case_text: Lehane J analysed a series of High Court, Full Federal Court and New South Wales Court of Appeal authorities: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282, Toteff v Antonas [1952] HCA 16 ; (1952) 87 CLR 647, Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215, Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1, Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514, Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281, Morgan Corporate Ltd v GWG Leviny Pty Ltd (1995) ATPR 41-414, Munchies Management Pty Ltd v Belperio Pty Ltd (1988) 58 FCR 274 and Netaf Pty Ltd v Bikane Pty Ltd (1990) 26 FCR 305. 327 One of the arguments of the valuer appellant was that the courts below should have restricted damages to the difference between valuation and true value at the time of valuation, in accordance with the Potts v Miller line of cases. The valuer's negligence, it was said, was not the cause of the further loss which resulted from a "supervening event", the fall in the market. The case was thus the converse of Flemington Properties where the defendant valuer had sought to claim the benefit of a post-valuation rise in the market. 328 Two elements of Kenny are relevant for present purposes. First, the retainer of the valuer specifically raised the question of value extending over a period into the future. As McHugh J commented at [59], the terms of the valuation made the case a "poor vehicle" to determine the correctness of the principle for which the valuer contended. Once the true nature of the representation as to value was properly understood, the statements in Potts v Miller , relied on to limit liability to the difference between the loan and the true value at time of the valuation, had no application to the case: at [62]. See also per Gummow J at [80] and per Kirby and Callinan JJ at [121]. 330 By contrast, in Morgan Corporate a majority of the New South Wales Court of Appeal (Meagher and Handley JJA, Mahoney JA dissenting) held that the Potts v Miller rule applied where units in a property trust bought at 82 cents were worth about that at the time of purchase but declined over three months to three cents and were worth one cent at the time of trial. Liability flowed from the defendant's misleading and deceptive conduct in relation to the personal liability of directors of the plaintiff. Thus the wrongdoing in the case did not involve anything in relation to future value. Meagher JA said at 40,592, speaking of a reformulation in Wardley of the Potts v Miller rule, ...one is conscious that the rule ... has as its fundamental postulate that a purchaser of property can always resell it. One knows that this may not always be so. In the present case, for example, it may have been that if the company sought to resell the units once the price of the units began to slide it would have found itself in the position where it could not have sold without redeeming the mortgage yet been unable to redeem the mortgage without recourse to the proceeds of the resale, which might have been insufficient of [sic] that purpose. Suffice it to say that no such case was pleaded or proved. 331 In Flemington Properties at 316 Lehane J disagreed with that statement. But as long as it is kept in mind that the Potts v Miller rule is not a rigid and inflexible one, the negotiability or otherwise of the property in question seems to be both a sensible rationale of the rule and a guide to possible exceptions. 334 Unlike Henderson, Morgan Corporate , and Kenny , the present case on the respondents' version (which, as it happens, I do not accept) is one of general market increase after the transaction. The transaction, however, was one partly caused by the respondents' wrongful conduct. There seems to be an unfairness in a respondent mitigating or eliminating its liability in such circumstances. Had the representations or valuations been true, at the time of trial the property would have been worth more than the representors' or valuer's figure. This is another way of looking at the point McHugh J makes in Kenny . The "true value" at the time of purchase will include an assessment of the prospects for future increase (or decline) in value. When an increase has in fact occurred by the time of trial, it should not affect the Potts v Miller assessment of the aggrieved party's loss: difference between price paid and true value at time of purchase. The exceptional case of unforeseeable boom between purchase or trial does not arise in the present case there is no suggestion of a property boom in North West Coast farming properties between 2001 and 2007. The evidence is all to the contrary.


case_outcome: cited

case_text: Lehane J analysed a series of High Court, Full Federal Court and New South Wales Court of Appeal authorities: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282, Toteff v Antonas [1952] HCA 16 ; (1952) 87 CLR 647, Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215, Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1, Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514, Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281, Morgan Corporate Ltd v GWG Leviny Pty Ltd (1995) ATPR 41-414, Munchies Management Pty Ltd v Belperio Pty Ltd (1988) 58 FCR 274 and Netaf Pty Ltd v Bikane Pty Ltd (1990) 26 FCR 305.


case_text: Lehane J analysed a series of High Court, Full Federal Court and New South Wales Court of Appeal authorities: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282, Toteff v Antonas [1952] HCA 16 ; (1952) 87 CLR 647, Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215, Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1, Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514, Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281, Morgan Corporate Ltd v GWG Leviny Pty Ltd (1995) ATPR 41-414, Munchies Management Pty Ltd v Belperio Pty Ltd (1988) 58 FCR 274 and Netaf Pty Ltd v Bikane Pty Ltd (1990) 26 FCR 305. 325 His Honour at 316 accepted that there was a rule, and certain exceptions to it, where property is acquired as a result of fraud, misrepresentation or misleading and deceptive conduct. The rule is that the usual measure of damage is the difference between the real value of the property at the time of purchase and what the plaintiff paid for it: see eg Gould at 220. An example of an exception is where the purchaser of a business continues to trade, either because he has no real alternative or because he has not become aware of the fraud, and incurs further losses which are not represented by the difference between the price and value of the business: Gould at 221. Lehane J at 316 said that ...the rule seems really to be based upon considerations of causation and, possibly, foreseeability and to be a rule at least the usual effect of which is to limit the damages recoverable to so much as may reasonably be supposed to have been caused by the inducing conduct; that, of course explains not only the rule itself but also the exceptions. His Honour concluded at 317 that the Court should not be "over zealous in applying the particular rule [loss is difference between price paid and value at time of purchase] at the expense of the more general principle [limiting damage to that reasonably caused by the inducing conduct]". The cases dealt with how loss was to be measured, rather than the prior question whether any loss has been caused. The money and money's worth which the applicant had obtained within five years of the purchase were to be taken into account and accordingly it had suffered no loss.


case_title: Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1


case_title: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514


case_title: Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281


case_text: Lehane J analysed a series of High Court, Full Federal Court and New South Wales Court of Appeal authorities: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282, Toteff v Antonas [1952] HCA 16 ; (1952) 87 CLR 647, Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215, Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1, Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514, Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4 ; (1995) 184 CLR 281, Morgan Corporate Ltd v GWG Leviny Pty Ltd (1995) ATPR 41-414, Munchies Management Pty Ltd v Belperio Pty Ltd (1988) 58 FCR 274 and Netaf Pty Ltd v Bikane Pty Ltd (1990) 26 FCR 305. 330 By contrast, in Morgan Corporate a majority of the New South Wales Court of Appeal (Meagher and Handley JJA, Mahoney JA dissenting) held that the Potts v Miller rule applied where units in a property trust bought at 82 cents were worth about that at the time of purchase but declined over three months to three cents and were worth one cent at the time of trial. Liability flowed from the defendant's misleading and deceptive conduct in relation to the personal liability of directors of the plaintiff. Thus the wrongdoing in the case did not involve anything in relation to future value. Meagher JA said at 40,592, speaking of a reformulation in Wardley of the Potts v Miller rule, ...one is conscious that the rule ... has as its fundamental postulate that a purchaser of property can always resell it. One knows that this may not always be so. In the present case, for example, it may have been that if the company sought to resell the units once the price of the units began to slide it would have found itself in the position where it could not have sold without redeeming the mortgage yet been unable to redeem the mortgage without recourse to the proceeds of the resale, which might have been insufficient of [sic] that purpose. Suffice it to say that no such case was pleaded or proved.


