FEDERAL COURT OF AUSTRALIA Grahame v Lang Corporation Limited [2001] FCA 373 ANTHONY WAYNE GRAHAME v LANG CORPORATION LIMITED, CHRISTOPHER D'ARCY CORRIGAN, PCS OPERATIONS PTY LTD, PCS RESOURCES PTY LTD, P AND C STEVEDORES PTY LTD, DONALD GORDON McGAUCHIE, PAUL XAVIER HOULIHAN AND JAMES WILLIAM FERGUSON QG 132 OF 2000 KIEFEL J 4 APRIL 2001 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q132 OF 2000 BETWEEN: ANTHONY WAYNE GRAHAME APPLICANT AND: LANG CORPORATION LIMITED (ACN 008 660 124) FIRST RESPONDENT CHRISTOPHER D'ARCY CORRIGAN SECOND RESPONDENT PCS OPERATIONS PTY LTD (ACN 081 231 049) THIRD RESPONDENT PCS RESOURCES PTY LTD (ACN 081 231 021) FOURTH RESPONDENT P AND C STEVEDORES PTY LTD (ACN 081 225 078) FIFTH RESPONDENT DONALD GORDON McGAUCHIE SIXTH RESPONDENT PAUL XAVIER HOULIHAN SEVENTH RESPONDENT JAMES WILLIAM FERGUSON EIGHTH RESPONDENT JUDGE: KIEFEL J DATE: 4 APRIL 2001 PLACE: BRISBANE REASONS FOR JUDGMENT 1 These proceedings concern the "Webb Dock Group" and representations made to them in the process of their recruitment by the PCS companies on behalf of the Patrick companies. They occurred at a time subsequent to the Dubai recruitment and employment, referred to in the Batten proceedings (QG 177 of 1998). 2 It is alleged, in connexion with these representations, that Mr Corrigan of the Patrick companies told the PCS directors that recruits were to be used as substitutes for union labour by the Patrick companies on the waterfront and that "it would be advisable" for the PCS directors and their companies to inform the recruits that they would not be used as a substitute labour force; and that they would form part of a labour force which would compete on an equal footing with union workers. It is then alleged that "persons acting for the PCS companies" made such representations from January to April 1998 and in addition made a further representation that "it would be a job for life". These are referred to as the "NFF Representations", a reference to the National Farmer's Federation, which would not now appear to be particularly meaningful in the context of this pleading, but this is not a point taken. It will be seen that in these proceedings it is alleged that a direct falsehood is attributed to the respondent companies as are representations about the nature of the employment. 3 Two matters raised by the Patrick companies may first be dealt with. An application was made at the outset to substitute Mr Grahame for the two existing applicants. The only objection by the respondents to this course related to costs and was overcome by Mr Grahame undertaking to accept responsibility for any costs for which the previous applicants would have been liable. The application in these proceedings must also be amended to reflect the claims now made in the statement of claim, if leave is granted. I should add that I have, for the purposes of this application adopted the heading used by the applicant in the statement of claim notified on 16 February 2001, which deletes a number of parties, for otherwise the submissions would not make sense. It is not necessary to make an order amending the parties to the proceedings. The amended application to be filed will effect that. 4 The particulars given refer to the making of representations by a number of means: by advertisements placed in newspapers by the PCS companies and directors; by persons speaking on behalf of the PCS companies and directors at meetings and by the PCS directors themselves speaking publicly on occasions. In each case schedules are published further identifying what was said or published and in some cases identifying the group members who were the recipients of the representations. 5 It was submitted that the representation, that the recruits would have "a job for life", is not to be found in the instructions given by Mr Corrigan to the PCS directors, as to what to inform further employees. It is possible that this might be a point of distinction in the case for extended liability but the applicant cannot be said to be restricted to what was instructed if those acting for the PCS companies added to the representations. 6 The Patrick companies submit that the advertisements referred to in the particulars do not contain the substance of the representations as alleged. A reference to them bears this out. It may have been more accurate for the applicant to draw the various statements and publications together as conveying the representations alleged, but I think this is clearly enough intended. Of more importance may be the particulars of reliance provided in statements to which I shall later refer. 7 A similar concern was expressed about the clarity of the allegations concerning misleading and deceptive conduct as was raised in the Batten proceedings, but again it is tolerably clear that the applicant alleges that the instructions given, in light of Mr Corrigan's expressed intention, comprise a falsehood and a lack of belief about the future. 8 It was also submitted that no basis is shown for the allegation that the representations were made on behalf of Mr Corrigan or the Patrick companies, or that they were in any way knowingly concerned. It is clear enough in my view that the case pleaded depends upon Mr Corrigan's position in the companies and the fact that he influenced others to make the representations. 