Rosalina Melena Louis; Graham James Louis; Ferdinand Graham Louis I By His Next Friends Rosalina Melena Louis and Graham James Louis; Rachael Rose Louis By Her Next Friends Rosalina Melena Louis and Graham James Louis; Murray Daniel Louis By His Next Frien [1986] ACTSC 6 (21 February 1986)

SUPREME COURT OF THE ACT

ROSALINA MELENA LOUIS; GRAHAM JAMES LOUIS; FERDINAND GRAHAM LOUIS I by his
next friends ROSALINA MELENA LOUIS and GRAHAM JAMES LOUIS; RACHAEL ROSE LOUIS
by her next friends ROSALINA MELENA LOUIS and GRAHAM JAMES LOUIS; MURRAY
DANIEL LOUIS by his next friends ROSALINA MELENA LOUIS and GRAHAM JAMES LOUIS
v. COMMONWEALTH OF AUSTRALIA and QANTAS AIRWAYS LIMITED
S.C. No. 1029 of 1985
Pleading and Practice

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Pleading and Practice - Applications to strike out statement of claim as sought to be amended or, alternatively, parts of it as unnecessary, scandalous, embarrassing or oppressive - Allegation of conspiracy to commit tort - Commission of tort also alleged - Whether allegation of conspiracy may stand - Unnecessary and embarrassing matter - Whether facts relating to damages may be pleaded - Whether unnecessary matter must be struck out.

Rules of Supreme Court of A.C.T. - O.23, r.28.

Marrinan v. Vibart (1936) 1 QB 234.

Cabassi v. Vila [1940] HCA 41; (1940) 64 CLR 130.

Sorrell v. Smith (1925) AC 700.

Ward v. Lewis (1955) 1 WLR 9.

Galland v. Mineral Underwriters Ltd. (1977) WAR 116.

Millington v. Loring (1880) 6 QBD 190.

Speidel v. Plato Films Ltd. [1979] UKHL 4; (1961) AC 1090.

P.J. Holdings Australia Pty. Ltd. v. Hughes (1980) QdR 83.

HEARING

CANBERRA
21:2:1986

ORDER

The following passages be struck out of the document headed "Amended Statement of Claim" which was filed on 5 February 1986 and of which a copy marked with the letter "C" is annexed to the reasons for ruling herein:

(a) The whole of paragraph 3.

(b) In paragraph 4, in the second and third lines, the
words "not legally bound by the Commonwealth of
Australia's constitution and jurisdiction", in
line 6 the words "Hong Kong authorities", in line
7 the words "wilfully and maliciously conspired
together then" and in line 13 the words "contrary
to law".

(c) The whole of paragraph 5.

(d) In paragraph 6, in lines 2 and 3 the words "and
the husband and father of the abovementioned
plaintiffs", in line 6 the words "Hong Kong
authorities" and in line 7 the words "wilfully and
maliciously conspired together then".

(e) The whole of paragraph 7.

(f) In paragraph 8, in line 7 the word "thereby", in
line 13 the words "wilful malicious misconduct
and", in lines 20-23 inclusive the words "for the
defendants arbitrary and unconstitutional conduct
and absolute disregard for the plaintiffs legal
and human rights which the defendants have abused
in a continued oppressive way and apologize", in
lines 27-32 inclusive the words "and to apologize
and for the Court to order the defendants to
respect the plaintiffs legal and human rights at
all times in future and for the defendants to be
ordered to transport us back to Hong Kong where we
were illegally forced from in the first instance
so we may have peace and finalize all legal
matters" and in lines 33 and 34 the words "of and
incidental to our unlawful forced entry into the
Commonwealth of Australia".

The words "the defendants acted out of spite and malice towards the

plaintiffs and since the arrests and imprisonments took place in public areas the plaintiffs" be struck out of paragraph 8 and of them the following words be transposed to a position before the said paragraph 8, "the defendants acted out of spite and malice towards the plaintiffs and the arrests and imprisonments took place in public areas".

Except by leave the plaintiffs not re-plead or attempt to re-plead any matter struck out by order of the Honourable Mr Justice Brennan in the High Court of Australia on 19 August 1985 or by this order.