case_title: Munchies Management Pty Ltd v Belperio Pty Ltd (1988) 58 FCR 274


case_title: Netaf Pty Ltd v Bikane Pty Ltd (1990) 26 FCR 30


case_text: In Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25 ; (1999) 199 CLR 413 a valuer valued a property at $5.5m and recommended it as suitable for the investment of trust funds on mortgage to the extent of 65 per cent of its valuation for a term of three to five years. A mortgage insurer insured a mortgage for that percentage of the valuation. Upon default by the mortgagor, the property was sold for $2.65m. The trial judge (Lindgren J) found the valuer to have been negligent and that the true value at the time of valuation was $3.9m-$4m. The High Court held that the insurer could recover the full amount of the loss, and not just the difference between the valuation and the true value. 328 Two elements of Kenny are relevant for present purposes. First, the retainer of the valuer specifically raised the question of value extending over a period into the future. As McHugh J commented at [59], the terms of the valuation made the case a "poor vehicle" to determine the correctness of the principle for which the valuer contended. Once the true nature of the representation as to value was properly understood, the statements in Potts v Miller , relied on to limit liability to the difference between the loan and the true value at time of the valuation, had no application to the case: at [62]. See also per Gummow J at [80] and per Kirby and Callinan JJ at [121]. 329 Another example of a wrongdoer being liable for fluctuations in value over a period was Henderson v Amadio Pty Ltd (No 1) (1995) 62 FCR 1. That case concerned an investment scheme for a purchase of a building leased to Coles Myer financed by a mortgage back to the vendor for a three year term, the scheme being sold on a promise of consistently increasing value over a much longer period; see at 198. Investors were hit by the catastrophic collapse of the Melbourne commercial property market in the early 1990s. In declining to apply a strict price less true value at time of purchase approach I relied on the English Court of Appeal decision in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1995] QB 375. (Subsequently that decision was reversed by the House of Lords: Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1996] UKHL 10 ; [1997] AC 191. However, in Kenny the High Court preferred the Court of Appeal's decision.) In Henderson at 199 I characterised the scheme and its future value elements by a nautical metaphor: The Coles Myer building investment scheme was like an overloaded and unseaworthy ship setting out on a long voyage. Given exceptionally fair winds and calm seas she might conceivably have reached her destination. However, she was always to be at severe risk from ordinary perils of the seas. The fact that what sunk her was a cyclone of 50-year severity hardly absolves those who caused her to be put to sea. 332 The second Kenny element is related to the first. It turns on the nature of a valuation. As already noted, that case concerned a market decline between transaction and trial. McHugh J at [48] pointed out that insofar as a decline in the market was reasonably foreseeable, it will already be factored into the assessment of the true value of the property as at the date of valuation. Present value cannot be divorced from future prospects: at [52]. His Honour observed (ibid): The true value of a property on a particular day therefore reflects the likelihood of any risk that the price for the property in the reasonably foreseeable future will rise or fall on what it would have fetched the day before. If not reasonably foreseeable, any loss arising from the decline must be regarded as outside the contemplation of the parties to the valuation arrangement and not recoverable. However, the particular arrangements in that case meant that the valuer was giving a warranty as to the value of the property over the next five years. This took the case out of the general rule: see at [58]-[62]. See also per Gummow J at [80]. 333 In the present case the property in question was a freely negotiable commodity, farming land in a well established farming area. True it is the purchase of the Robinson properties was part of a larger joint venture arrangement. However, this did not impose any restriction on the purchaser's reselling. 334 Unlike Henderson, Morgan Corporate , and Kenny , the present case on the respondents' version (which, as it happens, I do not accept) is one of general market increase after the transaction. The transaction, however, was one partly caused by the respondents' wrongful conduct. There seems to be an unfairness in a respondent mitigating or eliminating its liability in such circumstances. Had the representations or valuations been true, at the time of trial the property would have been worth more than the representors' or valuer's figure. This is another way of looking at the point McHugh J makes in Kenny . The "true value" at the time of purchase will include an assessment of the prospects for future increase (or decline) in value. When an increase has in fact occurred by the time of trial, it should not affect the Potts v Miller assessment of the aggrieved party's loss: difference between price paid and true value at time of purchase. The exceptional case of unforeseeable boom between purchase or trial does not arise in the present case there is no suggestion of a property boom in North West Coast farming properties between 2001 and 2007. The evidence is all to the contrary. 354 In MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 140 ALR 313 at 356 ( Kenny at first instance) Lindgren J held that a valuation report in that case conveyed representations not only that the opinions expressed in them were held but also (a) that the opinions were based on reasonable grounds, (b) were the product of the exercise of due care and skill and (c), after making due allowance for their nature as opinions as to the market value of real estate at a particular time, safe to be relied upon and not outside the range of latitude properly to be allowed to them. The same can be said of the Mantach valuations in the present case. 356 The valuations of Mr Austin, which I accept, and even Mr Cripps, establish that there was here a gross overvaluation, which in itself is evidence of negligence: Baxter v F W Gapp Co Ltd [1939] 2 KB 271 at 277, Kenny (at first instance) at 335-337. This is confirmed by what happened when the properties were put up for sale in 2004: [139]-150] above. There were also identifiable errors, especially in the assessment of the croppable areas, but also in the use of some of the comparable sales and the inherently unreliable "catch-all" approach. 375 Gaudron A-CJ and Hayne J pointed out at [19] that if regard were to be had to culpability there would be "much to be said" for the view that the vendor's culpability and its causal significance were of such a different order from the conduct of the solicitor that no contribution should be ordered. The vendor's misleading conduct was a positive inducement to the purchaser whereas the solicitor's omission to advise further enquiries "merely had the consequence that (the vendor's) misleading conduct remained undetected". In similar vein McHugh J observed at [59] that it would be "absurd" to suggest that a person who stole money and was ordered to repay it could obtain contribution from a person who negligently failed to safeguard the money. In substance, his Honour thought, there was no difference between that example and the instant case. 376 A factor which much influenced the majority's approach was that the contribution would have the effect of repaying to the vendor half of the ill-gotten gains which he had to disgorge to the purchaser: per Gaudron A-CJ and Hayne J at [22], per McHugh J at [65]. Also, as the latter pointed out at [66], contribution would be inconsistent with the policy considerations behind Pts V and VI of the Trade Practices Act . Contribution would enable a person in breach of s 52 to profit by its contravention of the Act. The vendor would be able to obtain $375,000 from the solicitor even though its misleading and deceptive conduct had misled him (as well as the purchaser). 377 In the present case the application of those principles mandates a conclusion that the Robinsons, whose conduct misled and deceived Mantach as well as the applicant, are not entitled to contribution from the former. 378 Mantach is entitled on its cross claim to recover from the Robinsons the amount of its liability to the applicant. However, this liability would not extend to the third respondent Robertson Investment Capital, whose only role has been the passive one of lessee of the Broadmoor homestead block. 379 The applicant is entitled to judgment against Kestrel Holdings, Nicolas Robinson and Mantach for damages being the difference between the price paid for Broadmoor and Lower Wilmot and the true value of those properties at the time of purchase as assessed by Mr Austin, together with expenses and interest as detailed above. 380 The claim to set aside the lease of the Broadmoor homestead block is dismissed.


case_text: Another example of a wrongdoer being liable for fluctuations in value over a period was Henderson v Amadio Pty Ltd (No 1) (1995) 62 FCR 1. That case concerned an investment scheme for a purchase of a building leased to Coles Myer financed by a mortgage back to the vendor for a three year term, the scheme being sold on a promise of consistently increasing value over a much longer period; see at 198. Investors were hit by the catastrophic collapse of the Melbourne commercial property market in the early 1990s. In declining to apply a strict price less true value at time of purchase approach I relied on the English Court of Appeal decision in Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1995] QB 375. (Subsequently that decision was reversed by the House of Lords: Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1996] UKHL 10 ; [1997] AC 191. However, in Kenny the High Court preferred the Court of Appeal's decision.) In Henderson at 199 I characterised the scheme and its future value elements by a nautical metaphor: The Coles Myer building investment scheme was like an overloaded and unseaworthy ship setting out on a long voyage. Given exceptionally fair winds and calm seas she might conceivably have reached her destination. However, she was always to be at severe risk from ordinary perils of the seas. The fact that what sunk her was a cyclone of 50-year severity hardly absolves those who caused her to be put to sea.


case_title: Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1995] QB 375


case_title: Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1996] UKHL 10 ; [1997] AC 191


case_text: In Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8 ; (1997) 188 CLR 241, a claim brought by a financier against the auditors of a borrower corporation, the High Court held that the statement of claim did not disclose a cause of action in negligence against the auditors. Brennan CJ said at 252 ...that mere foreseeability of the possibility that a statement made or advice given by A to B might be communicated to a class of which C is a member and that C might enter into some transaction as the result thereof and suffer financial loss in that transaction is not sufficient to impose on A a duty of care owed to C in the making of the statement or the giving of the advice. However his Honour went on to say: But, in every case, it is necessary for the plaintiff to allege and prove that the defendant knew or ought reasonably to have known that the information or advice would be communicated to the plaintiff, either individually or as a member of an identified class, that the information or advice would be so communicated for a purpose that would be very likely to lead the plaintiff to enter into a transaction of the kind that the plaintiff does enter into and that it would be very likely that the plaintiff would enter into such a transaction in reliance on the information or advice and thereby risk the incurring of economic loss if the statement should be untrue or the advice should be unsound. If any of these elements be wanting, the plaintiff fails to establish that the defendant owed the plaintiff a duty to use reasonable care in making this statement or giving advice. The statement of claim does not plead these elements. 338 The significance of the pleading in that case was pointed out by Gaudron J in Perre v Apand Pty Ltd [1999] HCA 36 ; (1999) 198 CLR 180 where her Honour said at [30] that in Esanda : ...it was not pleaded that the auditors in question knew or ought to have known that a finance provider would rely on their audited statement of accounts and thus, it was held, on the pleadings, that no duty of care was owed by the auditors to the finance provider. In the present case that matter has been pleaded in par 39A of the statement of claim. 339 An identified class in the sense used by Brennan CJ would include the class of persons who were clients of Boyds and who had requested Boyds to seek the advice of valuers in relation to these particular properties, where Boyds themselves were providing other financial advice. The circumstance that a Melbourne firm of accountants was seeking valuations of farming properties in Tasmania itself tends to show that the valuations were not being sought by the accountants themselves acting as principals. 340 In Ta Ho Ma Pty Ltd v Allen [1999] NSWCA 202 ; (1999) 47 NSWLR 1 Giles JA said at [17]: So a valuer who puts out a negligent valuation does not incur an open ended liability to any and every financier who relies on it, even if it was reasonably foreseeable that the financier would rely on it. The particular financier may be outside the class of person to whom the valuer owes a duty to take care in making the statement in the valuation, in the same manner as Esanda was outside the class of persons to whom the auditors owed a duty of care on the case as pleaded in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8 ; (1997) 188 CLR 241; the auditors owed a duty of care to the members of Excel, but not to Esanda.


