation which the Act does not permit or provide for. Accordingly, the paragraphs charging conspiracy will be struck out. Another way of looking at the matter is to adopt the approach of Denning L.J. (as he then was) in Ward v. Lewis [1955] 1 W.L.R. 9. One of the questions in that case was whether, in an action for defamation against two or more defendants, it was permissible to add a count of conspiracy to defame the plaintiff. His Lordship said: "It is important to remember (and we had a case only last week on this point) that when a tort has been committed by two or more persons an allegation of a prior conspiracy to commit the tort adds nothing. The prior agreement merges in the tort. A party is not allowed to gain an added advantage by charging conspiracy when the agreement has become merged in the tort. It is sometimes sought, by charging conspiracy, to get an added advantage, for instance in proceedings for discovery, or by getting in evidence which would not be admissible in a straight action in tort, or to overcome substantive rules of law, such as here, the rules about republication of slanders. When the court sees attempts of that kind being made, it will discourage them by striking out the allegation of conspiracy, on the simple ground that the conspiracy adds nothing when the tort has in fact been committed" [1955] 1 W.L.R., at p. 11. I refer also to Rubenstein v. Truth and Sportsman Ltd. [1960] V.R. 473, at p. 477. Mr Merkel sought to distinguish Allied Mills by saying that in the present case the conspiracy alleged was not confined to formation of the impugned contract, arrangement or understanding. It extended to the putting into effect of the contract, arrangement or understanding. As supporting that as a possible way of avoiding the tautology noted by Sheppard J, reference was made to D.P.P. v Doot [1973] A.C. 807 esp. per Lord Pearson at 827. Allied Mills was considered but not applied by Beazley J in New South Wales v McCloy Hutcherson Pty Ltd (1993) 43 FCR 489 where her Honour observed at 507: In my opinion, in both Allied Mills and Ward v Lewis the court was expounding a rule of practice, but if I am wrong in so categorising them, then I must respectfully disagree. I do not consider there is any such substantive rule. Assuming that the rule is one of practice, it is not one which is appropriate to apply in the circumstances here, where the applicant is faced with a limitations defence to the substantive claim. If that defence succeeds, the only claim which the applicant will have in this regard will be the conspiracy claim. Further, I do not see anything in the Trade Practices Act which prohibits the pleading of a conspiracy charge. Accordingly, I do not consider this claim should be struck out. It is to be noticed that, as summarised by her Honour, at 492, there were three separate allegations of conspiracy in McCloy Hutcherson. The first consisted in collusive tendering, the second was a conspiracy to injure the applicant by conduct in contravention of s.52 of the Trade Practices Act or by entering into agreements or arrangements in contravention of s.45(2) of that Act and the third was a conspiracy to cheat and defraud the applicant. McCloy Hutcherson was referred to by Beaumont J in Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 13 ACSR 117 but his Honour followed Allied Mills in deciding to strike out two paragraphs which alleged that "in entering into the arrangement or reaching the understanding" certain groups of respondents conspired to do the act referred to in each of two other paragraphs which was alleged to be rendered unlawful by various sections of the Corporations Law. After referring to a body of authority, including Allied Mills and McCloy Hutcherson, Beaumont J continued, at 125: In my opinion, the general statements of principle made in Allied Mills are well established by authority and should be followed. It is true, however, that in Allied Mills itself, as well as in Korp and in Chow, the application of the general rule depended, in the end, upon an analysis of the pleadings in the light of the proper interpretation of the applicable legislation. This is well illustrated in Barnett [1951] 2 KB 425 which was mentioned in Korp. There, a number of persons alleged to be dealers in scrap metal were charged on a count of an indictment which alleged that they "conspired together and with other persons unknown to contravene the provisions of s 1 of the Auctions (Bidding Agreements) Act 1927, by, being dealers, agreeing to offer and accept consideration as an inducement or reward for abstaining from bidding at sales by auction". It was held that an agreement such as that alleged did not constitute an offence before the coming into force of the Act of 1927, which provided only for the summary prosecution of a contravention of it; that the principle that, where a statute made unlawful what was lawful before and appointed a specific remedy, that remedy and no other must be pursued, applied, notwithstanding that a conspiracy was alleged, for the particulars alleged of that conspiracy described substantially in terms offences which the Act of 1927 created; and that the count was therefore bad in law. His Honour then set out extracts from the judgment of the Court in Barnett and continued, at 126: With respect to the second limb of the reasoning in Allied Mills, in so far as it was there held that the courts will not permit a pleader to allege a conspiracy with a view to obtaining an impermissible forensic advantage, I must respectfully agree. I would prefer, however, not to rely on any technical doctrine of merger, but rather to view the outcome in Allied Mills as an illustration of the established principle (entrenched in O 11 r 16) that the process of the court cannot be abused. It was then noted that the instant pleadings in Pancontinental v Posgold by paras 22, 23 and 24 alleged a conspiracy and a concerted action which were entered into and embarked upon pursuant to the arrangement or understanding alleged in para. 20 to do the unlawful act alleged in para. 21. His Honour characterized the allegations in paras. 