case_text: It has been suggested that, because the deeming within the meaning of s 51A(2) takes effect unless the corporation adduces some evidence to the contrary, this does not mean that the onus of proof (which otherwise lies with the applicant) is reversed, but merely requires the corporation to go into evidence ( ACCC v Universal Sports Challenge Ltd [2002] FCA 1276 at [46] ). The weight of authority however is that the person making the representation can only avoid the deeming in s 51A(2) by establishing on the usual balance of probabilities that there were reasonable grounds for making the representation: Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 at [82] , Ting [1993] FCA 524 ; 118 ALR 543 at 552, Bowler v Hilda Pty Ltd (1998) 153 ALR 95 at 108 and 117, Sykes 88 FCR 511 at 513-514, Adelaide Petroleum NL & Ors v Poseidon Limited & Ors (1988) 10 ATPR 40-901 at 49,700, Phoenix Court Pty Ltd (1997) ATPR 46-179 (and cf other cases in support of this proposition listed at Miller , 29th ed para 1.51A.37).


case_outcome: cited

case_text: Branson J in Quick v Stoland explained in detail the legislative rationale for this position, and Lindgren J in Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559 summarised in detail the historical background including the Australian Law Reform Commission's Interim Report on Evidence (ALRC No 26, 1985). It is unnecessary to repeat the reasoning of their Honours here. 336 Finally, in relation to packout rates and validation of the data in the DPI publication, this is not a situation where Mr Frick is relying on data in, for example, peer-reviewed journal articles and texts (cf discussion in Alphapharm [2008] FCA 559 at [779] ). 337 In my view expert evidence of Mr Frick as to yields and packout rates is relevant in this case in the sense defined in s 55(1). It is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. It is prima facie admissible. The key question is whether the Court should exercise its discretion under s 135 to exclude the use of Mr Frick's expert report in light of the circumstances I have already outlined, because its probative value is substantially outweighed by the danger that it might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time. 350 Seventh, as I observed earlier in this judgment this is not a situation where the expert has sought to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, and which is hearsay, as a basis for the expert opinion (cf for example Bodney [2008] FCAFC 63 at [92] , Alphapharm [2008] FCA 63 at [762] ). 351 Finally, while I do not fault Mr Frick's motives in seeking to verify that the packout figures provided to him were achievable and to validate the yield information before him, and while I understand his reasons for not wishing to disclose his industry sources, this is not a situation where, for example, he has himself produced a report on the basis of undisclosed data which has been published in a reputable journal and subject to peer review and independent criticism (cf discussion in Alphapharm [2008] FCA 63 at [776] - [779] ). Mr Frick's expertise may have qualified him to know which (unidentified) growers and industry consultants to contact, and to ask for relevant information upon which he could base his opinion, however it is not reasonable that the applicants in the context of these proceedings should be expected to accept such a process without question, where sources were not identified. 352 Overall, I consider that there is such a blurring in Mr Frick's expert report of unidentified facts from unidentified sources, material from admitted sources, and his own specialist knowledge that its probative value is exceeded by the prejudice to the applicants and the risk that it is misleading or confusing. I am unable to extricate from the report his opinion, as distinct from unidentified hearsay evidence upon which his opinion may be based. 353 For the reasons I have given I exclude Mr Frick's expert report from evidence pursuant to s 135 Evidence Act .


case_text: Further, it is not fatal to a claim of reliance that the applicant does not give express and direct evidence of reliance : see analysis of Lindgren J in MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 140 ALR 313 at 358 and observations of the Full Court in Amadio Pty Ltd v Henderson (1998) 81 FCR 149 at 245-246.


case_text: The factual premises upon which the opinion is based, being the material in the Brief to Crop Expert, were identified, disclosed and available to all parties, and the subject of evidence which is itself admissible ( Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 , and see discussion and cases cited in S Odgers Uniform Evidence Law (7th ed) Lawbook Co 2006). While it is preferable that the factual material upon which the expert relies be annexed to the report in compliance with the Federal Court of Australia Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia , in the circumstances of this case I do not consider Mr Frick's expert report inadmissible nor its probative value diminished because of the physical absence of the two volumes of material composing the Brief to Crop Expert from the affidavit or the expert report itself. 297 The applicants submitted further that even if Mr Frick's affidavit were admitted as evidence, the affidavit and Mr Frick's expert report were irrelevant and of no assistance to the Court in determining whether the respondents had a reasonable basis for their predictions as to future performance of the orchards. The grounds of objection raised by the applicants related specifically to Mr Frick's responses to questions during cross-examination and were as follows: • Mr Frick, in compiling his report, did not speak to Mr Burns or any other Sunstate employee (TS 1327 ll 22-27); • in compiling his report Mr Frick obtained information from "industry contacts" (TS 1327 ll 32-45); • in compiling his report Mr Frick did not visit the orchards because of his work commitments (TS 1331 ll 39-46); • in compiling his report Mr Frick took no steps to assess the accuracy of that information and simply assumed it was accurate (TS 1333 ll 5-18); • in compiling his report Mr Frick used "experienced grower information and information from other consultants" (TS 1335 ll 36-37); • Mr Frick refused to disclose the names of the persons from whom he had obtained information used in the preparation of his report (TS 1336 ll 18-47); • Mr Frick refused to identify the location of the properties from which he obtained data for the purposes of his report (TS 1339 ll 10-42); • Mr Frick failed to recognise the climatic, geographical and soil differences between the inland Central Burnett Region (upon which he based his assessment of reasonable estimates for the two orchards) and the coastal areas where the two orchards were located (TS 1339-1340). 298 Before turning to consider these objections it is helpful to first identify the factual premises of Mr Frick's expert report. Factual premises of expert report 328 The general rule that hearsay evidence is not admissible, as recognised by s 59 Evidence Act , is relaxed in relation to expert opinions. Traditionally if expert witnesses relied on the existence or non-existence of some fact which was basic to the question on which they were asked their opinion, that fact needed to be proved by admissible evidence (JD Heydon Cross on Evidence (subscription service vol 1) Butterworths para 33825). However this so-called "basis" rule was extended at common law to allow knowledge of the expert derived from general experience to legitimately contribute to the opinion arrived at in the expert report. This knowledge derived from general experience could at common law be contrasted with specific information sought by an expert from third parties for comparative purposes as a basis for his or her opinion such information would likely be hearsay unless it were disclosed and admitted, and the resultant opinion therefore inadmissible ( English Exporters (London) Ltd v Eldonwall Ltd (1973) 1 Ch 415 at 421, Arnotts Ltd 24 FCR 313 at 350-351 and ASIC v Rich [2005] NSWCA 152 ; 218 ALR 764 at 800). 348 In my view, although these comments represent a common law position as to admissibility of expert opinion evidence as distinct from the position under the Evidence Act , they are relevant to the consideration by the Court under the Evidence Act as to the probative value of the evidence before it (cf Arnotts Ltd 24 FCR 313 at 350).