case_text: The significance of the pleading in that case was pointed out by Gaudron J in Perre v Apand Pty Ltd [1999] HCA 36 ; (1999) 198 CLR 180 where her Honour said at [30] that in Esanda : ...it was not pleaded that the auditors in question knew or ought to have known that a finance provider would rely on their audited statement of accounts and thus, it was held, on the pleadings, that no duty of care was owed by the auditors to the finance provider. In the present case that matter has been pleaded in par 39A of the statement of claim. 343 Perre , a decision of the High Court handed down shortly after Ta Ho Ma , demonstrates the flexibility and pragmatism of the law of negligence in identifying the class of persons to whom a duty of care is owed in a particular case and the absence of any bright line rule: see per Gleeson CJ at [7]. It was held that the defendant, which brought infected seed potatoes on to a farm in South Australia, owed a duty of care to growers within 20 kilometres of the farm because such persons would be prevented by Western Australian law from exporting potatoes to that State. The plaintiffs "were members of a class whose members, whether numerous or not, were ascertainable by (the defendant)": per McHugh J at [50].


case_outcome: discussed

case_text: In Ta Ho Ma Pty Ltd v Allen [1999] NSWCA 202 ; (1999) 47 NSWLR 1 Giles JA said at [17]: So a valuer who puts out a negligent valuation does not incur an open ended liability to any and every financier who relies on it, even if it was reasonably foreseeable that the financier would rely on it. The particular financier may be outside the class of person to whom the valuer owes a duty to take care in making the statement in the valuation, in the same manner as Esanda was outside the class of persons to whom the auditors owed a duty of care on the case as pleaded in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8 ; (1997) 188 CLR 241; the auditors owed a duty of care to the members of Excel, but not to Esanda. 341 In Ta Ho Ma an owner of property obtained a valuation from the defendant. Some 81/2 months later the owner telephoned a solicitor (apparently not the owner's own solicitor) seeking a loan and advising of the valuation. The solicitor in turn contacted the plaintiff who advanced a loan on the basis of the defendant's valuation which by this time was 91/2 months old. The Court of Appeal held that the defendant owed no duty of care to the plaintiff because, having regard to the age of the valuation, there could be no expectation of reasonable reliance by the plaintiff: see per Handley JA at [12]-[14], per Giles JA at [18], [24], [28], per Sheppard AJA at [105]. 342 The case is certainly not authority for any proposition that a valuer only owes a duty of care to the client who directly retains him or her. If that were the law, there would have been a short answer to the plaintiff's claim since the chain went from valuer defendant to owner to solicitor to lender plaintiff. On the facts, as Handley JA noted at [6], it was not a case where the valuer contemplated that a class of persons might rely on his valuation. Giles JA at [24] pointed out that where a valuer puts out a negligent valuation the class of persons to whom to whom the duty of care ...will normally be confined, apart from any other considerations, to those persons whom the valuer knows or ought to know will reasonably rely on the valuation. [Emphasis in original] In other words, given expectation of reasonable reliance, there can be a duty owed by a valuer to a class of persons. The identification of that class will obviously depend on the circumstances. 343 Perre , a decision of the High Court handed down shortly after Ta Ho Ma , demonstrates the flexibility and pragmatism of the law of negligence in identifying the class of persons to whom a duty of care is owed in a particular case and the absence of any bright line rule: see per Gleeson CJ at [7]. It was held that the defendant, which brought infected seed potatoes on to a farm in South Australia, owed a duty of care to growers within 20 kilometres of the farm because such persons would be prevented by Western Australian law from exporting potatoes to that State. The plaintiffs "were members of a class whose members, whether numerous or not, were ascertainable by (the defendant)": per McHugh J at [50].


case_outcome: applied

case_text: A disclaimer in almost identical terms was relied on by a valuer defendant in BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221. The first plaintiff (BT) was the trustee of a property trust, the second plaintiff was the custodian trustee of assets of superannuation funds of which BT was manager, and the third plaintiffs were the trustees of various superannuation funds which had invested in the trust. Wootten J at 236 held that the first part of the disclaimer impliedly accepts responsibility for the use of the valuations by BT, but not for its use for any other purpose. The second part disclaimed responsibility to any third party. The second part was to be read as not disclaiming responsibility for damage to a third party by the very use of the valuation by BT for which the valuer in the first part of the clause impliedly accepted responsibility. 349 His Honour noted that the disclaimer clause was unilaterally framed and inserted by the valuer, and if it was intended to disclaim responsibility for the consequences of its use for the very purpose for which it was obtained it was reasonable to expect the valuer to say so in clear words. 350 I think the same conclusion is to be reached in the present case. Also, by a slightly different route it can be said that, construing the clause contra proferentem , "the party to whom it is addressed" comprehends Boyds and also its clients, given the circumstance that, as already discussed, the obvious inference is that the firm is acting on behalf of clients. 351 As to the misleading and deceptive conduct claim ([35]-[38] above) it was submitted that Mr Mantach simply stated what he had done and what he had been told: he had scaled off the map and the owner had instructed him that the area of land used for cropping purposes was 82 ha. His statements of value were expressions of opinion. Valuation, it was said, is an art not a science.


case_text: However, what Mr Mantach said in the valuations as to croppable area was a matter of "hard physical fact"; see John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR 41-249 at 41,359 cited with implicit approval by the High Court in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [65] . John G Glass dealt with a misrepresentation by a vendor's agent as to net lettable area of a commercial building, something obviously analogous to croppable area of a rural property.


case_title: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592


case_text: An expression of opinion as to value may constitute misleading and deceptive conduct if the valuer does not in fact genuinely hold the opinion in question (not suggested in the present case) or (as is submitted) there is not some proper foundation for it: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc [2002] FCA 860 ; (2002) 120 FCR 191 at [124] .


case_outcome: followed

case_text: In MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 140 ALR 313 at 356 ( Kenny at first instance) Lindgren J held that a valuation report in that case conveyed representations not only that the opinions expressed in them were held but also (a) that the opinions were based on reasonable grounds, (b) were the product of the exercise of due care and skill and (c), after making due allowance for their nature as opinions as to the market value of real estate at a particular time, safe to be relied upon and not outside the range of latitude properly to be allowed to them. The same can be said of the Mantach valuations in the present case.


case_text: The valuations of Mr Austin, which I accept, and even Mr Cripps, establish that there was here a gross overvaluation, which in itself is evidence of negligence: Baxter v F W Gapp Co Ltd [1939] 2 KB 271 at 277, Kenny (at first instance) at 335-337. This is confirmed by what happened when the properties were put up for sale in 2004: [139]-150] above. There were also identifiable errors, especially in the assessment of the croppable areas, but also in the use of some of the comparable sales and the inherently unreliable "catch-all" approach.


case_text: In June 2004 Mr Medwin submitted a marketing proposal to Mr MacDonald. It stated that Broadmoor had "40 hectares of pine [ sic ] cropping land in a sort [sic] after area" and that at Lower Wilmot "52 hectares is prime cropping land". The proposal gave estimated prices of $600,000 to $650,000 for Broadmoor and $420,000 to $460,000 for Lower Wilmot. 146 The proposal recommended sale by auction with advertising over a five week period in specified Tasmanian newspapers and internet display. In his evidence Mr Medwin defended the length of the advertising campaign, saying the longer you give purchasers, the more likely they are to procrastinate. Intensive and short advertising campaigns are more likely to attract the market. 147 On 19 June 2004 Mr Medwin received an email from Mr Youl in which Mr Youl calculated the "total cropping area" for Broadmoor as approximately 40 hectares plus probably 5 to 7 hectares taken up with the dam gully, existing dam chemical storage area sheds and access roads, the balance of the 122.43 hectares being existing forest and a small mix of potential cropping land now planted with trees by FEA with the remaining steeper land not suitable for cropping now also planted out with trees. Mr Youl calculated the total cropping area for Lower Wilmot as approximately 60 hectares with the balance of 147.05 hectares taken up with existing forest and non-cropping ground now committed to trees planted by FEA, existing dam areas, ground storage areas, chemical wash down area with evaporation pit, overhead tank and access roads. 367 However, the provision applies only to causes of action that arise on or after the day on which Sch 3 to the amending Act commenced, which was 26 July 2004. Here the cause of action arose in August 2001 when the purchases were completed and the applicant, in exchange for money, acquired properties worth substantially less than their true value. At that moment the applicant suffered actual loss, not just the possibility of future loss, however likely. The case is therefore different from cases of contingent loss such as Wardley and King v Yurisich [2006] FCAFC 136 ; (2006) 153 FCR 78 at [67] . 368 In respect of the claims under ss 14 and 17 (1)(b) of the Fair Trading Act 1990 (Tas), the reduction provision in s 4 of the Wrongs Act 1954 (Tas) would apply. However, if the applicant has a non-reducible claim under the Trade Practices Act , this would have no practical effect. 369 In any case, I see no factual basis for a finding of contributory negligence. As counsel for the applicant fairly put it, his client was firmly in the hands of vendors who were dishonest and professional advisors (ie Mantach) who were negligent. There was nothing to put them on notice as to these dangers. In the resale or attempted resale of the properties, the applicant acted reasonably. It retained Mr Medwin, a very experienced and reputable local agent. The marketing program was, for the reasons explained by Mr Medwin, reasonable and appropriate for properties of this kind [146-150] above.