The plaintiffs' applications for discovery be adjourned sine die and except by leave be dealt with on the close of pleadings herein and after all proper particulars of the plaintiffs' claim have been duly sought and furnished.

DECISION

On 27 June 1985 in the High Court of Australia the plaintiffs began proceedings against the first defendant (the Commonwealth) and the second defendant (Qantas). The Commonwealth entered an appearance to the writ on 18 July 1985 and subsequently filed, it would seem on 12 August 1985, a summons seeking an order that the statement of claim be struck out and judgment be entered for it. Additionally it sought, inter alia, an order that all unnecessary or scandalous matter which might tend to prejudice, embarrass or delay the fair trial of the action should be struck out from the statement of claim. Without having filed an appearance Qantas filed a notice of motion dated 12 July 1985 seeking an order that the writ of summons and statement of claim be struck out as against it for want of jurisdiction. Both matters came before Brennan J in the High Court on 19 August 1985. Meantime, on 15 August 1985, the plaintiffs filed a document headed "Amended Statement of Claim" purportedly under 0.29, rr. 2 and 8 of the High Court Rules. Attached as Annexure "A" is a photocopy of the document.

2. During the course of argument his Honour sought to encapsulate the plaintiffs' claim in two questions. He said to the plaintiff, Graham James Louis,

"Mr Louis, . . . so that I can understand your
statement of claim, is this the allegation in
paragraph 3 that the Commonwealth by
employees of Qantas Airways as their agents
falsely imprisoned and wrongfully arrested
your wife and some of your children, put them
on board a Qantas plane and sent them to
Australia?"

and further,

"And in paragraph 4, that the same thing happened with regard to yourself?"
To each question Mr Louis replied, "Exactly, your Honour".

3. After hearing argument and upon receipt of an undertaking from Qantas that an appearance would be filed on its behalf, his Honour:-

(a) dismissed the motion by Qantas;

(b) ordered that one of the plaintiffs, Frederick Bong
Bong James Louis II, be struck out of the title of
the action;

(c) ordered that the statement of claim be amended to
the form annexed hereto and marked with the letter
"B";

(d) made consequential orders as to costs; and

(e) remitted the action to this Court.

4. By notice of motion dated 2 October 1985 the plaintiffs sought a number of orders. The first, second and seventh related to discovery. The third, fourth, part of the fifth and the eighth were as follows:-

"3. Where the words aided and abbetted were
struck from original statement of claim
we ammend with these words conspired
with Hong Kong officials of Government.

4. Where paragraph 5 appeared (in the
original statement of claim) we ammend
to the following:-

The illegal circumstances that Ferdinand
Bong Bong James Louis II was born under
constitutes gross negligence by the
defendents supported by paragraphs 3-4
allowed in original statement of claim
due to his geographical birth so he
should be included on the title of this
suit although not a legal resident of
Australia by free will and in accordance
with the Constitution of Australia which
can only be administered legally.
Injuries sustained by the plaintiffs
must include Bong Bong being a member of
the Louis family forced into our
predicament by the defendants by gross
negligence.

5. . . . we ammend paragraph 9 and apply
article 17 of the International Covenant
on civil and political rights an-or
gross negligence misrepresentation . . .

8. Regards damages paragraph 10 against the
Commonwealth we ammend the total
pecuniary to $500,000-00 in so far as
the second defendant Qantas we ammend
pecuniary damages to be unlimited
literally . . ."

5. When the notice of motion came on for hearing on 4 October 1985 the plaintiffs insisted that their statement of claim now included by virtue of 0.29, rr. 2 and 8 the allegations made in the document headed "Amended Statement of Claim". The defendants took no point that the notice of motion had been served less than two clear days before its return date, (0.54, r. 5 of the rules of this Court) and after a considerable amount of debate the matter was adjourned to 11 October 1985, the plaintiffs having agreed that a document would be filed on behalf of the plaintiffs which incorporated the amendments sought.