case_title: Australian Competition and Consumer Commission v Telstra Corporation Ltd [2007] 244 ALR 470

case_text: There is no doubt that historical performance can be a factor relevant to the reasonableness of a forecast of future performance (see, for example, ACCC v Top Snack Foods Pty Ltd [1999] FCA 752 , ACCC v Telstra Corporation Ltd [2007] 244 ALR 470). However in determining whether a person had reasonable grounds for expressing an opinion or making a prediction as to a future matter, is necessary to judge the matter as at the date of the representation (see Lyndel Nominees Pty Ltd v Mobil Oil Australia Ltd (1997) 37 IPR 599 at 625, Sykes 88 FCR 511 at 513, City of Botany Council [2001] NSWCA 94 at [83] ). Historical performance is one factor, although it is an important factor. In paras 19(e) and (f) the applicants claim that the respondents had in their possession Packing Shed data computer records which disclosed the matters referred to in paras 19(a), (b) and (c). I have already considered the claims in paras 19(a), (b) and (c) and found that the respondents had reason to distrust the information in the Packing Shed records to which the applicants refer. Further, I do not consider that the applicants have substantiated the "true position" with respect to, inter alia , the Packing Shed records as claimed by the applicants in paras 19(d)-(g). I shall return to this issue later in my judgment.


case_title: Australian Competition and Consumer Commission v Top Snack Foods Pty Ltd [1999] FCA 752


case_title: Australian Competition and Consumer Commission v Universal Sports Challenge Ltd [2002] FCA 1276


case_outcome: considered

case_title: Australian Security and Investments Commission v Rich [2005] NSWCA 152 ; (2005) 218 ALR 764

case_text: To the extent that Mr Frick relied on the material in the Brief to Crop Expert in giving his evidence, his evidence is relevant and unobjectionable. During cross-examination much was made of the fact that Mr Frick relied upon records provided to him without ascertaining by inspection, reference to Mr Burns, or otherwise their accuracy, or whether they were a sufficient basis upon which he might give the opinions contained in his report. However: • I am satisfied by Mr Frick's evidence that in producing his report, he preferred to conduct his own investigations and utilise his own information and experience (TS 1332 ll 2-11) rather than consult with Mr Burns. I am satisfied that Mr Frick's reasons for refraining from consulting Mr Burns in relation to the material in the Brief to Crop Expert were reasonable, namely that Mr Frick did not wish to be influenced by Mr Burns, whose position had been to maximise yield, or have his thought processes influenced by anyone involved in this case (TS 1330 ll 6-7, 1332 ll 19-21). I note that in any event the material with which Mr Frick was briefed included the farm managers' reports, and that he had reference to those reports prepared by Mr Burns (TS 1330 ll 20-21) as well as his own knowledge of the orchards from his work for previous owners of the relevant properties (TS 1335 l 20). • I am not persuaded that Mr Frick's approach in basing his expert report on material provided by the respondents (which, as I have noted, is in evidence) impacted adversely on the probative value of his report or otherwise renders his opinion irrelevant. Indeed as was pointed out by Sperling J in Elliot v Ivey [1998] NSWSC 116: The capacity of a professional person to give an opinion based on an exclusionary set of assumptions is implicit in this process. The implication is reasonable because professional men and women are accustomed to forming opinions on assumed facts in the course of their ordinary professional work. It is part of their stock in trade, developed by training and by experience in the practice of their profession. Thus it is that an expert witness has a much more limited role than that of a solicitor acting for a client. In particular, expert witnesses are not bound to use all information they might previously have obtained. On the contrary, expert witnesses are bound to confine their attention to specified factual assumptions which are made known to the court. The opinion is then only as good as the assumptions are established by evidence to be correct. (cf comments of Spiegelman CJ in ASIC v Rich [2005] NSWCA 152 ; (2005) 218 ALR 764 at [171] and discussion in I Freckelton & H Selby Expert Evidence (3rd ed) Lawbook Co 2005 p 629) 328 The general rule that hearsay evidence is not admissible, as recognised by s 59 Evidence Act , is relaxed in relation to expert opinions. Traditionally if expert witnesses relied on the existence or non-existence of some fact which was basic to the question on which they were asked their opinion, that fact needed to be proved by admissible evidence (JD Heydon Cross on Evidence (subscription service vol 1) Butterworths para 33825). However this so-called "basis" rule was extended at common law to allow knowledge of the expert derived from general experience to legitimately contribute to the opinion arrived at in the expert report. This knowledge derived from general experience could at common law be contrasted with specific information sought by an expert from third parties for comparative purposes as a basis for his or her opinion such information would likely be hearsay unless it were disclosed and admitted, and the resultant opinion therefore inadmissible ( English Exporters (London) Ltd v Eldonwall Ltd (1973) 1 Ch 415 at 421, Arnotts Ltd 24 FCR 313 at 350-351 and ASIC v Rich [2005] NSWCA 152 ; 218 ALR 764 at 800). 346 Fifth, the respondents in their written submissions relied upon comments of Spiegelman CJ in the New South Wales Court of Appeal in ASIC v Rich at [171], which are as follows: An expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated... There will be occasions in which matters of this character are proper to be explored for the purposes of determining the weight to be given to the opinion. The mere fact that there must have been use of some extraneous material, even of the extensive character identified by his Honour, does not of itself necessarily lead to a conclusion that the evidence is of low probative value. In many cases the opinion will plainly be capable of being supported by the underlying facts proven or assumed. If so, the fact that a broader range of information may originally have been availed of would not necessarily detract to any significant degree from the probative value of the evidence given. Any such conclusion must depend on the particular circumstances of the matter under consideration.