case_text: Apportionment between a misleading and deceptive vendor and a negligent professional advisor of a purchaser was the subject of the High Court's decision in Burke v LFOT Pty Ltd [2002] HCA 17 ; (2002) 209 CLR 282. The vendor of a commercial property had made misleading and deceptive representations to a purchaser concerning the reliability and solvency of a tenant of the property. The purchaser was awarded damages of $750,000 being the difference between the price and the true value of the property at the time of purchase. The vendor sought contribution from the purchaser's solicitor who was found to be negligent in not advising the purchaser to inquire about the financial standing of the tenant. The trial judge held that the vendor was entitled to 50 per cent contribution from the solicitor. A majority of the Full Court upheld this order but it was set aside by a majority of the High Court: Gaudron A-CJ, McHugh, Hayne and Callinan JJ, Kirby J dissenting.


case_outcome: affirmed

case_text: This appeal is from a judgment of the Federal Magistrates Court of Australia in MZXRN v Minister for Immigration and Anor [2008] FMCA 729 , delivered on 14 April 2008. The learned federal magistrate dismissed an application by the appellant seeking to overturn a decision of the Refugee Review Tribunal ("the Tribunal"), made on 30 May 2007 and delivered on 8 June 2007. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, now the Minister for Immigration and Citizenship, (in both cases, "the Minister") to refuse to grant to the appellant a protection visa. 2 The appellant is a citizen of Sri Lanka. Relevantly to the present case, he arrived in Australia on 25 July 2006, in possession of a visa entitling him to visit Australia for three months. On 7 September 2006, the appellant applied for a protection visa. By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as "Protection Visas." A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to call those two instruments, taken together, "the Convention." For present purposes, it is sufficient to note that the Convention provides that Australia has protection obligations to any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country 3 The appellant claimed that he had a well-founded fear of persecution because of his political opinion, if he should return to Sri Lanka. In support of his application for a protection visa, and of his application to review the decision of the Minister's delegate, the appellant provided a very substantial amount of detailed information. He claimed to have been an active member of an opposition political party known as the UNP in Sri Lanka, whose members have been persecuted by the Peoples Alliance, a party in government. The information he supplied included accounts of incidents in which the appellant claimed to have been beaten severely and to have received threats of death to himself, his wife and his son. It is fair to say that if all of his evidence had been accepted, the appellant would have been entitled to a protection visa. 4 The Tribunal did not accept all of the appellant's evidence. It accepted that he had the sort of detailed knowledge that supported his claim to have been actively involved in the UNP. The Tribunal did not accept that the appellant had suffered the assaults that he claimed, or that he had received the threats that he claimed. In part, this was because, in making his application for his visitor's visa and in making his application for a protection visa, the appellant had concealed information about his previous visits to Australia. On one of those visits the appellant had lived in Australia for three years during a period in which he claimed he was living and working in Sri Lanka. The Tribunal did not accept the appellant's explanations for this non-disclosure. In addition, the Tribunal found that documents presented to the Tribunal by way of supporting the appellant's case as to the assaults he claimed to have suffered were substantially less than ought to have been available in the Tribunal's view. Again, the Tribunal did not accept the appellant's explanation for the absence of detailed information of a medical nature. The Tribunal also found that there were a number of other inconsistencies in the account that the appellant gave. 5 In the result the Tribunal found that the appellant had not experienced persecution in the past for reasons of his political opinion. It found that there was not a real chance of persecution in Sri Lanka in the foreseeable future for a Convention reason. The Tribunal considered that the appellant's claims were not genuine, but that he had attempted to fashion his political background into a refugee claim for the purpose of securing a right to live in Australia, which he had previously failed to achieve.


case_text: The principles to be applied in dealing with an application such as the present are laid down in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 9 In my opinion the learned Magistrate's decision is not attended with sufficient doubt to warrant its reconsideration by this Court. The decision was not made in chambers. It was made following an oral hearing in open Court on 23 May 2006. Reasons were provided. 10 Accordingly, the application for leave to appeal is dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 14 November 2006 Counsel for the Applicant: No Appearance Counsel for the Respondent: Ms F Kerr Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 14 November 2006 Date of Judgment: 14 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1575.html


case_text: discussed this question of the required state of mind of the inducer in a case of inducing breach of contract in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1995] FCA 1368 ; (1995) 58 FCR 26 ( Allstate ) at 43 (in a judgment with which Lockhart and Tamberlin JJ agreed). Malice, in the sense of spite or ill will, is not an element of that tort: Zhu v Treasurer of the State of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530 at [114] ; cf Northern Territory of Australia v Mengel (1995) 185 CLR 307 ( Mengel ) at 341-342.


case_text: leading authority for that proposition is the judgment of Scott LJ in Bruce v Odhams Press, Limited [1936] 1 KB 697. His Lordship described the difference between a statement of material facts and particulars in the following terms (at 711): [A] radical distinction, and none the less so that in cases near the dividing line there is a penumbra where the two may and often do overlap, just as between night and day there is zone of doubt which we call dusk. His Lordship said (at 712) that a statement of the material facts is a statement of the facts necessary to constitute a complete cause of action. He said that "particulars" are not to be used in order to fill material gaps in a statement of claim. His Lordship said (at 712-713): The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a "material fact" and a "particular" piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them. Bruce v Odhams Press, Limited was a defamation case. The defendant company had published a newspaper article which referred to certain aeroplane smuggling exploits of "an Englishwoman". By her statement of claim, the plaintiff merely asserted that these words were meant and were understood to mean her. This was held to be failure to plead material facts. It was necessary for the plaintiff to plead extrinsic facts on which she would rely to link the words "an Englishwoman" to herself. In H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd , above, Northrop J, following Scott LJ in Bruce v Odhams Press, Limited , rejected (at 187) an argument that the particulars to a paragraph of a statement of claim should be treated as a statement of material facts for the purposes of the Federal Court Rules .


case_text: respondents cite H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd (1979) 30 ALR 181 ; 40 FLR 242 and Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 for the proposition that the material facts must be stated in the text of a pleading, not in "particulars". In H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd , above, Northrop J, following Scott LJ in Bruce v Odhams Press, Limited , rejected (at 187) an argument that the particulars to a paragraph of a statement of claim should be treated as a statement of material facts for the purposes of the Federal Court Rules .


case_text: present case is not one of the Commonwealth officers' having induced Rotary or Mr Whittaker or both to decide to breach contracts giving rise to a secondary liability of the Commonwealth to the other contracting parties. Yet counsel for the applicants cited Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 , a case of inducement of a breach of contract. If it is anything, the present case is one of direct interference by unlawful means with the performance by Rotary and Mr Whittaker of the respective contracts.


case_text: is, however, a more fundamental question which was also not raised on the hearing. This is whether the action lies for the benefit of Mr Whittaker and Rotary at all. The action for inducement of breach of contract does not lie for the benefit of the contract breaker. It lies only for the benefit of the other contracting party. Much of the debate on the hearing treated the claim as a species of inducement of breach of contract of the Lumley v Gye (1853) 2 El & Bl 216 (118 ER 749) kind, yet this point was not raised. Is the position different when the claim is for direct interference with contractual relations by unlawful means? It may well be. On the other hand, the argument is open that it is no different, and that the applicants' remedy includes a claim for their economic loss in the damages they seek to recover for some other tort, such as, false imprisonment. In conclusion, the "Heads of Loss and Damage" document filed by the applicants on 24 April 2008 showed that the allegation is not that the supply contract was breached, but that additional costs were incurred by the applicants in connection with its performance. Again, on the hearing it seems to have been assumed by both counsel that the applicants' claim was that the Commonwealth, through its officers, had prevented performance of the contracts. Paragraphs 8 and 9 will be struck out with leave to replead. The most careful consideration will need to be given as to what cause of action, if any, can properly be pleaded in their place. If claims are to be pursued for direct interference with contractual relations by unlawful means, they must be separately pleaded in respect of each applicant and each of the three contracts. Interference with trade paragraph 10