6. Rules 2 and 8(1) of 0.29 of the High Court Rules are as follows:-

"2. The plaintiff may, without leave, amend
his statement of claim, whether indorsed on
the writ or not -

(a) once at any time before the expiration
of the time limited for reply and before
replying; or

(b) where a defence is not delivered, at any
time before the expiration of twenty
eight days from the appearance of the
defendant who last appeared.

8.(1) An amendment in a document may be made

(a) by a written alteration in the document
and copies of the document which have
been filed, served or delivered; or

(b) by an addition on paper to be
interleaved with the document and
copies."

7. The plaintiffs had not made a written alteration to the statement of claim as filed or the copies of it served or delivered nor had they by an addition on paper interleaved the amendments with the statement of claim filed and the copies delivered.

8. Accordingly, in my view, no amendment had been made to the statement of claim in the High Court. It seems clear from the transcript of proceedings before him that Brennan J gave no consideration to the document headed "Amended Statement of Claim" beyond referring to its existence. Despite the plaintiffs' insistence through Mr Louis that the statement of claim as remitted to this Court included the amendments proposed, I am of the opinion that it did not.

9. Nevertheless, it was clear that the plaintiffs had tried to amend the statement of claim in accordance with the applicable rules and on 11 October 1985 the matter proceeded on the basis that an amendment had been made notwithstanding the plaintiffs' failure to file a document incorporating the proposed amendments to the statement of claim.

10. By the time the matter came on to be heard on 11 October 1985 each of the parties had filed, on 8 October 1985, another notice of motion. Qantas sought orders under O.23, r.28 of the Rules of this Court that leave be refused the plaintiffs to amend the statement of claim as proposed in the document entitled "Amended Statement of Claim" or alternatively that the passage in the document so entitled be struck out of the statement of claim. The Commonwealth sought similar orders. The plaintiffs sought orders in the same terms as those sought in their notice of motion of 2 October 1985.

11. An attempt was made to put the plaintiffs' statement of claim incorporating such amendments as were appropriate into final form but this proved unsuccessful and the further hearing of the matter was adjourned to 2 December 1985, the plaintiffs being given leave to amend their statement of claim as they might be advised or wish.

12. It should be noted that on 8 October 1985 a defence was filed, and presumably delivered, on behalf of Qantas. It was short and I set out its text in full:-

"1. The second defendant does not know and
cannot admit the allegations made in
paragraph 1 of the statement of claim.

2. Insofar as the allegations made in
paragraphs 2, 3, 4 and 6 of the statement of
claim relate to the second defendant, the
second defendant denies each and every such
allegation.

3. The second defendant says that the
plaintiffs are not entitled to the orders
sought in paragraphs 8 and 10 of the
statement of claim."

13. The plaintiffs took advantage of the leave to amend the statement of claim and filed a notice of motion dated 20 November 1985 seeking leave to amend the statement of claim yet again. Because of Court commitments the matter could not be dealt with on 2 December 1985 and was adjourned further to 6 December 1985 when submissions on the latest statement of claim proposed were heard. For lack of time they could not be completed on that day nor on 13 December 1985 when the application was adjourned sine die.

14. The matter was again in the list on 7 February 1986 when the plaintiffs sought by notice of motion filed 5 February 1986 leave to amend the statement of claim further. The form of statement of claim proposed was substantially that debated on 6 and 13 December 1985 with some amendments made, it would seem, to meet objections which had been raised on those days. I attach a copy of the proposed statement of claim furnished with the notice of motion of 5 February 1986 as Annexure "C". I will refer to it as the latest amendment.

15. I think that paragraphs 1 and 2 of the latest amendment ought to stand. They are substantially the same as those in the original statement of claim allowed by Brennan J without objection from either defendant. They contain some inessential matter and contain one allegation which may well be wrong but that is a matter to be determined on evidence, not, in the way the case has proceeded, on the pleadings. It is to be noted that the defence delivered on behalf of Qantas evinced no difficulty with the statement of claim as originally amended following the order of Brennan J.