case_text: Such change in circumstances at the properties as lack of maintenance over the space of a year potentially means that an inspection of the properties in June 2006, when Mr Frick prepared his report, would have been of limited assistance to him in preparing his report (cf observations of Beach J in Australian Retail Enterprises Pty Ltd v ND Cowan Nominees Pty Ltd [2000] VSC 538 at [27] - [28] ). I consider that the failure of Mr Frick to visit the properties at the time of the preparation of his report does not make his evidence inadmissible, but if anything goes only to weight. Objection: Primary reference material DPI publication 313 Mr Frick's evidence was that his primary source of data with respect to yields and yield forecasts was the DPI publication "The Economics of Growing Citrus in The Central Burnett Region of Queensland" by J R Peter Hardman, published in 1994 ("the DPI publication"). The applicants did not in their submissions fault the authority of this publication as a primary source, however they claim that: a. Mr Frick failed in his report to identify the differences or the potential differences between the Central Burnett and the South Burnett regions; and b. Notwithstanding Mr Frick's reliance on the DPI publication, the reliability of his expert opinion was fatally damaged by his failure to identify persons whom he consulted to validate the application of the data in the DPI publication to the South Burnett region. 314 I shall deal with the second issue separately below.


case_text: A problem with this approach is that it is not clear from paras 17A(g)-(k) why the failure to disclose the emails to which those paragraphs referred constituted conduct allegedly in breach of s 52, other than a blanket pleading in para 19A that the first and second applicants had a reasonable expectation that the emails would be disclosed in the circumstances referred to in para 17. This is a fundamental issue. As Mason CJ and Gaudron J observed in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286: The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liq) per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness.


case_title: Bodney v Bennell [2008] FCAFC 63

case_text: It is clear from cases decided under the Evidence Act that the "basis" rule does not feature in s 79. Strictly speaking, it is not necessary for an expert opinion to be admissible for the factual basis of the opinion to be itself proven by admissible evidence ( Neowarra v Western Australia [2003] FCA 1399 ; (2003) 134 FCR 208 at [22] and [37], Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-374, Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [10] , Bodney v Bennell [2008] FCAFC 63 at [90] ). Instead, provided the expert evidence: • is opinion evidence which satisfies s 79 ; and • is relevant within the meaning of s 55(1). as a general rule it is admissible under s 56(1) , and the general discretion of the Court to refuse to admit evidence under s 135 is sufficient to deal with problems that might arise in respect of the opinion the basis of which is not disclosed ( Quick 87 FCR 371 per Branson J at 617, Emmett J agreeing; Bodney [2008] FCAFC 63 at [91] ). 350 Seventh, as I observed earlier in this judgment this is not a situation where the expert has sought to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, and which is hearsay, as a basis for the expert opinion (cf for example Bodney [2008] FCAFC 63 at [92] , Alphapharm [2008] FCA 63 at [762] ).


case_text: It has been suggested that, because the deeming within the meaning of s 51A(2) takes effect unless the corporation adduces some evidence to the contrary, this does not mean that the onus of proof (which otherwise lies with the applicant) is reversed, but merely requires the corporation to go into evidence ( ACCC v Universal Sports Challenge Ltd [2002] FCA 1276 at [46] ). The weight of authority however is that the person making the representation can only avoid the deeming in s 51A(2) by establishing on the usual balance of probabilities that there were reasonable grounds for making the representation: Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 at [82] , Ting [1993] FCA 524 ; 118 ALR 543 at 552, Bowler v Hilda Pty Ltd (1998) 153 ALR 95 at 108 and 117, Sykes 88 FCR 511 at 513-514, Adelaide Petroleum NL & Ors v Poseidon Limited & Ors (1988) 10 ATPR 40-901 at 49,700, Phoenix Court Pty Ltd (1997) ATPR 46-179 (and cf other cases in support of this proposition listed at Miller , 29th ed para 1.51A.37). 476 In any event to the extent that the first respondent was required to qualify its representations to the applicants in order that representations as to future conduct could be said to be made on reasonable grounds. I consider that the respondents appropriately and effectively did so. This is not an issue which was raised by the applicants, and indeed as Allsop J observed in Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [627] it does not follow that any statement in any commercial context which can be characterised as a promise must be accompanied by any existing legal or factual qualification. I address the issue in the interests of completeness in light of comments in such cases as Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189 at 201-2, Bowler 153 ALR 95 at 108, Famel Pty Ltd v Burswood Management Ltd (1989) ATPR 40-962 and Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [627] .