9 The respondents make the same submissions concerning loss and damage as were made in the Batten proceedings. Here however there are larger number of group members and this may affect the timetable for delivery of statements, but not in my view the obligation to do so. The statements should be provided giving particulars of loss and damage including any reliance loss. The applicant should do so in a fairly short frame of time. 10 I have considered whether further particulars of reliance ought to be provided, particularly given the large number of group members. At present the schedules identify some, but not all, representations or statements as connected to, and potentially therefore influencing, particular group members. I understand it to be alleged, in the case of each group member, that whatever they have heard or read and what was conveyed to them is substantially described in what is alleged in paragraph 10. As I observe in the Batten proceedings, it would be most surprising however if their statements were in these terms. The further identification of what they recall as being conveyed to them and what it actually meant to them should be provided in their statements which deal with loss and damage. As I have said the applicant should deliver such a statement sooner; the group members statements can be provided during the course of proceedings towards hearing. 11 It was submitted, on behalf of the PCS directors, in similar terms to the objection outlined above, that the advertisements do not themselves establish a cause of action. Again, they are to be understood in the context of what was conveyed overall by the other statements. It may be that they are put forward only as background and as an invitation to what followed. I do not consider the respondents to be prejudiced by the way in which these matters are pleaded. 12 It was also submitted that there was no case disclosed against the PCS directors. As in the Batten proceedings, the allegation that they were knowingly concerned is absent, but I consider that the foundation for that allegation is sufficiently pleaded. Any argument that they must also be seen to be acting outside their capacity as agents, to be liable on this extended basis, can be argued at the conclusion of the hearing. For present purposes, the applicant should make clear whether they are said to have been acting as the agents of the company. 13 Both respondents make the same complaint about the allegation concerning a joint venture of the respondents as is made in the Batten proceedings, and my comments there apply here. 14 The balance of the submissions for the PCS directors concern the adequacy of the NFF representations. The submissions regarding parts of the written representations are to the effect that the cause of action will not be made out since it is "improbable" that each of the members of the group read each of the three advertisements. As it is alleged, the three advertisements are pleaded in each of the group members as listed, from which it may be inferred that they read all three or one or more of them. This would seem to me to be another matter which the statement concerning reliance could address. In any event the written advertisements would not appear to me to be a critical matter in the potential liability of the respondents. 15 The complaint regarding the oral representations is that the content of what occurred at the meeting should also be set out. What is pleaded would appear to me to be sufficient. The substance of what was said at each meeting has been provided and I am not prepared to infer that the making of fairly standard representations was all that unlikely to have taken place in the circumstances of this case. In any event it is a matter for evidence. 16 Leave to further amend the statement of claim in the terms notified on 16 February 2001 will be granted subject to: (i) the applicant making clear whether the PCS directors, the sixth, seventh and eighth respondents, are alleged to have acted on behalf of the first respondent; and whether it is alleged that they were knowingly concerned in the contraventions; (ii) the applicant pleading full particulars of any reliance loss claimed. The facts relating to his reliance are to be provided either in the pleading or by way of statement. (iii) the applicant being required to file an amended application which accords with the claims now pursued. 17 My provisional view as to costs is the same as those expressed in the Batten proceedings. 18 I will hear from the parties as to the time for filing of the amended pleading and any statement by the applicant, and as to directions for defences, interlocutory steps and the provision of the statements by the group members. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: 4 April 2001 Counsel for the Applicant: Mr M Jarrett Solicitor for the Applicant: Klooger Phillips Scott Counsel for the First and Second Respondents: Mr CM Scerri QC and Mr RM Peters Solicitor for the First and Second Respondents: Arnold Bloch Leibler Counsel for the Third to Eighth Respondents: Mr J Bourke Solicitor for the Third to Eighth Respondents: Minter Ellison Date of Hearing: 26 March 2001 Date of Judgment: 4 April 2001