22 and 23 as allegations of a tort of conspiracy and referred to the judgment of Starke J in O'Brien v Dawson (1942) 66 CLR 18 at 27-8 and of Williams J, at 41 and concluded, at 128: In my opinion, this reasoning is applicable here. That is to say, if, as I think, paras 22 and 23 do no more than plead an agreement to do an unlawful act in the form of a contravention of the Law, something not unlawful at common law, then they are mere surplusage and should not be permitted to stand as an attempt to obtain an impermissible forensic advantage. I propose to strike them out. In Metroplaza Pty Limited v Girvan NSW Pty Limited (1993) ATPR 41,241 there was an allegation in para. 22 of conspiracy to injure the plaintiff by "procuring that each tenderer ... if successful, would ... pay secret fees to the unsuccessful tenderers" and two named employer associations. Paragraph 22A alleged alternatively a conspiracy to injure by the defendants': (a) entering into agreements or arrangements with each other in contravention of Section 45A(1) of the Trade Practices Act; (b) deception and dishonestly obtaining for themselves and each other money in contravention of Section 178BA of the Crimes Act 1900, NSW; (c) engaging in misleading and deceptive conduct in contravention of Section 52 of the Trade Practices Act or alternatively being persons involved in a contravention by the First Defendant of Section 52 of the Trade Practices Act. After referring extensively to the judgment of Sheppard J in Allied Mills, Foster J observed, at 41,270: It was the respondents' submission that the present case was on all fours with Allied Mills and that the passage cited from the judgment of Sheppard J was determinative in requiring that paragraph 22A(a) be struck out. Although I see much force in the respondents' argument I am not persuaded that when the paragraph is read with the whole of the Amended Summons, particularly paragraphs 5, 6 and 7, it so clearly covers the same ground as is relied upon in paragraphs 11 to 13 as to warrant its being struck out as being clearly untenable. Accordingly, I reject this aspect of the respondents' application. Mr Merkel invoked the dissenting judgment of Kirby P in Wickstead v Browne (1992) 30 NSWLR 1 which was later upheld by the High Court, as supporting his contention that the Commission should be allowed to proceed to trial on the allegation of conspiracy in its present form and that a decision on whether that course of action has been made out should await a review of the whole of the evidence as it finally emerges. In Wickstead v Browne the question was whether a plaintiff should be able to pursue, on a pleading alleging the same set of facts, two separate causes of action, one for breach of fiduciary duty and the other at common law in negligence. Those observations can be applied with much force to cases which require a judicial identification of which, if either, of two arguably available causes of action is made out by proof of certain facts from a whole body of evidence which is to be adduced at trial in any event. However, I regard the reasoning of Beaumont J in Pancontinental v Posgold as persuasive in cases like the present where the invocation of conspiracy on the pleadings could conduce to an abuse of process if it allowed an additional body of evidence to be adduced which would otherwise have been precluded by application of the principles distilled by his Honour from Allied Mills and the other authorities which he cited. Accordingly, because the reference to para. 38 in sub-para. (d) of each of paras. 70, 71 and 72 and in sub-para. (c) of para. 74 involves an allegation that the conspiracy consisted in the making of a contract or arrangement or the arriving at an understanding in contravention of s.45(2)(a)(ii) of the Trade Practices Act, I shall strike out the reference to para. 38 from each of the four paragraphs just mentioned. However, the reference in sub-paras. 70(d), 71(d), 72(d) and 74(c) to two or more of paras. 66, 67 and 68 is to acts said to constitute a giving of effect to the provisions of the contract, arrangement or understanding referred to in para. 36. I therefore regard them as alleging something other than the making of an actual arrangement or the entering into an actual understanding of the kind ruled impermissible in Allied Mills. Taking the somewhat benevolent attitude to an application to strike out a pleading suggested as appropriate in that case and some of the other authorities to which I have been referred, I am thus disposed to let those other references in sub-paras. 70(d), 71(d), 72(d) and 74(c) stand. Mr Shavin for Constantine pointed to paras. 