case_text: Leaving aside for one moment the issue whether the first respondent, through Mr Breed, actually made the oral and written representations claimed by the applicants in para 16 Further Amended Statement of Claim, I consider that Mr Breed would have had at least ostensible authority from the first respondent to make such representations on its behalf within the meaning of s 84(2)(a) of the Act and such cases as Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 and Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd (1990) 3 ACSR 649. 516 It is clear that Mr Strahley, as managing director of the parent company of the first respondent, and also as an executive director of the first respondent itself, had actual authority on behalf of the first respondent to make representations binding the first respondent in the transaction with Mr Tracy. Mr Strahley was also clearly the primary contact of Mr Tracy in the purchase transaction, particularly with respect to budgetary and financial information. Further, the evidence is that, after contracts had been exchanged, Mr Strahley had given Mr Palfreeman the responsibility of communicating with Mr Tracy until settlement, which included communicating with the Packing Shed any request for information from Mr Tracy, and to that extent Mr Palfreeman would have had actual authority to provide Mr Tracy with information (TS 1114 ll 17-19, 1231 ll 30-31). These issues are not in dispute. 517 In relation to Mr Breed, the respondents admitted in para 3(2) of the Defence that Mr Breed acted as agent of the first respondent within the scope of his employment. Mr Breed was the farm manager of the first respondent. That does not necessarily mean that Mr Breed had authority to make representations binding the first respondent in relation to budgetary and financial issues. The key question is whether Mr Breed's authority extended to making such binding representations, or whether the conduct of the first respondent had clothed Mr Breed with such authority by way of apparent or ostensible authority.


case_text: So, as a general principle, when a party pleads breach of s 52 it necessarily follows that the factual basis upon which the section is invoked must be stated with appropriate clarity in the statement of claim (Fox J in Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348). This is not the case here. The relevance of the failure to disclose the emails listed in paras 17A(g)-(k) to the applicants is not articulated in the Further Amended Statement of Claim, so as to present a case that the respondents can meet. This creates a problem which the applicants' submissions do not overcome. 267 A second fundamental flaw in the claim of the applicants in relation to the emails in each of paras 17A(g)-(k) is that, in the absence of articulation of the factual basis upon which the applicants allege that failure to disclose the relevant email was misleading or deceptive, the applicants do not substantiate their claim that the emails as distinct from any information in them be disclosed. The emails identified in paras 17A(g)-(k) were clearly internal emails sent as part of the management of the orchards, in the normal course of business. While it is undesirable for the Court to take an unnecessarily restrictive view of pleadings where the substance of an applicant's case is clear from the statement of claim, in this case the alleged substance of the applicants' case in paras 17A(g)-(k) is not clear from the manner in which it has been pleaded. In my view it would be unjust to the respondents to require them to meet a case which the applicants develop in their written closing submissions at the end of a long trial when the proper approach was clearly for the case to be unambiguously pleaded at the outset. 268 An illustration of the difficulties arising from the failure of the applicants to clarify the basis of their claim in each of these paragraphs through proper pleading can be seen by reference to the applicants' claim in para 17A(g) and the email of 7 December 2004. The substance of this email reads as follows: David Confirming what I need done at Sunstate. • Debbie to only work on an as required basis in the Tiaro orchard. • Steve, to service the Packing Shed line, only non cost repairs and servicing to be carried out. • Steve to work on Tiaro and Bundaberg on repairs when not in the shed. • You are to do any admin, casual wages and invoicing, then down to Tiaro for work there. • I need all R&M external cost to be stopped with only internal repairs carried out by Steve and staff. • I agree to $61,000 worth of thinning in total for both farms. • All chemicals stocks to be run down, with all herbicide and tree chemicals to be used for stores to maintain spray programs. Chemicals can be rotated on consultant's advice. Transfer chemicals between farms if required. • All slashing, weed and tree spraying is to be well maintained. • The contract slashing is to cease, salary and casual staff to take over this role. • You will need to get authority for any expenditure from HO. staff such as Matt, Trevor and Steve are to be informed of the process. Regards Andrew Strahley ... 269 The applicants claim in their written submissions that the "Evidence contained in Exhibit" relevant to the matter contained in the email (and para 17A(g)) was "Only internal repairs carried out... Contract slashing is to cease" and the respondents' reply to this was "NIL". 270 However: • Even assuming that the failure to disclose this email could, without substantiation, be conduct misleading or deceptive within the meaning of s 52, the email itself contains a broad spectrum of instructions relevant to the ordinary course of management of the orchards including specific instructions regarding minor employees. To take random examples are the applicants suggesting that failure of the respondents to disclose an email with the instruction "Debbie to only work on an as required basis in the Tiaro orchard" or "Steve to work on Tiaro and Bundaberg on repairs when not in the shed" was conduct in breach of s 52? • It is clear that, in making this submission after conclusion of the trial, the applicants sought to articulate the factual basis for the claim in para 17A(g) that failure to disclose that email constituted a breach of s 52. However this submission is in the nature of particulars. If this material were to form part of the applicants' claim, it should have been included in the Further Amended Statement of Claim. • In any event, the submission was "Only internal repairs carried out... Contract slashing is to cease" in relation to this email. This does not explain why the claim under para 17A(g) is in any way relevant to an alleged breach of s 52.