16. The third, fourth and sixth paragraphs of the latest amendment allege conspiracy.

". . . the gist of the tort of conspiracy is
not the conspiratorial agreement alone, but
that agreement plus the overt act causing
damage. It is true that the crime of
conspiracy is the very agreement of two or
more persons to effect an unlawful purpose,
and any overt acts done in pursuance of the
agreement are merely evidence to prove the
fact of the agreement. The tort of
conspiracy, however, is complete only if the
agreement is carried into effect so as to
damage the plaintiff. Accordingly, the acts
done in pursuance of the agreement are an
integral part of the tort: Crofter Hand Woven
Harris Tweed Co. Ltd. v. Veitch [1941] UKHL 2; (1942) AC
435."

Marrinan v. Vibart (1963) 1 QB 234 at pp 238-9, per Salmon J (as he then was) affirmed by the Court of Appeal (1963) 1 QB 528.

17. In Cabassi v. Vila [1940] HCA 41; (1940) 64 CLR 130, McTiernan J, with whom Rich ACJ concurred, said at p 142-3:-

"An averment that the defendants criminally
conspired together would not necessarily in
itself be sufficient to state a good cause of
action. It would be surplusage if the acts
charged to have been done in pursuance of the
conspiracy alleged would, if not so done, be
torts. In Sorrell v. Smith (1925) AC 700
at 716, Lord Dunedin said: 'Passing
therefore, to the case of concerted action,
the first and obvious observation is that if
a combination of persons do what if done by
one would be a tort, an averment of
conspiracy so far as founding a civil action
is mere surplusage.' Where the acts alleged
to have caused damage to the plaintiff would
not be unlawful if not done in execution of a
conspiracy, the averment is an essential part
of the statement of the cause of action,
because the conspiracy imparts the unlawful
character to the acts. In Ware and De
Freville Ltd. v. Motor Trade Association
(1921) 3 KB 40, at pp 90, 91, Atkin LJ.
said: 'It appears to me to be beyond dispute
that the effect of the two decisions in Allen
v. Flood [1997] UKHL 17; (1898) AC 1 and Quinn v. Leathem
[1901] UKHL 2; (1901) AC 495 is this: that on the one hand
a lawful act done by one does not become
unlawful if done with an intent to injure
another, whereas an otherwise lawful act done
by two or more in combination does become
unlawful if done by the two or more in
combination with intent to injure another.'
In Sorrell v. Smith (1925) AC at p 719 Lord
Dunedin approved of this statement, and in
explaining the same principle used these
words:- 'But when there is nothing done which
per se would be a tort, then one is at once
faced by the consideration that a particular
thing done, not in itself a tort, may, if
done by an individual, be supportable though
unpleasant, but may, if done by many in
concert, become insupportable and create a
real injury. . . . As example may be given the
words of Lord Halsbury in Allen v. Flood
[1997] UKHL 17; (1898) AC 1 and many other passages might be
quoted' (1925) AC at p 717. These
statements are not expressed to refer to a
conspiracy to do acts which would be unlawful
apart from the conspiracy; it is pointed out
that if these acts are torts the averment of
conspiracy is surplusage. In the present
case the acts alleged to have been done in
execution of the conspiracy are in themselves
unlawful and criminal. The ground upon which
these acts could give rise, if at all, to a
cause of action would be that they caused
damage to the plaintiff. The conspiracy may
aggravate the damage but it would not play
any part in producing the unlawful quality of
the acts, for they are unlawful in themselves
apart from the conspiracy. If an action lay
the damage, not the conspiracy, would be the
gist of the action."

At p 151, Williams J quoted with approval the dictum of Lord Dunedin that ". . . if a combination of persons do what if done by one would be a tort, an averment of conspiracy so far as founding a civil action is mere surplusage" Sorrell v. Smith (1925) AC at p 716.

18. In Ward v. Lewis (1955) 1 WLR 9, Lord Denning said at p 11:-

"It is important to remember . . . 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."

19. In Galland v. Mineral Underwriters Ltd. (1977) WAR 116, the Full Court of the Supreme Court of Western Australia (Burt CJ and Wallace J, Jones J dissenting) held that a plea of conspiracy to convert, the conversion in fact being alleged, was embarrassing and would be struck out. At p 123, Burt CJ with whom Wallace J concurred said:-

"Once an agreement to commit a tort is found
and it is found that the tort has been
committed pursuant to and in the execution of
that agreement then all the parties to that
agreement, I think, are joint tortfeasors and
it matters not that one party was not
actively engaged in the commission of the
tort."