73 and 74 of the amended statement of claim which seek to implicate that individual by alleging: 73. Further, Constantine acted, as set out in paragraphs 39-41 hereof, with the intention of making the contract, arrangement or arriving at the understanding referred to in paragraph 36 hereof and/or giving effect to the provisions of such contract, arrangement or understanding as alleged in paragraphs 39-50 hereof. 74. By engaging in the conduct referred to in paragraphs 39-41 hereof and with the intention referred to in paragraph 73 hereof, Constantine:- (a) aided, abetted, counselled or procured; or (b) was knowingly concerned in, or a party to; (c) conspired with BP, Mobil and Shell to engage in the contraventions of the Act referred to in paragraphs 38 and 66-68 hereof. It was pointed out that para. 39 alleges a meeting on 13 September 1991 between Constantine and James of Shell and paras. 40 and 41 allege a telephone call by Constantine to Plant of Mobil on the same day. It is on the basis of those two actions in the space of a single day that Constantine is alleged to have aided and abetted the oil companies and participated in a conspiracy with them to engage in conduct extending up to June 1992. However, for the reasons already indicated in respect of para. 71, the improbability of the Commission's establishing the requisite degree of continuity between Constantine's actions and the conduct of the oil companies is not a sufficient basis for striking out the paragraphs which charge him. A conceptual difficulty is said to have been created by the use in several parts of the amended statement of claim of the expression "price support". It will be recalled that "Mobil price support" is defined in para. 18 of the amended statement of claim. However, Mobil sought particulars of that paragraph by asking: 6. As to paragraph 18 thereof:- (a) Identify "the material times" referred to. (b) Describe and list each and every price support services referred therein. (c) Describe and list each and every price support facilities referred therein. (d) Specify each and every fact, matter, circumstance or thing relied upon by the Applicant in support of the allegation that Mobil provide a price support services and facility to its franchisees (identifying each) and the date of provision of the services or facility as alleged therein. (e) Within the material times referred to and in relation to each franchisee in each of the retail markets referred to in paragraph 17 thereof specify - (i) the amount of rebate, allowance or discount off the wholesale or rack price of the petroleum products supplied to the franchisee; (ii) the reduction to the wholesale or rack prices of petroleum products supplied to the franchisee; (iii)the other services and facilities provided to franchisee. The request elicited this response from the Commission: 6. As to paragraph 18 thereof:- (a) 1 January 1991 - 1 August 1992. (b) The Applicant refers to and repeats paragraph 18(b) of the Amended Statement of Claim. Further, Mobil provided a form of profitability assistance to its franchisees which took the form of a payment made to a particular franchisee at the end of each month calculated upon turnover and profitability of that franchisee for the preceding month. Save as aforesaid, the Applicant is unable to provide any further and better particulars. (c) The Applicant refers to and repeats paragraph 6(b) hereof. (d) This is not a proper request for particulars and the Applicant objects to answering the same. (e) This is not a proper request for particulars and the Applicant objects to answering the same. Under cover of that objection it further says that in any event it is unable to provide further detail until after discovery from the Respondents. The provision of those particulars was attacked by Mr Archibald as equating "price support" with "profitability support" or, at least, including profitability support within the concept of price support which was said to travel beyond the substantive plea in para. 18. Mr Merkel, I gathered, acknowledged the force of this criticism but maintained that "other services and facilities" referred to in sub-para. (b)(iii) of the definition of "price support" in para. 18 was a wide enough expression to encompass "profitability support" in the sense of payments made to franchisees after the event to compensate them for the effects of discounting. Withdrawal of price support by Mobil, BP and Shell is critical to the allegations against each of them because it is one of only two modes of performing the agreement alleged in para. 36(c) to cause franchisees to increase or maintain their prices. Allegations of the withdrawal of price support, including profitability support, should therefore specify the form it is alleged to have taken and should be fully particularized so as to identify the date on or from which it occurred and the precise way in which it impinged on each affected franchisee. Another definitional difficulty to which Mr Archibald pointed was related to the concept of "petroleum products" which is defined in para. 3(c) of the amended statement of claim as synonymous with "petrol". Yet, it is complained that a request for particulars of "other oil companies" alleged e.g. in para. 16(d) to be in competition with Mobil, BP and Shell in the supply of petroleum products elicited a response which embraced companies which trade not in petrol but only in liquefied petroleum gas (LPG). This inconsistency should be removed