case_text: Section 52 of the Act provides that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Proceedings before this Court involving s 52 claims are not infrequent and feature widely varying factual scenarios. A number of principles should be kept in mind in considering claims in the context of s 52. These include the following: 1. Section 52 of the Act requires that the relevant corporation engage in conduct that is misleading or deceptive. Section 4(2)(a) of the Act provides that: a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant. "Conduct" is not co-extensive with "representation" in s 52 (Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 504, Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 per Gleeson CJ, Hayne and Heydon JJ at 603, McHugh J at 622) however engaging in conduct does encompass making representations (cf McGrath; in the matter of Pan Pharmaceuticals Ltd (in liq) v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2 at [150] ). 2. Where a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive, it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court the nature of the alleged conduct and the circumstances which rendered the conduct misleading: McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 (cf for example, Lahoud v Lahoud [2006] NSWCA 169 at [91] , Yang v American International Assurance Co (Australia) Ltd [2008] FCA 39 at [89] ). 3. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances: Watson 49 NSWLR 315 at 318 (cf for example Christofidellis v Zdrilic [1999] FCA 39 , Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 6) (2007) 63 ACLR 1 at 107, Yang FCA 39 at [89]). 4. The essential characteristic of misleading or deceptive conduct is that it contains or conveys a meaning which is false ( Global Sportsman Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88). 5. There will be no contravention unless error or misconception results from the conduct of the corporation, and not from other circumstances for which the corporation is not responsible ( Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 ; (1990) ATPR 40-994 at 50,950; Miller's Annotated Trade Practices Act (29th ed) 1.51.5). 6. Whether or not conduct is misleading or deceptive is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances ( Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202). 7. The words likely to mislead or deceive add little to s 52; at most they make it clear that it is unnecessary to prove that the conduct in question actually deceived or misled anyone (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198). Conduct will be likely to mislead or deceive if there is a real or not remote chance or possibility of misleading or deceiving, regardless of whether it is more than 50% ( Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at [6] , [15], Equity Access Pty Ltd ATPR 40-994 at 50,950, Global Sportsman Pty Ltd [1984] FCA 180 ; 2 FCR 82 , McHugh J in Butcher [2004] HCA 60 ; 218 CLR 592 at 626). 8. Silence, or failure to disclose information, can fall within the gamut of misleading or deceptive conduct in the sense that having regard to all the relevant circumstances, it constitutes conduct that has been misleading or deceptive or that is likely to mislead or deceive ( Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31 at 32, 41; Fleetman Pty Ltd v Cairns Pty Ltd [2005] FCAFC 80 at [1] - [2] ). 9. The conduct of a corporation must be viewed as a whole. It would be wrong to select some words or act which, alone, would be likely to mislead if those words or acts, when viewed in their context, were not capable of misleading (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 199). 10. As a general rule intention (or lack of intention) to mislead or deceive is not a necessary element of conduct proscribed by s 52 ( Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228). The liability imposed by s 52 is unrelated to fault (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 197). 11. The court must decide objectively whether the conduct is misleading or deceptive or likely to mislead or deceive, and that evidence that members of the public have actually been misled is not conclusive, although it can be very persuasive (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 198-199, McWilliam's Wines Pty Ltd v McDonald's System of Australia [1980] FCA 159 ; (1980) 33 ALR 394 per Smithers J at 399 and Fisher J at 414, Equity Access Pty Ltd ATPR 40-994 at 50,950). 152 Finally, and in any event, as is clear from the cases in this area, the conduct of the first respondent and of Mr Strahley must be considered as a whole (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 199, Butcher [2004] HCA 60 ; 218 CLR 592 at 605, 622). Even if, contrary to my findings, the data in para 7.3 of the 1 June 2004 Valuation Report were misleading or deceptive, subsequent to the provision of that report the respondent claims that Mr Tracy was provided with the following documents, namely: • Yield Summary which recorded historical yields for the crop years 1998 to 2004 (a document entitled "Yield Summary.xls" (exhibit A17); and • Block Summary data which recorded historical information, including yields and packout rates, for the crop years 2002-2004 and with a forecast component for 2005-2007 (exhibit R30).


case_text: While Mr Perry's submission that the expert opinion of Mr Frick did not comply with the relevant Practice Direction was technically correct, in the circumstances before me I make the following observations: a. It is clear from Mr Frick's affidavit, p 1 of his expert report (MBF-02) and the annexure MBF-03 (the Index to Documents (Crop Expert) indexing the material in the Brief to Crop Expert) that, in preparing his expert report, Mr Frick reviewed data in the Brief to Crop Expert volumes. b. Mr Frick's affidavit with the annexures including the expert report had been available to the applicants since 2006. c. Mr Bell QC informed the Court that the data in the Brief to Crop Expert was already in evidence before the Court at the time Mr Frick was sworn as a witness. I accept this information, and in any event note from reviewing the Brief to Crop Expert that the following material, of which copies were included in the Brief to Crop Expert, was already in evidence by the time that Mr Frick was called as a witness: exhibits A32, A5, R30, A16, A12, A13, A17, A19, A21, A37, A39, A43, A45, A52, A30, A58, A64 and A66. d. Although the two volumes of material composing the Brief to Crop Expert were not physically annexed to Mr Frick's expert report as provided by cl 2.7, it is well established that compliance with a practice note is not a criterion of admissibility of evidence: Centurion Roller Shutters Pty Ltd v Automatic Technology (Australia) Pty Ltd [1999] FCA 1118 at [4] , Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 at [13] .


case_text: In my view Mr Breed's unsigned statement is of no weight in relation to any matter in dispute in these proceedings. Mr Breed is a respondent to proceedings, for whom the solicitor for the applicants had prepared a statement (which Mr Breed refused to sign) purportedly reflecting his views. To adopt the language of Batt J in CE Heath Underwriting and Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (unreported, Supreme Court of Victoria, 3 August 1995) In my view it is little better than a document on plain paper containing only the numbered paragraphs... 119 Further however, the applicants submitted that adverse inferences should be drawn against the respondents because the respondents tendered Mr Breed's affidavit but failed to call him as a witness.


case_title: Centurion Roller Shutters Pty Ltd v Automatic Technology (Australia) Pty Ltd [1999] FCA 1118