Without denying that a conspiracy to commit a tort, for example, assault, may conceivably result in damage without the actual commission of the tort in question, it yet seems to me that when the plaintiffs allege conspiracy to arrest wrongly and falsely imprison and allege also the wrongful arrest and false imprisonment, they are precluded from alleging the conspiracy as a separate tort. The object of the conspiracy having been, as they allege, achieved, the tort to be alleged is that of false imprisonment, including, of course, the wrongful arrest.

20. In any event, the statement of claim fails to allege properly the several matters which, as a matter of pleading, should be alleged in respect of the conspiracy charged. I refer to Bullen & Leake & Jacobs' Precedents of Pleadings, 12th edn. 1975 where, at p 341, it is said:-

"The Statement of Claim should describe who
the several parties are and their
relationship with each other. It should
allege the agreement between the defendants
to conspire, and state precisely what was the
purpose or what were the objects of the
alleged conspiracy, and it must then proceed
to set forth, with clarity and precision, the
overt acts which are alleged to have been
done by each of the alleged conspirators in
pursuance and in furtherance of the
conspiracy; and lastly, it must allege the
injury and damage occasioned to the plaintiff
thereby."

21. It follows that the allegations of conspiracy in paragraphs 3, 4 and 6 of the latest amendment must be struck out as embarrassing in the technical sense in which that word is used in pleading.

22. It may be that an allegation of conspiracy properly made may, as was indicated by McTiernan J in the passage from his judgment quoted above, support a claim for aggravated damages and what I have said is not to be taken as precluding the plaintiffs from attempting to amend their pleadings appropriately in that regard. The pleadings would, however, have to meet the criteria set forth in the passage just quoted and be specifically confined to allegations concerning damages and would, no doubt, be subjected to rigorous scrutiny. At the same time I am mindful of the fact that there presently appears to be no absolute requirement that a claim for exemplary, aggravated or punitive damages should be pleaded. Broome v. Cassell & Co. Ltd. (1971) 2 QB 354 and on appeal [1972] UKHL 3; (1972) AC 1027 at p 1083 per Lord Hailsham LC who seems, with great respect, not to have viewed the proposition with enthusiasm. And I note that, following that decision, the English Rules of Court were changed so that by O.18, r.8(3) it is now provided that a claim for exemplary damages must be specifically pleaded together with the facts upon which the party pleading relies.

23. I think the appropriate consideration to be that which appears from the judgment of Lord Selborne LC when, in Millington v. Loring, (1880) 6 QBD 190, presiding over the Court of Appeal, he said at p 195:-

"The only result which, so far as I can see,
follows from these facts (matters in
aggravation of damages) being stated in the
pleadings is one which, so far from being
embarrassing or prejudicial to the defendant,
is in his favour; it is this, that there is
no chance of the defendant being taken by
surprise at the trial by having charges
sprung upon him of which he had no notice.
Assuming that these allegations are untrue,
nothing could embarass the defendant more
than to hear of them for the first time at
the trial. I think therefore that
substantial justice is in favour of allowing
them to be pleaded."

See also Lumb v. Beaumont (1884) 49 LT 772 at p 774, Speidel v. Plato Films Ltd. [1979] UKHL 4; (1961) AC 1090 and PJ. Holdings Australia Pty. Ltd. v. Hughes (1980) QdR. 83.

24. Further as to paragraph 4 of the latest amendment, I proceed on the basis that so much of it as may fairly be said to be the same or, for practical purposes, the same as that which was permitted without objection by Brennan J in the High Court ought to be allowed. Proceeding on that basis it seems to me that the phrase "the plaintiffs were non-residents of Australia" may be of significance and ought to be allowed. However, it is unnecessary and embarrassing to plead the legal result of the alleged non-residence namely, that the plaintiffs were "not legally bound by the Commonwealth of Australia's Constitution and jurisdiction" and that phrase ought to be struck out. So, too, because the allegation of conspiracy must fall, should the phrases "Hong Kong authorities" in line 6, "wilfully and maliciously conspired together then" in line 7 and "contrary to law" appearing in line 13 of the said paragraph. The last says no more than does the phrase "an illegal" appearing in the immediately preceding line.