either by deletion of the reference in the particulars to those LPG companies or by recasting the definition of "petroleum products" in para. 3(c). CONCLUSION At the conclusion of oral argument in this matter, as a result of deficiencies which had been conceded by Counsel for the Commission to exist in the amended statement of claim which had been attacked by Counsel for the respondents in the various respects discussed above, I gave leave to the Commission to file and serve a draft further amended statement of claim incorporating the amendments set forth in a document which had been produced in the course of the hearing together with particulars which had already been supplied in response to a request by one or other of the respondents. That leave was framed to allow the Commission to incorporate in the draft further amended statement of claim all additional amendments which it might have been advised were necessary or appropriate. Pursuant to that leave, a draft further amended statement of claim has been filed and has been subjected on behalf of each of the respondents to criticisms similar to those already discussed in these reasons. It will be apparent from a comparison of the new draft pleading with the amended statement of claim filed on 12 December 1994 in the light of these reasons, that not all of the criticisms which I have regarded as valid have been overcome by the new document. I therefore consider it appropriate to strike out the existing amended statement of claim giving leave to the Commission to file a fresh statement of claim preserving such of the amendments embodied in the document filed on 3 April 1995 and incorporating such further amendments as the Commission may be advised having regard to these reasons. This, in its essential features, is the course which commended itself to Lockhart J in Trade Practices Commission v Australian Iron and Steel Pty Ltd 1990 92 ALR 395 where his Honour observed at 413: In view of my earlier findings much of the first amended statement of claim must be struck out. To leave the residue would be confusing. On this ground alone I would therefore strike out the whole first amended statement of claim. If I had been minded to find in favour of the Commission on all substantive questions of law which found its causes of action I would still have been disposed to strike out the whole of the first amended statement of claim. It fails to plead material facts, it contains confusing and irrelevant material, it uses ambiguous terms, pleads particulars rather than material facts and asserts conclusions or opinions. Certain of the matters are perfectly well pleaded, but the defective parts are so inextricably intertwined with offending material that an oppressive burden is cast upon the respondents to spell out the alleged cause or causes of action. The whole pleading must be struck out: cf Coe v Commonwealth (1979) 24 ALR 118; 53 ALJR 403 per Jacobs J at 409. The Commission ought to have an opportunity to replead the case which is left by further amending the statement of claim. Leave to file any further amended statement of claim ought not to be granted, however, except on terms that the proposed amendments be verified by affidavit which should satisfy the court there really are facts which can probably be proved and which, if proved, would support the general statements made in the statement of claim. This is a similar course to the one taken by the Court of Appeal in England in Salaman v Secretary of State in Council of India [1906] 1 KB 613, though it does not impose as high a threshold as was imposed in that case, and is in my opinion the appropriate course to take here, especially in view of the history of this matter and the number of attempts thus far by the commission to properly formulate its case. My reference to that passage should not be taken as suggesting that the Commission's present pleading warrants all of the strictures which his Honour passed on that occasion. In particular, I do not regard it as necessary to require verification by affidavit of the further amended statement of claim which I contemplate will be filed. However, the opportunity should be taken to indicate in the body of the new pleading the way in which the inferences claim to arise from the narrative or descriptive facts and particularly from the voluminous records of price movements are related to the substantive allegations of contraventions of the Trade Practices Act. I shall reserve liberty to any party to apply and shall order that the respondents' costs of their respective motions on notice be reserved. The respondents should, of course, have their costs, if any, thrown away as a result of the further amendment of the statement of claim. I certify that this and the preceding forty (40) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan. Associate: Date: Counsel for Applicant: Mr R Merkel QC with Mr J Beach Solicitors for Applicant: Australian Government Solicitor Counsel for First Respondent: Mr A Archibald QC with Mr T J North Solicitors for First Respondent: Barker Gosling Counsel for Second and Fourth Mr A H Goldberg QC Respondents: with Mr D. Shavin QC Solicitors for Second and Fourth Respondents: Clayton Utz Counsel for Third Respondent: Mr R A Finkelstein QC with Mr C.M. Scerri Solicitors for Third Respondent: Freehill Hollingdale & Page Date of Hearing: 20, 21 and 27 March 1995 Date of Judgment: 9 September 1996