Case: Australian Wool Innovation Ltd v Newkirk [2005] FCA 290
Outcome: applied
The elements of a conspiracy claim were discussed by Hely J in Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [60] - [64] . At [61], his Honour identifies the necessary elements of the tort as follows: (i) a combination or agreement between two or more individuals; (ii) an intent to injure; (iii) the carrying out of certain acts pursuant to that agreement and with that intention; and (iv) loss and damage to the claimant. The elements of the tort of conspiracy are briefly set out in Bullen &amp; Leake &amp; Jacob's Precedents of Pleadings , Vol 2, 15 th edn, Sweet &amp; Maxwell, London, 2004 at [50]. 9 Although the Notice of Motion originally filed by the Novapharm parties challenged the pleadings filed by Sheiman and sought summary dismissal of the proceeding, the Novapharm parties no longer press this point. However, they continue to press the application for security for costs, which I deal with below. 10 Shelston, on the other hand, submits that no cause of action has been disclosed as against it because the only pleadings of conspiracy concerning Shelston relate to its capacity as the authorised agent of the Novapharm parties (by whom Shelston was retained to provide services as a patent attorney). Shelston submits that, since the Novapharm parties are alleged to act in this matter only through Shelston as duly authorised agent, a claim of conspiracy cannot exist as between the corporation and an entity or person who is alleged to have done no more than act as that corporation's duly authorised agent. 17 The submissions advanced by Shelston raise a number of important respects in which Sheiman's pleadings, as presently framed in relation to the conspiracy allegation, are deficient. The deficiencies identified include: &#8226; the use of the expression "or any two or more of the respondents together" without identifying the respondents with greater clarity gives rise to uncertainty and lacks specificity, especially having regard to the very serious nature of the allegations; &#8226; the failure to set out or identify the terms of the alleged agreement to injure; &#8226; the failure to plead the primary facts on which the conclusion of the conspiracy is based (see Australian Wool Innovation [2005] FCA 290 at [68] ); &#8226; the absence of any express allegation of an intention to injure; &#8226; the uncertainty inherent in the repeated references to "and/or" (see, for example, [44] and [45] of the FASC); and &#8226; the objectionable nature of some of the claims for relief, in particular the claim which seeks an order that one of the Novapharm parties abandon or withdraw a patent application, without explaining how such an order relates to any pleaded causes of action or is available under the Patents Act 1990 (Cth). 18 I accept that each of these identified deficiencies exists in the FASC. Accordingly, while I do not think that the FASC is so deficient as to warrant summary dismissal of the proceeding, I am of the view that the particulars concerning the conspiracy claim should be struck out and pleaded afresh. 19 I note at this point that there is an application to remove the eighth respondent, Mr Ian Ernst, from the proceeding on the basis that he is merely an agent for the Novapharm parties, and should therefore not be a respondent in his own right. In my view this matter can be dealt with in the same way as I dealt with Shelston's submissions above, namely that the allegations as presently framed against Mr Ernst should be struck out and an opportunity afforded to Sheiman to reframe its claims against him.