25. Not without some doubt I think the phrase "intimidation assault and trespass to the persons" appearing in the seventeenth line of paragraph 4 ought not to be struck out. Admittedly each of the allegations is in respect of a separate tort known to the law but as pleaded in the paragraph they are descriptive of the acts which constituted the wrongful arrest and false imprisonment and may be taken as particulars of that wrongful arrest and false imprisonment, as torts separate in themselves, except insofar as they necessarily constitute part of the tort of false imprisonment, or as aggravating the damages which the plaintiffs are entitled to claim.

26. The same considerations that apply to paragraph 4 apply to paragraph 6 save that the words "and the husband and father of the abovementioned plaintiffs" ought to be struck out in addition as irrelevant.

27. As to paragraphs 5 and 7, I appreciate that the categories of negligence are never closed but the allegations made therein are not supported by the facts and do not, in my opinion, support a cause of action known to the law.

28. As to paragraph 8 of the latest amendment I think there has been some confusion between the facts alleged against the defendants and the consequences said to flow from those acts. Accordingly I order that the words "the defendants acted out of spite and malice towards the plaintiffs and the arrests and imprisonments took place in public areas" appearing in lines 4, 5 and 6 of paragraph 8 should be deleted from it and made the subject of a fresh paragraph appearing before paragraph 8, however that paragraph be eventually numbered. It would follow that the word "thereby" appearing in the seventh line of paragraph 8 should be deleted.

29. I am prepared to leave the words "spite and malice" in the context in which they are presently used in paragraph 8 of the latest amendment because I think spite or malice (the two words as used must be taken to mean the same thing) may serve to aggravate any damages suffered by the plaintiffs. The considerations are the same as those arising in connection with conspiracy. Particulars may be sought of the alleged spite and malice and, indeed, of any alleged conspiracy, and if they are not furnished or if, when furnished, they prove insufficient to support the allegations, the matter can no doubt be dealt with further.

30. I think also that the words "wilful malicious misconduct and" ought to be struck out of line 13 of paragraph 8 as embarrassing as should the words "for the defendants arbitrary and unconstitutional conduct and absolute disregard for the plaintiffs legal and human rights which the defendants have abused in a continued oppressive way and apologize" out of lines 20-23 inclusive.

31. The words " and to apologise and for the Court to order the defendants to respect the plaintiffs legal and human rights at all times in future and for the defendants to be ordered to transport us back to Hong Kong where we were illegally forced from in the first instance so we may have peace and finalize all legal matters" appearing in lines 27-32 inclusive should be struck out as being requests for orders which would be inappropriate and are probably beyond the power of the Court to order. Finally the words "of and incidental to our unlawful forced entry into the Commonwealth of Australia" appearing in lines 34-36 inclusive of paragraph 8 should be struck out as irrelevant. The costs which might be ordered to be paid relate to the action and nothing more.

32. In dealing with this matter I have not proceeded on the basis that merely because matter alleged is unnecessary it must be struck out. As to this I refer to the dictum of Devlin LJ (as he then was) in Speidel v. Plato Films Ltd. [1979] UKHL 4; (1961) AC 1090 when that matter was before the Court of Appeal. At p 1104, he said:-

"We are dealing with an application to strike
out a paragraph that is already in the
pleading, and it is not the practice to do
that merely because the matter alleged is
unnecessary. It may be that different
considerations arise when an application is
being made for leave to amend."

I think the better course, in the circumstances of this case and in the exercise of the appropriate discretion, is to go no further than I have. I think that when the words from paragraph 8 of the latest amendment which I have ordered to be relocated are in fact relocated, the latest amendment may be readily pleaded to. I do not think any of it is unnecessary, embarrassing, scandalous or oppressive in the sense in which those words are properly to be understood.