case_text: is no substance in these attacks: see Luton v Lessels [2002] HCA 13 ; (2002) 210 CLR 333. Mr Whittaker has previously taken these contentions to the stage of a special leave application before the High Court: see Whittaker v Child Support Registrar [2004] HCATrans 252. Special leave was refused. Previously Mr Whittaker's judicial power argument was rejected by Drummond J in Whittaker v Child Support Registrar [2000] FCA 1733 ; (2000) 106 FCR 105 and Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1429. His taxation power argument was rejected by Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430. On appeal, the Full Court held that Luton v Lessels "foreclos[ed] any constitutional challenge" ( Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] ). As noted above, the High Court refused special leave to appeal. Further, an attempt to limit the scope of the operation of Luton v Lessels failed in Weekes and Child Support Registrar [2006] FLC p93-273 ; [2006] FamCA 598. Mr Whittaker (in person with leave) submitted that Luton v Lessels does not constitute a binding precedent because the originating process on the High Court file in that case did not bear the seal of the High Court. The submission is devoid of merit. I also note that the deletion of para 1 in the further amended application was consistent with an abandonment of the submission. Torts in relation to tax file numbers paragraphs 28, 29 and 31 These paragraphs are as follows: Further or alternatively, prior to making the DPO on or about 6 December 2006, the First Respondent negligently or in breach of his duty of confidence to the First Applicant used the First Applicant's tax file number to identify the First Applicant for the purpose of making the DPO. Particulars The First Respondent did not at any time make a request to the First Applicant to give the First Respondent a written statement of the First Applicant's tax file number under section 16B of the Child Support (Registration & Collection) Act 1988 or otherwise. The First Applicant did not at any time give to the First Respondent a written statement of the First Applicant's tax file number. The First Applicant did not at any time give to the First Respondent a written statement of any kind authorising the Commissioner of Taxation to provide the First Respondent with information about the First Applicant, including tax file numbers, being information that is in the possession of the Commissioner of Taxation. The First Applicant did not at any time give to the First Respondent a statement in writing that the First Applicant has a tax file number but does not know what it is and has not asked the Commissioner of Taxation to inform the First Applicant of the First Applicant's tax file number and authorising the Commissioner of Taxation to tell the First Respondent the tax file number. The First Applicant did not at any time give to the First Respondent a statement in writing that the First Applicant has an application for a tax file number pending and authorising the Commissioner of Taxation to tell the First Respondent if a tax file number is issued to the First Applicant that number or if the application is refused that the application has been refused or if the application is withdrawn that the application has been withdrawn. The First Respondent did, without lawful basis, require the Commissioner of Taxation to provide the First Respondent with information about the First Applicant, including the First Applicant's tax file number and/or, without lawful basis, accessed confidential or private information, including the First Applicant's tax file number, being information that was in the possession of the Commissioner of Taxation. The First Respondent did, without the consent or authority of the First Applicant, obtain the First Applicant's tax file number, stored and maintained a record of the said tax file number and used the said tax file number in connection with the First Applicant's identity in breach of section 8WB of the Taxation Administration Act 1953 and/or in breach of the Privacy At 1988. The First Applicant reserves the right to supplement or amend these particulars after discovery. As a result of the negligence or breach of duty of the First Respondent his servants or agents the First Applicant has suffered loss and damage. Particulars Particulars exceed 3 folios and are supplied separately. 30. . Further, or alternatively, the First Respondent negligently or in breach of his duty of confidence to the First Applicant used the First Applicants' tax file number to identify the First Applicant for the purpose of administratively assessing the First Applicant's purported liability pursuant to Part V of the Child Support (Assessment) Act 1989 namely the assessment made or determined on or shortly prior to December 2006 that the First Applicant was a person who has a child support liability. Particulars The First Respondent did not at any time make a request to the First Applicant to give the First Respondent a written statement of the First Applicant's tax file number under section 150B of the Child Support (Assessment) Act 1989 . The First Applicant did not at any time give to the First Respondent a written statement of the First Applicant's tax file number. The First Applicant did not at any time give to the First Respondent a written statement of any kind authorising the Commissioner of Taxation to provide the First Respondent with information about the First Applicant, including tax file numbers, being information that is in the possession of the Commissioner of Taxation. The First Applicant did not at any time give to the First Respondent a statement in writing that the First Applicant has a tax file number but does not know what it is and has asked the Commissioner of Taxation to inform the First Applicant of the First Applicant's tax file number and authorising the Commissioner of Taxation to tell the First Respondent the tax file number. The First Applicant did not at any time give to the First Respondent a statement in writing that the First Applicant has an application for a tax file number pending and authorising the Commissioner of Taxation to tell the First Respondent if a tax file number is issued to the First Applicant that number or if the application is refused that the application has been refused or if the application is withdrawn that the application has been withdrawn. The First Respondent did, without lawful basis, require the Commissioner of Taxation to provide the First Respondent with information about the First Applicant, including the First Applicant's tax file number and/or, without lawful basis, accessed confidential or private information, including the First Applicant's tax file number, being information that was in the possession of the Commissioner of Taxation. The First Respondent did, without the permission or authority of the First Applicant, obtain the First Applicant's tax file number, store and maintain a record of the said tax file number and use the said tax file number in connection with the First Applicant's identity to determine the First Applicant's Child Support Income amount and the said assessment of child support liability. Section 16B of the Collection Act, referred to in the ASC, provides that the Registrar may request, but not compel, a person who is a payer or payee in relation to a registrable maintenance liability to give the Registrar a written statement of the person's tax file number.


case_text: discussed this question of the required state of mind of the inducer in a case of inducing breach of contract in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1995] FCA 1368 ; (1995) 58 FCR 26 ( Allstate ) at 43 (in a judgment with which Lockhart and Tamberlin JJ agreed). Malice, in the sense of spite or ill will, is not an element of that tort: Zhu v Treasurer of the State of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530 at [114] ; cf Northern Territory of Australia v Mengel (1995) 185 CLR 307 ( Mengel ) at 341-342. A tort of interference with trade or business interests by unlawful means, as distinct from interference with contractual relations, has not yet been recognised by the High Court, although neither has it been rejected. In Mengel at 343 and Sanders v Snell [1998] HCA 64 ; (1998) 196 CLR 329 at [35] - [40] , it was referred to as an embryonic or emerging tort. For the purposes of the present motion, I proceed on the assumption that it forms part of Australian law.


case_text: in OBG Ltd v Allan; Douglas v Hello! Ltd (No 3); Mainstream Properties Ltd v Young [2008] 1 AC 1 ( OBG ) the members of the House of Lords had occasion to consider in detail the elements of the torts of "inducing a breach of contract" and "interference with contractual relations by unlawful means". The former is a secondary liability, the primary liability being that of the contract breaker. The latter is a primary liability alone. Because the matter was not debated before me, I simply refer the parties, especially the applicants, to the discussion of the elements of the tort of direct interference with contractual relations by unlawful means in OBG . In particular, they will need to consider (a) the unlawful means element, and (b) the element of the required state of mind of the respondents in the case of that species of tortious conduct, as distinct from the required state of mind in the case of inducing a breach of contract.


case_text: the two bases of liability to which I have referred have often not been distinguished. Direct physical prevention of contractual performance by unlawful means has been treated as a species of inducing a breach of contract. See, for example, Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers' Union of Australia (1987) 89 FLR 349 at 350-1. In Trindade, Cane and Lunney, The Law of Torts in Australia (4 th ed, OUP, 2007), the authors give as an example of the procurement of a breach of contract, a defendant's physically detaining a contracting party or depriving him of his tools, so that he cannot perform a contract with the plaintiff (at [6.6.2.2] p 307). See, too, John Murphy, Street on Torts (12 th ed, OUP, 2007) at 368-369; and The Laws of Australia (Lawbook Co., subscription service) 33 Torts at [8.1140]. It will be necessary for the pleading to be amended in order to conform, not with the notion of inducing or procuring a breach of contract, but with that of direct inference by unlawful means with the performance of a contract.


case_text: tort of interference with trade or business interests by unlawful means, as distinct from interference with contractual relations, has not yet been recognised by the High Court, although neither has it been rejected. In Mengel at 343 and Sanders v Snell [1998] HCA 64 ; (1998) 196 CLR 329 at [35] - [40] , it was referred to as an embryonic or emerging tort. For the purposes of the present motion, I proceed on the assumption that it forms part of Australian law. I do not understand the basis on which "interference with trade" is pleaded as distinct from a pleading of interference with contractual relations by unlawful means. If the tort is recognised, the unlawfulness concerned will be not just unauthorised conduct but prohibited conduct: see Sanders v Snell , above, at [35]-[36]. Counsel for Mr Whittaker puts the interference with trade case on two bases: an intentional interference with the business of the applicants, or an interference with their business by illegal means . The former seems to be nothing other than the claim of interference with contractual relations. As to the alternative, the illegal means identified is "the threat of an illegal act, namely what we have previously pleaded, or alternatively illegal false imprisonment, or alternatively trespass to goods." The "illegal means" must be pleaded with specificity. "What we have previously pleaded" is not good enough. As well, I do not understand how a threat of false imprisonment or a threat of trespass to goods, without more, could have interfered with the applicants' trade. Unlike paras 8 and 9, para 10 does not state that it is based on "the premises" of paras 6 and 7. It seems to add no cause of action beyond that of interference with the performance of the three contracts. Unless "interference with trade" is intended to be different, and the difference is clearly articulated, it should not be repleaded.


case_text: respondents cite H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd (1979) 30 ALR 181 ; 40 FLR 242 and Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 for the proposition that the material facts must be stated in the text of a pleading, not in "particulars". The distinction between material facts and particulars was recognised by Fisher J in Trade Practices Commission v David Jones (Australia) Pty Ltd, above (at 112 ff). His Honour described the paragraph of the statement of claim in question in that case as "merely a statement of a conclusion drawn from facts which are not in the statement of claim" (at 114). The paragraph pleaded that certain respondents had "made an arrangement or arrived at an understanding". The deficiency in that allegation was not cured by the giving of particulars of the individuals who had represented those respondents at a certain meeting, the date and place of the meeting, the identity of those present, and the effect of the arrangement or understanding. It may be that the distinction between material facts and particulars is not insisted upon as strictly nowadays as it was a few decades ago. An advantage of maintaining the distinction is that it emphasises, for the benefit of both the parties and the Court, that the applicant's position is that it is the facts pleaded in the text of the statement of claim, no more and no less, that the applicant needs to prove in order to establish the asserted cause of action. So long as the distinction is understood and observed, there will not be the confusion that arises when either party, if and when it suits its own purposes, refers to the particulars as if they formed an undifferentiated part of the pleading. The text of paras 6 and 7 is deficient. The expression "deprived him of his liberty" may mean "locked him in a room", "forcibly man-handled him into a room and stood guard at the doorway", "handcuffed him", "encircled him" and so on. The expression "restraining him" is subject to the same kind of criticism.


