FEDERAL COURT OF AUSTRALIA Grahame v Lang Corporation Limited [2001] FCA 916 ANTHONY WAYNE GRAHAME v LANG CORPORATION LIMITED, CHRISTOPHER D'ARCY CORRIGAN, PCS OPERATIONS PTY LTD, PSC RESOURCES PTY LTD, P AND C STEVEDORES PTY LTD, DONALD GORDON McGAUCHIE, PAUL XAVIER HOULIHAN and JAMES WILLIAM FERGUSON Q132 of 2000 KIEFEL J 16 JULY 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 PSC 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 OF ORDER: 16 JULY 2001 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The Notice of Motion brought by the third to eighth respondents (the PCS respondents) is dismissed. 2. The PCS respondents are to pay applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. 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 PSC 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: 16 JULY 2001 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On 18 May 2001, subsequent to my order of 11 April 2001, the applicant filed a Further Amended Statement of Claim. In accordance with those orders the applicant also filed his statement as to the issue of reliance. The PCS (third to eighth) respondents' motion seeks to strike out the applicant's claim against them. Their principal ground is that the applicant's case, as disclosed in the statement, is not that which has been pleaded. 2 On 16 July 2001, I dismissed that motion with costs and I now provide, in short form, my reasons for doing so. 3 The pleading alleges three representations by persons acting for the PCS companies to the applicant, namely that if the employment opportunity being offered by those companies was accepted (par 10): "(a) that employee would not be used as part of a substitute labour force for MUA workers then employed by the Patrick Companies; (b) he or she would form part of a labour force which would compete on an equal footing with MUA workers on the Australian waterfront offering stevedoring services; (c) it would be a job for life." 4 The particulars given as to the making of the representations are: newspaper advertisements containing the substance of the representations; recruiting meetings; and public statements by the PCS directors (in newspapers and on television). 5 In his statement the applicant says that he saw different people interviewed at different times on television (he puts this at about Christmas 1997) who said they were from the NFF and "…they were setting up an alternative work force to compete with the Unions on the waterfront. They were saying that they would be able to make Australia's wharves much more efficient". He does not specifically recall the advertisements annexed to the statement of claim and can only say that they appeared in newspapers he was in the habit of reading. He is unable to say whether the advertisements influenced him or not. He rang the NFF on 2 February 1998 for more information and he was invited to apply for a position by sending in a resume. 6 In early March he received a telephone call from a person who was identified as being from the NFF and who arranged an interview for him in Brisbane. At the interview, on 13 March 1998, he was told by one Hartson that the NFF was setting up a company to operate in competition with established companies such as P & O and Patricks, and they intended training workers. He was asked a number of questions about his attachment to a union and the discussion concerned his view of unions. He was then told about the training and the type of work involved. The job was said to be subject to a three year contract with provision for renewals at the end of each three year period and he was told: "If you take this job, you will have a job for life". This was reiterated to the applicant's wife at the conclusion of the interview. 7 One matter raised in submissions can be dealt with shortly. It was submitted that the reliance upon the actions of the NFF people in the statement is insufficient. The allegation in the statement of claim is however that all such people involved acted on behalf of the PCS respondents. Mr Hartson is the subject of a particular allegation. That is a matter for proof by the applicant; but it does not have to be established in the statement, which is limited to the applicant's reliance in fact. 8 Clearly the only representation of the three pleaded which is said to have been directly stated to the applicant is that referred to in par 10(c). It is also the case that this occurred at an interview and not some larger gathering such as a recruitment drive, as the pleading tended to suggest. By itself this inaccuracy, at least with respect to the applicant, is not fatal. As to the other two representations, the applicant's case is that they might be inferred from what was put forward - a workforce intended to be established and to operate in an ordinary competitive commercial environment. As has been gone over in submissions before it is what was not, in this background, further explained upon which the applicant must rely to make out the representations by inference. Par (b) might, as senior counsel for the applicant concedes, be more difficult to establish but there is, on the facts pleaded and stated, a possibility that either or both representations might be. 9 The fact that the applicant cannot state whether the newspaper advertisements influenced him does not foreclose their relevance as background - although, as I have previously said - their standing as particulars in the case might have been overstated. The applicant's statement puts forward the media reports and the advertisements as occurring prior to him contacting the NFF. Reliance at this early point is a matter to be considered by way of inference. 10 Whilst there is not precise conformity with the statement of claim, it has not been shown that the applicant has no cause of action against the PCS respondents. Other complaints, as to whether the allegations that those respondent directors were knowingly concerned and as to agency, proceeded from a misunderstanding of my earlier reasons. They have been dealt with and the applicant's pleading is a response to the reasons for orders made on 11 April 2001. 11 The matter should proceed forward and the further statements as to reliance from group members be provided. At this point it cannot be said that the proceedings are not sufficiently representative. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: 16 July 2001 Counsel for the Applicant: Mr H Fraser QC with Mr M Jarrett and Mr R Jackson Solicitor for the Applicant: Klooger Phillips Scott Counsel for the first and second Respondents Mr R Peters Solicitors 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: 16 July 2001 Date of Judgment: 16 July 2001