case_title: Christofidellis v Zdrilic [1999] FCA 39

case_text: Section 52 of the Act provides that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Proceedings before this Court involving s 52 claims are not infrequent and feature widely varying factual scenarios. A number of principles should be kept in mind in considering claims in the context of s 52. These include the following: 1. Section 52 of the Act requires that the relevant corporation engage in conduct that is misleading or deceptive. Section 4(2)(a) of the Act provides that: a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant. "Conduct" is not co-extensive with "representation" in s 52 (Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 504, Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 per Gleeson CJ, Hayne and Heydon JJ at 603, McHugh J at 622) however engaging in conduct does encompass making representations (cf McGrath; in the matter of Pan Pharmaceuticals Ltd (in liq) v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2 at [150] ). 2. Where a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive, it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court the nature of the alleged conduct and the circumstances which rendered the conduct misleading: McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 (cf for example, Lahoud v Lahoud [2006] NSWCA 169 at [91] , Yang v American International Assurance Co (Australia) Ltd [2008] FCA 39 at [89] ). 3. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances: Watson 49 NSWLR 315 at 318 (cf for example Christofidellis v Zdrilic [1999] FCA 39 , Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 6) (2007) 63 ACLR 1 at 107, Yang FCA 39 at [89]). 4. The essential characteristic of misleading or deceptive conduct is that it contains or conveys a meaning which is false ( Global Sportsman Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88). 5. There will be no contravention unless error or misconception results from the conduct of the corporation, and not from other circumstances for which the corporation is not responsible ( Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 ; (1990) ATPR 40-994 at 50,950; Miller's Annotated Trade Practices Act (29th ed) 1.51.5). 6. Whether or not conduct is misleading or deceptive is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances ( Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202). 7. The words likely to mislead or deceive add little to s 52; at most they make it clear that it is unnecessary to prove that the conduct in question actually deceived or misled anyone (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198). Conduct will be likely to mislead or deceive if there is a real or not remote chance or possibility of misleading or deceiving, regardless of whether it is more than 50% ( Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at [6] , [15], Equity Access Pty Ltd ATPR 40-994 at 50,950, Global Sportsman Pty Ltd [1984] FCA 180 ; 2 FCR 82 , McHugh J in Butcher [2004] HCA 60 ; 218 CLR 592 at 626). 8. Silence, or failure to disclose information, can fall within the gamut of misleading or deceptive conduct in the sense that having regard to all the relevant circumstances, it constitutes conduct that has been misleading or deceptive or that is likely to mislead or deceive ( Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31 at 32, 41; Fleetman Pty Ltd v Cairns Pty Ltd [2005] FCAFC 80 at [1] - [2] ). 9. The conduct of a corporation must be viewed as a whole. It would be wrong to select some words or act which, alone, would be likely to mislead if those words or acts, when viewed in their context, were not capable of misleading (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 199). 10. As a general rule intention (or lack of intention) to mislead or deceive is not a necessary element of conduct proscribed by s 52 ( Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228). The liability imposed by s 52 is unrelated to fault (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 197). 11. The court must decide objectively whether the conduct is misleading or deceptive or likely to mislead or deceive, and that evidence that members of the public have actually been misled is not conclusive, although it can be very persuasive (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 198-199, McWilliam's Wines Pty Ltd v McDonald's System of Australia [1980] FCA 159 ; (1980) 33 ALR 394 per Smithers J at 399 and Fisher J at 414, Equity Access Pty Ltd ATPR 40-994 at 50,950).


case_text: Considering later events which did occur is of some relevance although clearly not conclusive as to whether the respondents had reasonable grounds to make the future representations. Nonetheless while examining evidence of later events may throw light upon the overall probabilities it remains vital to guard against hindsight illusion (cf Mason P in City of Botany Council v Jazabas Pty Limited [2001] NSWCA 94 at [83] ). There is no necessary connection between the reasonable grounds and the subsequent circumstances which resulted in the predicted state of affairs not occurring ( Sykes 88 FCR 511 at 513 per Heerey J). 415 There is no doubt that historical performance can be a factor relevant to the reasonableness of a forecast of future performance (see, for example, ACCC v Top Snack Foods Pty Ltd [1999] FCA 752 , ACCC v Telstra Corporation Ltd [2007] 244 ALR 470). However in determining whether a person had reasonable grounds for expressing an opinion or making a prediction as to a future matter, is necessary to judge the matter as at the date of the representation (see Lyndel Nominees Pty Ltd v Mobil Oil Australia Ltd (1997) 37 IPR 599 at 625, Sykes 88 FCR 511 at 513, City of Botany Council [2001] NSWCA 94 at [83] ). Historical performance is one factor, although it is an important factor. In paras 19(e) and (f) the applicants claim that the respondents had in their possession Packing Shed data computer records which disclosed the matters referred to in paras 19(a), (b) and (c). I have already considered the claims in paras 19(a), (b) and (c) and found that the respondents had reason to distrust the information in the Packing Shed records to which the applicants refer. Further, I do not consider that the applicants have substantiated the "true position" with respect to, inter alia , the Packing Shed records as claimed by the applicants in paras 19(d)-(g). I shall return to this issue later in my judgment. 461 As I noted earlier in this judgment, the packout rate realised by the first respondent for lemons in the 2005 Crop Year (81.2%) exceeded the forecast packout rate. I note this fact as contributing to the overall probability that the first respondent made its representation as to the performance of the orchards in 2005 on reasonable grounds (cf Sykes 88 FCR 511 , City of Botany Bay Council [2001] NSWCA 94).


case_text: It is clear that the contravening conduct need not be the sole inducement in sustaining the loss ( Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 ; National Australia Bank Ltd v Cunningham [1990] FCA 310 at [6] , Ricochet Pty Ltd v Equity Trustees Executors and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229 at 233, Elitegold Pty Limited v CM Holdings Pty Ltd , Australia Fair Shopping Centres Pty Limited and CM Developments (Qld) Pty Ltd [1995] FCA 1336 at [49] ) although it is necessary that the contravening conduct had a substantial rather than a negligible effect ( Como Investments Pty Ltd (in liq) v Yenald Nominees Pty Ltd (1997) 19 ATPR 41 550 at 43,619; McHugh J in Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 494).