case_title: Zhu v Treasurer of the State of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530


case_text: Whittaker has previously taken these contentions to the stage of a special leave application before the High Court: see Whittaker v Child Support Registrar [2004] HCATrans 252. Special leave was refused. Previously Mr Whittaker's judicial power argument was rejected by Drummond J in Whittaker v Child Support Registrar [2000] FCA 1733 ; (2000) 106 FCR 105 and Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1429. His taxation power argument was rejected by Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430. On appeal, the Full Court held that Luton v Lessels "foreclos[ed] any constitutional challenge" ( Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] ). As noted above, the High Court refused special leave to appeal. Further, an attempt to limit the scope of the operation of Luton v Lessels failed in Weekes and Child Support Registrar [2006] FLC p93-273 ; [2006] FamCA 598.


case_title: Whittaker v Child Support Registrar [2000] FCA 1733 ; (2000) 106 FCR 105


case_title: Whittaker v Child Support Registrar [2002] FCA 1429


case_text: Whittaker has previously taken these contentions to the stage of a special leave application before the High Court: see Whittaker v Child Support Registrar [2004] HCATrans 252. Special leave was refused. Previously Mr Whittaker's judicial power argument was rejected by Drummond J in Whittaker v Child Support Registrar [2000] FCA 1733 ; (2000) 106 FCR 105 and Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1429. His taxation power argument was rejected by Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430. On appeal, the Full Court held that Luton v Lessels "foreclos[ed] any constitutional challenge" ( Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] ). As noted above, the High Court refused special leave to appeal. Further, an attempt to limit the scope of the operation of Luton v Lessels failed in Weekes and Child Support Registrar [2006] FLC p93-273 ; [2006] FamCA 598. The respondents make the following submission : A further reason to strike out the paragraphs is that they are premised upon reasoning that led to the original paragraph 7 of the Amended Application. The respondents contended that there should be summary dismissal of that part of the proceedings relating to ... this aspect of the case. The respondents' submissions in the summary judgment motion [which did not proceed to judgment] included the following: In any event, and more importantly, the underlying premise of the relief is misconceived and should be the subject of summary dismissal as having no reasonable prospect of success. The relief is premised upon the view that s 8WB(1) of the Taxation Administration Act 1953 (Cth) prevents the Registrar from exercising powers under ss 16C(1) of the Registration Act [a reference to the Collection Act] or s 150D(1) of the Assessment Act to require the Commissioner of Taxation to provide the Registrar with information about people, including their tax file numbers, unless and until the person or persons concerned have first provided statements under ss 16B(4) or (5) and 150C(2) or (3) of those respective Acts. The short answer is that s 8WB(1) of the Taxation Administration Act does not apply in connection with the Registrar exercising powers or performing functions under, or in relation to, the Assessment Act and the Registration Act : see s 8WB(1A)(b) of the Taxation Administration Act and s 202(ga) of the Income Tax Assessment Act 1936 (Cth). This argument or one materially identical was considered and rejected by Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430 at [4] . It has not merit whatsoever and this part of the proceeding should be summarily dismissed under s 31A of the Federal Court of Australia Act . Section 16C(1) of the Collection Act and s 150D(1) of the Assessment Act empower the Registrar to require the Commissioner of Taxation to provide the Registrar with information about people, including tax file numbers, being information that is in the possession of the Commissioner. In each case, information provided by the Commissioner to the Registrar may be used only for the purposes that are specified in s 16C(2) or 150D(2) as the case may be. The general prohibition of s 8WB of the TA Act and the power given by the Assessment Act to the Registrar do not impinge on the specific powers given to the Registrar by s 16C of the Collection Act and s 150D of the Assessment Act.


case_title: Whittaker v Child Support Registrar [2003] FCAFC 114


case_title: Whittaker v Child Support Registrar [2004] HCATrans 252


case_text: In Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Federal Court considered as an 'appropriate litmus test for the general run of cases, in which leave to appeal from an interlocutory decision is sought' (at 399), being the two principles stated in Niemann v Electronic Industries Ltd [1978] VR 431, namely, whether in all the circumstances the interlocutory decision is attended by sufficient doubt to warrant reconsideration by a court on appeal, and whether substantial injustice would result if leave were refused, supposing the decision be wrong. 9 The Full Court in Décor (at 400) also endorsed the proposition that leave will be more readily granted where the decision the subject of appeal determined a ' substantive right ' rather than a ' point of practice '. 10 In the present case, the Federal Magistrate's decision determined points of practice and/or procedure, that is to say, first whether the application purportedly filed on 13 January 2006 was filed in breach of an order of the Federal magistrate Court which required the applicant to first obtain leave of the FMC to appeal, secondly whether that leave should be granted, and thirdly whether the application was incompetent insofar as it related to the decision of the Minister's delegate. The Minister submitted that the court should be reluctant to grant leave in such circumstances. 11 The Minister submitted further that the applicant would need to meet both of the principles enunciated in Décor before the Court would be willing to grant the applicant leave to appeal, and moreover that the applicant did not meet either of those principles for the reasons below. 12 The proposed grounds of appeal in the draft notice of appeal merely state general propositions which do not purport to illuminate the basis upon which the applicant would seek to appeal. 13 Moreover there are complaints made in the applicant's written submissions which indicate other proposed grounds of appeal intend to be relied upon. For instance, the applicant asserts a breach of s 424A of the Migration Act 1958 (Cth) as a result of the Tribunal's alleged failure to put to the applicant pursuant to that section inconsistencies between, inter alia , the applicant's claims in his protection visa application and those made in his oral evidence at the hearing before the RRT.


case_text: In Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Federal Court considered as an 'appropriate litmus test for the general run of cases, in which leave to appeal from an interlocutory decision is sought' (at 399), being the two principles stated in Niemann v Electronic Industries Ltd [1978] VR 431, namely, whether in all the circumstances the interlocutory decision is attended by sufficient doubt to warrant reconsideration by a court on appeal, and whether substantial injustice would result if leave were refused, supposing the decision be wrong.


case_text: The parties agreed that, in proceedings such as this, the Court would ordinarily order that the unsuccessful party or parties pay the costs of successful party or parties on the claim and cross-claim respectively: see, e.g., Global Brand Marketing Inc v YD Pty Ltd (2008) 76 IPR 161. Thus, ordinarily, the applicants would pay Redberry's costs of the application and Redberry would pay the cross-respondents' costs of the cross-claim. In this case, however, the position is complicated by Redberry's offers of settlement. 19 I turn first to Redberry's latest offer of compromise of 21 August 2007, which invoked O 23 of the Rules. The offer complied with the formal requirements of the order, which are set out in O 23 r 3. The offer also provided a time for acceptance in accordance with O 23 r 5(3). 20 Currently, O 23 r 11(6) of the Rules applies "[i]f ... an offer is made by a respondent and not accepted by the applicant; and ... the respondent obtains an order or judgment on the claim to which the offer relates as favourable to the respondent, or more favourable to the respondent, than the terms of the offer". If applicable, this provision creates a presumptive entitlement in the respondent to indemnity costs after 11 am on the day after the offer was made. This provision is, however, a comparatively new one, having commenced operation only on 2 August 2008. The provision cannot apply to Redberry's offer of compromise, which was made in the preceding year, in August 2007: see Federal Court of Australia Act 1976 (Cth), s 59(4) and the Legislative Instruments Act 2003 (Cth), s 12(2)(b).


case_title: Coshott v Learoyd [1999] FCA 276

case_text: As at August 2007, the only provision in connection with costs following an applicant's rejection of a respondent's offer of compromise was O 23 r 11(5), which deals with the position "[i]f ... an offer is made by a respondent and not accepted by the applicant; and ... the applicant obtains judgment on the claim to which the offer relates not more favourable than the terms of the offer". If applicable, this provision also creates a presumptive entitlement in the respondent to indemnity costs. The provision cannot apply to Redberry's offer of compromise, however, because the applicant not only rejected the respondent's offer but was wholly unsuccessful in the claim. In this circumstance, O 23 r 11(5) of the Rules has no application: see Coshott v Learoyd [1999] FCA 276 at [37] per Wilcox J; Dukemaster [2003] FCAFC 1 at [6] per Sundberg and Emmett JJ; and Seven Network Ltd v News Ltd (2007) 244 ALR 374 at [32] per Sackville J.