case_text: The fact that the basis of the Most Likely Scenario was the data summary which Mr Tracy already had prior to the meeting with Mr Breed does not automatically establish that he had already created the Most Likely Scenario prior to 5 January 2005. However in my view, the evidence supports the respondents' submissions that Mr Tracy both initiated the creation of the Most Likely Scenario, and was the "author" of that document. I form this view for the following reasons: • Prior to the meeting of 5 January 2005 Mr Tracy had clearly isolated from the 2005 Sunstate Budget.xls (a document of 141 pages in length) material of 22 pages which became the "data summary.xls". He clearly considered this data of such importance that he had forwarded it to Mr Bailey on 4 January 2005 as reference material for Mr Bailey's valuation. Accordingly, by 4 January 2005 (prior to his meeting with Mr Breed) Mr Tracy was clearly focusing on that data, and in a position to manipulate the material in the data summary.xls to create the various scenarios including the Most Likely Scenario. • However in any event Mr Tracy's own evidence demonstrates that he created the Most Likely Scenario rather than Mr Breed. Mr Tracy had brought his laptop to the meeting, and he deposed that he asked Mr Breed to consider a number of scenarios which Mr Tracy had already created , including one titled the Most Likely Scenario. Mr Tracy asked Mr Breed to assist him because the spreadsheets were complex and Mr Tracy was not familiar with them. The concept of the Most Likely Scenario was conceived by Mr Tracy, its data set was provided by Mr Tracy, and his own evidence demonstrates that he drew Mr Breed in to assist him in the technical task of completing the various scenarios to his (Mr Tracy's) satisfaction. The author of the Most Likely Scenario was Mr Tracy, not Mr Breed (cf observations of Morling J in Crocker v Papunya Tula Artists Pty Ltd (1985) 61 ALR 529 at 531, and discussion in S Ricketson The Law of Intellectual Property: Copyright, Designs & Confidential Information (2nd ed, looseleaf) Lawbook Co 2002, para 7.45). • Although little weight can be attributed to Mr Breed's evidence, his evidence is that Mr Tracy created the Most Likely Scenario and Mr Breed assisted Mr Tracy. 528 Further, I am not persuaded that Mr Breed had represented to Mr Tracy that the Most Likely Scenario was "the most accurate prediction" of the yield that would be obtained from the land in the 2005 Crop Year. I have already noted in this judgment the caution with which courts approach serious difficulties of proof of oral or partly oral conduct in the absence of some reliable contemporaneous record or other satisfactory corroboration ( Watson (1995) NSWLR 315 at 319). The only evidence of Mr Breed's oral representation was the evidence of Mr Tracy, who had visited Mr Breed with apparently pre-conceived ideas as to, inter alia , the "most likely" scenario for 2005, and who had recruited Mr Breed's assistance in entering the data to produce these scenarios. While I do not doubt Mr Tracy's honesty, in my view it is likely that Mr Tracy satisfied himself of the various scenarios and considered those scenarios vindicated by the assistance Mr Breed provided him in producing them. 529 Finally, I consider that the claims of the applicants in paras 19(n)-(s) as to the "true position" are not substantiated. I will deal specifically with the claims in para 19 in more detail later in the judgment 530 In my view the claims in para 16 Further Amended Statement of Claim are not substantiated. 531 In para 17 of the Further Amended Statement of Claim the applicants claimed as follows: On 6 January 2005 the First Respondent represented to the First and Second Applicants that: a) the land would yield 13,415 bins of fruit picked for the period 1 January 2005 until 30 September 2005; b) the land would yield 249,441 cartons of packed fruit for the period 1 January 2005 until 30 September 2005; c) the proceeds of sale of the fruit crops that would be grown on the land for the period 1 January 2005 until 30 September 2005 would be $5,443,770.00; d) the average price per carton for fruit yielded by the land for the period 1 January 2005 until 30 September 2005 would be as follows: Murcotts $22.87; Lemons $30.12; Imperials $18.08; Novas $20.14 and Ellenors $17.94; e) the fruit yielded by the land for the period 1 January 2005 until 30 September 2005 would yield the following packout rates: Murcotts 65%; Lemons 80.5%; Imperials 70%; Novas 75% and Ellenors 67%. PARTICULARS The representations were written and are contained in a document entitled "Production Pricing Schedule Jan 05.xls" which was an attachment to an e-mail from the Third Respondent to the Second Applicant sent on 6 January 2005.


case_title: Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31


case_title: Elitegold Pty Limited v CM Holdings Pty Ltd, Australia Fair Shopping Centres Pty Limited and CM Developments (Qld) Pty Ltd [1995] FCA 1336


case_title: Elliot v Ivey [1998] NSWSC 116

case_text: To the extent that Mr Frick relied on the material in the Brief to Crop Expert in giving his evidence, his evidence is relevant and unobjectionable. During cross-examination much was made of the fact that Mr Frick relied upon records provided to him without ascertaining by inspection, reference to Mr Burns, or otherwise their accuracy, or whether they were a sufficient basis upon which he might give the opinions contained in his report. However: • I am satisfied by Mr Frick's evidence that in producing his report, he preferred to conduct his own investigations and utilise his own information and experience (TS 1332 ll 2-11) rather than consult with Mr Burns. I am satisfied that Mr Frick's reasons for refraining from consulting Mr Burns in relation to the material in the Brief to Crop Expert were reasonable, namely that Mr Frick did not wish to be influenced by Mr Burns, whose position had been to maximise yield, or have his thought processes influenced by anyone involved in this case (TS 1330 ll 6-7, 1332 ll 19-21). I note that in any event the material with which Mr Frick was briefed included the farm managers' reports, and that he had reference to those reports prepared by Mr Burns (TS 1330 ll 20-21) as well as his own knowledge of the orchards from his work for previous owners of the relevant properties (TS 1335 l 20). • I am not persuaded that Mr Frick's approach in basing his expert report on material provided by the respondents (which, as I have noted, is in evidence) impacted adversely on the probative value of his report or otherwise renders his opinion irrelevant. Indeed as was pointed out by Sperling J in Elliot v Ivey [1998] NSWSC 116: The capacity of a professional person to give an opinion based on an exclusionary set of assumptions is implicit in this process. The implication is reasonable because professional men and women are accustomed to forming opinions on assumed facts in the course of their ordinary professional work. It is part of their stock in trade, developed by training and by experience in the practice of their profession. Thus it is that an expert witness has a much more limited role than that of a solicitor acting for a client. In particular, expert witnesses are not bound to use all information they might previously have obtained. On the contrary, expert witnesses are bound to confine their attention to specified factual assumptions which are made known to the court. The opinion is then only as good as the assumptions are established by evidence to be correct. (cf comments of Spiegelman CJ in ASIC v Rich [2005] NSWCA 152 ; (2005) 218 ALR 764 at [171] and discussion in I Freckelton & H Selby Expert Evidence (3rd ed) Lawbook Co 2005 p 629)