case_outcome: referred to

case_text: Subsequently, Redberry filed additional costs submission, with leave, to address the fact that, as the Court noted, O 23 r 11(6) did not commence operation until 2 August 2008. In these submissions, Redberry submitted that, if the Court were bound to follow Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 , in order for an award of indemnity costs to be made, the test was whether it was imprudent or unreasonable to reject the offer of 21 August 2007. 17 In relation to the costs of the cross-claim, Redberry submitted that it was to be treated as an "applicant" for the purposes of O 23 of the Rules: see O 5 r 11 and O 23 r 1 (where an "applicant" is defined to include a "cross-claimant" and a "respondent" is defined to include a "cross-respondent"). Accordingly, in reliance on O 23 r 11(4) of the Rules, Redberry submitted that it was entitled to: 1. its party/party costs on the cross-claim up to 21 August 2007; and 2. its costs on the cross-claim from 22 August 2007 onwards on an indemnity basis. 21 As at August 2007, the only provision in connection with costs following an applicant's rejection of a respondent's offer of compromise was O 23 r 11(5), which deals with the position "[i]f ... an offer is made by a respondent and not accepted by the applicant; and ... the applicant obtains judgment on the claim to which the offer relates not more favourable than the terms of the offer". If applicable, this provision also creates a presumptive entitlement in the respondent to indemnity costs. The provision cannot apply to Redberry's offer of compromise, however, because the applicant not only rejected the respondent's offer but was wholly unsuccessful in the claim. In this circumstance, O 23 r 11(5) of the Rules has no application: see Coshott v Learoyd [1999] FCA 276 at [37] per Wilcox J; Dukemaster [2003] FCAFC 1 at [6] per Sundberg and Emmett JJ; and Seven Network Ltd v News Ltd (2007) 244 ALR 374 at [32] per Sackville J. 23 The authorities recognise that the making of an offer outside O 23 by a respondent, which is rejected by an applicant who turns out to be wholly unsuccessful, is a matter to be taken into account in determining the nature of the costs order to be made. In such a case, a respondent claiming indemnity costs must show that the rejection of the offer of compromise was imprudent or unreasonable: see Dukemaster [2003] FCAFC 1 at [7] ; University of Western Australia v Gray (No 21) [2008] FCA 1056 at [36] per French J; and Seven Network 244 ALR 374 at [39] and [51]. Where a cross-claimant makes an offer, which is rejected by a cross-respondent, and the cross-claimant ultimately fails, the position is quite different since there is little, if any, basis for saying that the rejection of the offer of compromise was imprudent and unreasonable. 24 The question is, therefore, whether or not it can be said that the applicants acted imprudently or unreasonably in rejecting Redberry's offer of compromise in relation to the applicants' claim. Plainly enough, even in the present circumstances, the mere refusal of an offer of compromise is not sufficient to satisfy this test: see John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 at 206 per Hill J and Dukemaster [2003] FCAFC 1 at [7] . Although the refusal of the offer is a factor to take into account, it is not determinative on the question of indemnity costs. As Sackville J said in Seven Network 244 ALR 374 at [65], "the court is required to consider whether the rejection of the offer of compromise was unreasonable by considering, among any other relevant circumstances, the strengths and weaknesses of the applicants' case, looking at the claim prospectively at the time the offer was made" (emphasis original). 25 The following factors support the conclusion that the applicants' rejection was not imprudent or unreasonable. 1. The Designs Act introduced a comparatively new statutory framework and, as at August 2007, there were few decisions under the Act concerning the issues arising in this case. The authorities, therefore, provided limited guidance as to the likely outcome. 2. The applicants' claim was tenable. It was not unreasonable. There were what I referred to as "clear similarities between the Review Design and the design embodied in the Redberry garment"; and there was also the direction in s 19(1) of the Designs Act to be considered. Of course, the directions in ss 19(2)(a) , (c) and (d), 19 (3) and (4) had to be borne in mind and standard of the informed user applied. The application of this standard depended, however, on the evidence adduced at trial, including the evidence of Ms Mudie. Her affidavit had not been filed and served let alone read at the time Redberry made its offer. The prior art, which was significant in this case, was also not fully explored until the trial. As at August 2007, the prior art relied on by Redberry was apparently limited to between 9 to 12 items: see the particulars under [7] to the Amended Defence and Cross Claim filed on 17 August 2007. Many more items formed part of the prior art relied on at trial. Further, had the applicants been successful, they might ordinarily have expected damages or an account of profits, at their election. Had they been successful, they might reasonably have expected to recover rather more than the amount Redberry offered. I doubt that the difficulties the applicants faced at trial in connection with their claims for general damages and additional damages would have been apparent to them at the time of the rejection of the offer of compromise. In one sense, these difficulties were the product of a relatively new legislative regime as applied to the fashion industry, most of which became manifest at trial. 3. As I acknowledged in my earlier reasons for judgment, had the applicants' claim for infringement been made out, a question would have arisen as to whether Redberry could successfully invoke s 75(2)(b) of the Designs Act . Consideration of this issue led to consideration of evidence adduced by Redberry, including the evidence of Mr Liu. It may be recalled that, although I ultimately accepted his evidence as essentially truthful, it is correct to say, as the applicants did, that there were some unexplained deficiencies in his account. His evidence was not available to the applicants at the time of the offer and hence it is not open to the applicants to rely on these deficiencies in explaining their rejection of the offer. I accept, however, that, even at time of offer, the applicants might reasonably have perceived that there were aspects of Redberry's case that tended against accepting Redberry's account of things and that it would have been difficult for them then to have predicted how these matters might turn out at the trial. 4. I accept that neither the applicants nor Redberry raised the issue as to the effect of commissioning manufacture outside of Australia. 5. Further, neither the offer of compromise nor the letter accompanying it contained a statement of reasons as to why Redberry believed that the application would fail: see Dukemaster [2003] FCAFC 1 at [8] . As Sundberg and Emmett JJ there said: Whatever the position may be with an offer made under Order 23, a Calderbank offer, or any offer of compromise outside the regime in Order 23, is unlikely to serve its purpose of attracting an indemnity award of costs if the rejecting applicant fails to recover more than what is ordered, unless the offer is a reasonable one and contains a statement of the reasons the offeror maintains that the application will fail. 26 I do not consider that there are countervailing matters that outweigh these considerations. Accordingly, viewed as at 31 August 2007, it was not imprudent and unreasonable for the applicants to reject Redberry's offer of compromise so far as the applicants' claim was concerned. 27 It may follow from this discussion that the rejection of Redberry's earlier settlement offer also provides no basis for an award of indemnity costs. Further, as at 1 June 2007, when this earlier offer was made, the applicants knew comparatively little about Redberry's case. The applicants had Redberry's defence but, as they noted in their letter rejecting the offer, as at 8 June 2007, they did not have the respondent's verified list of documents or copies of documents showing that only 133 of the allegedly infringing garments had been imported. The letter containing the offer did not contain any statement of reasons as to why Redberry believed that the application would fail.


case_text: As at August 2007, the only provision in connection with costs following an applicant's rejection of a respondent's offer of compromise was O 23 r 11(5), which deals with the position "[i]f ... an offer is made by a respondent and not accepted by the applicant; and ... the applicant obtains judgment on the claim to which the offer relates not more favourable than the terms of the offer". If applicable, this provision also creates a presumptive entitlement in the respondent to indemnity costs. The provision cannot apply to Redberry's offer of compromise, however, because the applicant not only rejected the respondent's offer but was wholly unsuccessful in the claim. In this circumstance, O 23 r 11(5) of the Rules has no application: see Coshott v Learoyd [1999] FCA 276 at [37] per Wilcox J; Dukemaster [2003] FCAFC 1 at [6] per Sundberg and Emmett JJ; and Seven Network Ltd v News Ltd (2007) 244 ALR 374 at [32] per Sackville J. 23 The authorities recognise that the making of an offer outside O 23 by a respondent, which is rejected by an applicant who turns out to be wholly unsuccessful, is a matter to be taken into account in determining the nature of the costs order to be made. In such a case, a respondent claiming indemnity costs must show that the rejection of the offer of compromise was imprudent or unreasonable: see Dukemaster [2003] FCAFC 1 at [7] ; University of Western Australia v Gray (No 21) [2008] FCA 1056 at [36] per French J; and Seven Network 244 ALR 374 at [39] and [51]. Where a cross-claimant makes an offer, which is rejected by a cross-respondent, and the cross-claimant ultimately fails, the position is quite different since there is little, if any, basis for saying that the rejection of the offer of compromise was imprudent and unreasonable. 24 The question is, therefore, whether or not it can be said that the applicants acted imprudently or unreasonably in rejecting Redberry's offer of compromise in relation to the applicants' claim. Plainly enough, even in the present circumstances, the mere refusal of an offer of compromise is not sufficient to satisfy this test: see John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 at 206 per Hill J and Dukemaster [2003] FCAFC 1 at [7] . Although the refusal of the offer is a factor to take into account, it is not determinative on the question of indemnity costs. As Sackville J said in Seven Network 244 ALR 374 at [65], "the court is required to consider whether the rejection of the offer of compromise was unreasonable by considering, among any other relevant circumstances, the strengths and weaknesses of the applicants' case, looking at the claim prospectively at the time the offer was made" (emphasis original).


case_text: The question is, therefore, whether or not it can be said that the applicants acted imprudently or unreasonably in rejecting Redberry's offer of compromise in relation to the applicants' claim. Plainly enough, even in the present circumstances, the mere refusal of an offer of compromise is not sufficient to satisfy this test: see John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 at 206 per Hill J and Dukemaster [2003] FCAFC 1 at [7] . Although the refusal of the offer is a factor to take into account, it is not determinative on the question of indemnity costs. As Sackville J said in Seven Network 244 ALR 374 at [65], "the court is required to consider whether the rejection of the offer of compromise was unreasonable by considering, among any other relevant circumstances, the strengths and weaknesses of the applicants' case, looking at the claim prospectively at the time the offer was made" (emphasis original).


case_text: The applicants were unsuccessful on this aspect of their case: see Redberry [2008] FCA 1588 at [85] - [87] . By itself this does not establish misconduct on their part; and nor does it establish that they sought to advance "groundless contentions" in the sense used in the authorities: see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J. The applicants pressed these arguments in good faith. The arguments were not so untenable that it could be said that the applicants acted unreasonably in pressing them. Much of the applicants' conduct in this regard is attributable to the newness of the statutory regime, especially in its application to the fashion industry. In the circumstances, I would not take the view that the applicants' conduct with regard to this aspect of their case was so unreasonable as to justify an award of indemnity costs: see Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at [20] per Gray J, with whom Carr and Goldberg JJ agreed.


case_title: Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659


case_text: The authorities recognise that the making of an offer outside O 23 by a respondent, which is rejected by an applicant who turns out to be wholly unsuccessful, is a matter to be taken into account in determining the nature of the costs order to be made. In such a case, a respondent claiming indemnity costs must show that the rejection of the offer of compromise was imprudent or unreasonable: see Dukemaster [2003] FCAFC 1 at [7] ; University of Western Australia v Gray (No 21) [2008] FCA 1056 at [36] per French J; and Seven Network 244 ALR 374 at [39] and [51]. Where a cross-claimant makes an offer, which is rejected by a cross-respondent, and the cross-claimant ultimately fails, the position is quite different since there is little, if any, basis for saying that the rejection of the offer of compromise was imprudent and unreasonable.


case_title: Cleary v Australian Co-operative Foods (No.2) [1999] NSWSC 991 ; (1999) 32 ACSR 701

case_text: The position of s 52 of the TPA is dealt with expressly by s 51AF(2)(a). It provides that s 52 does not apply to conduct engaged in "in relation to financial services". The scope of s 51AF(2) was considered by Austin J in Cleary v Australian Co-operative Foods (No.2) (1999) 32 ACSR 701 ; [1999] NSWSC 991. At [109] , his Honour said: The words "in relation to" are well recognised as words of expansive meaning (eg Tooheys Ltd v Commissioner of Stamp Duties (1960) 105 CLR 602). The fact that conduct is in relation to other matters does not prevent it from being in relation to financial services as well. Once it is so classified, the Trade Practices Act is inapplicable and the matter falls within legislation for which ASIC has sole responsibility, namely the ASIC Act and the Corporations Law. 107 His Honour was, in my respectful view, correct in the view that where the misleading conduct can fairly be characterised as being both in relation to financial services and otherwise, then the fact that it is so capable of that first characterisation is enough to produce the result that s 52 of the TPA does not apply to the conduct. 108 However, his Honour's observations do not provide guidance for answering the anterior question, namely, when can conduct be taken as being engaged in "in relation to financial services". 109 The extrinsic material to which I was referred suggests that the exemption in s 51AF of the TPA should be broadly construed. Section 51AF was inserted into the TPA by the Financial Sector Reform (Consequential Amendments) Act 1998 (Cth). In the second reading speech to the Bill which became that Act, the Treasurer said that the relevant amendment would "confer on ASIC sole responsibility for consumer protection in relation to financial services". The Treasurer also said that the amendment would remove regulatory overlap and that ASIC would become "the specialist regulator for consumer protection in the financial system". Comments such as these suggest that if there is a possibility of jurisdictional overlap, then the Parliament intended that the matter should more properly fall within the jurisdiction of ASIC and thus within the ambit of the ASIC Act rather than the TPA.


case_text: While it is true that, in general, the words "in relation to" are words of expansive meaning, it is also the case, as the applicants submit, that words of that kind take colour from their particular statutory context. As Deane, Dawson and Toohey JJ said in relation to the similarly much-litigated term "in respect of" in Workers' Compensation Board of Queensland v Technical Products Proprietary Limited [1988] HCA 49 ; (1988) 165 CLR 642 at 653-654: Undoubtedly the words "in respect of" have a wide meaning, although it is going somewhat too far to say ... that "they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer". The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends. (Emphasis added.)


case_text: The point was developed by the High Court in Technical Products Pty Limited v State Government Insurance Office (Queensland) [1989] HCA 24 ; (1989) 167 CLR 45 where the phrase "in respect of" was held to require a "discernible and rational link", and that a "material connection" (rather than a mere coincidental or extraneous connection) should exist between the two facts or concepts whose relation is in question. It is, to my mind, inescapable that, whether there is a "rational" link or a "material" connection involves a degree of judgment about the sufficiency of the link or connection for the relevant statutory purpose. 112 In Technical Products [1989] HCA 24 ; 167 CLR 45 , a man fell off a pallet which was supported by a forklift, and sustained injury. He was on the pallet in order to load bags of cheese salt onto a trailer (a "motor vehicle" as relevantly defined). There was no adequate system to prevent him falling seven feet to the ground. The injured man sued his employer, which sought indemnification under a motor vehicle insurance policy taken out for the trailer. Whether or not the employer was entitled to indemnification turned upon whether the employer fell within s 3(1) of the Motor Vehicle Insurance Act 1936 (Qld). Section 3(1) required the owner of a motor vehicle to effect insurance cover against: all sums for which he ... shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury ... where such injury is caused by, through, or in connection with such motor vehicle. 113 The majority held that the employer's legal liability was not "in respect of" the motor vehicle. Brennan, Deane and Gaudron JJ concluded at 48 that: The effect of the words "in respect of such motor vehicle" ... [is to] add ... the further requirement that the circumstances giving rise to the relevant legal liability by way of damages for that injury show a discernible and rational link between the liability and the particular vehicle. (Emphasis added.) 114 Their Honours explained at 47-48: The words "in respect of" have a very wide meaning. Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear . The nexus between legal liability and motor vehicle which their use introduces in s 3(1) is a broad one which is not susceptible of precise definition. That nexus will not, however, exist unless there be some discernible and rational link between the basis of legal liability and the particular motor vehicle. The point is well made in the judgment of Connolly J (with whom Andrews CJ and Thomas J concurred) in the Full Court of the Supreme Court in the present case: "... it is not sufficient , in order to satisfy the requirement that the person entitled to the benefit of the cover be "legally liable ... in respect of such motor vehicle", that there be no more than a connexion or relation in time or sequence between the motor vehicle and events which in law give rise to the liability. What is required is that there be a relationship between the motor vehicle and the very act or omission which gives rise to that liability ." Thus, the requisite relationship between liability and the particular motor vehicle will ordinarily not exist where the liability is that of a person who is unconnected with that vehicle. The point can be illustrated by example. If, for example, a passenger in a motor vehicle is injured when the driver of the vehicle brakes suddenly to avoid another vehicle whose brakes have failed because of a mechanic's negligence in servicing them, the passenger's injuries can properly be seen as caused "in connection with" each of the two vehicles involved. Any liability of the mechanic in damages for the passenger's injuries would be a liability "in respect of" the second vehicle whose brakes he had negligently serviced. The mechanic's liability could not, however, rationally be seen as a liability "in respect of" the first vehicle with which he had no connexion at all. (Footnotes omitted. Emphasis added.) 115 Their Honours applied their reasoning to the facts as follows (at 49): Even accepting that the trailer and the container are properly to be regarded as one receptacle, the employer's liability cannot, in the circumstances, properly be described as a liability with respect to that receptacle. To the extent that the employer's liability was a liability "in respect of" any vehicle, it was a liability with respect to the unregistered fork-lift. There is nothing in the present case which would justify a conclusion that the trailer and container had any involvement in the employee's accident beyond their passive presence as the receptacle into which the bags were being loaded.


case_outcome: approved

case_text: I note that recently, in Australian Securities & Investment Commission v Citrofresh [2007] FCA 1873 , Goldberg J (at [71]) expressed similar cautions about a too expansive approach to the phrase "in relation to". 122 The above analysis has focused upon the terms of s 51AF(2) of the TPA, which relates to s 52 of the TPA. No special provision is made within s 51AF as to s 53(g) of the TPA. Accordingly, to determine whether a matter should be pursued under s 53(g) of the TPA or its ASIC Act analogue requires recourse only to s 51AF(1) which provides: "This Part does not apply to the supply, or possible supply, of services that are financial services." 123 On one view, it could be said that the more specific provision in s 51AF(2) carves out a wider field of exemption from the TPA than does s 51AF(1) when read in isolation. However, I agree with the applicants that such a construction makes little sense, particularly given that the same conduct can often involve the closest of distinctions as to whether it contravenes s 52 or s 53(g). The requisite purposive construction requires that s 53(g) of the TPA be rendered inapplicable in the same circumstances as s 52 of the TPA.