case_text: The general rule that hearsay evidence is not admissible, as recognised by s 59 Evidence Act , is relaxed in relation to expert opinions. Traditionally if expert witnesses relied on the existence or non-existence of some fact which was basic to the question on which they were asked their opinion, that fact needed to be proved by admissible evidence (JD Heydon Cross on Evidence (subscription service vol 1) Butterworths para 33825). However this so-called "basis" rule was extended at common law to allow knowledge of the expert derived from general experience to legitimately contribute to the opinion arrived at in the expert report. This knowledge derived from general experience could at common law be contrasted with specific information sought by an expert from third parties for comparative purposes as a basis for his or her opinion such information would likely be hearsay unless it were disclosed and admitted, and the resultant opinion therefore inadmissible ( English Exporters (London) Ltd v Eldonwall Ltd (1973) 1 Ch 415 at 421, Arnotts Ltd 24 FCR 313 at 350-351 and ASIC v Rich [2005] NSWCA 152 ; 218 ALR 764 at 800). 347 However the information Mr Frick obtained from the four industry sources he did not identify does not, in my view, fall within the definition of his "entire body of experience which is not articulated and, is indeed so fundamental to his professionalism, that it is not able to be articulated". The information from these sources was not, for example, information he had acquired from his practice which contributed to his specialist knowledge. This was information he specifically sought with a view to being in a position to give an expert opinion on the yield and packout forecasts in question. Further, not only is the resultant information from sources known only to Mr Frick, but the actual specific information (for example, data referable to packout rates on specific properties) is known only to Mr Frick and is not capable of being tested. In English Exporters (London) Ltd v Eldonwall Ltd (1973) 1 Ch 415 at 421 Megarry J said as follows: It is one thing to say "From my general experience of recent transactions comparable with this one, I think the proper rent should be [sterling]x": it is another thing to say "Because I have been told by someone else that the premises next door have an area of x square feet and were recently let on such-and-such terms of [sterling]y a year, I say the rent of these premises should be [sterling]z a year".


case_title: Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 ; (1990) ATPR 40-994


case_text: In any event to the extent that the first respondent was required to qualify its representations to the applicants in order that representations as to future conduct could be said to be made on reasonable grounds. I consider that the respondents appropriately and effectively did so. This is not an issue which was raised by the applicants, and indeed as Allsop J observed in Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [627] it does not follow that any statement in any commercial context which can be characterised as a promise must be accompanied by any existing legal or factual qualification. I address the issue in the interests of completeness in light of comments in such cases as Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189 at 201-2, Bowler 153 ALR 95 at 108, Famel Pty Ltd v Burswood Management Ltd (1989) ATPR 40-962 and Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [627] .


case_title: Famel Pty Ltd v Burswood Management Ltd (1989) ATPR 40-962


case_text: Section 52 of the Act provides that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Proceedings before this Court involving s 52 claims are not infrequent and feature widely varying factual scenarios. A number of principles should be kept in mind in considering claims in the context of s 52. These include the following: 1. Section 52 of the Act requires that the relevant corporation engage in conduct that is misleading or deceptive. Section 4(2)(a) of the Act provides that: a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant. "Conduct" is not co-extensive with "representation" in s 52 (Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 504, Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 per Gleeson CJ, Hayne and Heydon JJ at 603, McHugh J at 622) however engaging in conduct does encompass making representations (cf McGrath; in the matter of Pan Pharmaceuticals Ltd (in liq) v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2 at [150] ). 2. Where a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive, it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court the nature of the alleged conduct and the circumstances which rendered the conduct misleading: McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 (cf for example, Lahoud v Lahoud [2006] NSWCA 169 at [91] , Yang v American International Assurance Co (Australia) Ltd [2008] FCA 39 at [89] ). 3. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances: Watson 49 NSWLR 315 at 318 (cf for example Christofidellis v Zdrilic [1999] FCA 39 , Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 6) (2007) 63 ACLR 1 at 107, Yang FCA 39 at [89]). 4. The essential characteristic of misleading or deceptive conduct is that it contains or conveys a meaning which is false ( Global Sportsman Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88). 5. There will be no contravention unless error or misconception results from the conduct of the corporation, and not from other circumstances for which the corporation is not responsible ( Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 ; (1990) ATPR 40-994 at 50,950; Miller's Annotated Trade Practices Act (29th ed) 1.51.5). 6. Whether or not conduct is misleading or deceptive is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances ( Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202). 7. The words likely to mislead or deceive add little to s 52; at most they make it clear that it is unnecessary to prove that the conduct in question actually deceived or misled anyone (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198). Conduct will be likely to mislead or deceive if there is a real or not remote chance or possibility of misleading or deceiving, regardless of whether it is more than 50% ( Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at [6] , [15], Equity Access Pty Ltd ATPR 40-994 at 50,950, Global Sportsman Pty Ltd [1984] FCA 180 ; 2 FCR 82 , McHugh J in Butcher [2004] HCA 60 ; 218 CLR 592 at 626). 8. Silence, or failure to disclose information, can fall within the gamut of misleading or deceptive conduct in the sense that having regard to all the relevant circumstances, it constitutes conduct that has been misleading or deceptive or that is likely to mislead or deceive ( Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31 at 32, 41; Fleetman Pty Ltd v Cairns Pty Ltd [2005] FCAFC 80 at [1] - [2] ). 9. The conduct of a corporation must be viewed as a whole. It would be wrong to select some words or act which, alone, would be likely to mislead if those words or acts, when viewed in their context, were not capable of misleading (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 199). 10. As a general rule intention (or lack of intention) to mislead or deceive is not a necessary element of conduct proscribed by s 52 ( Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228). The liability imposed by s 52 is unrelated to fault (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 197). 11. The court must decide objectively whether the conduct is misleading or deceptive or likely to mislead or deceive, and that evidence that members of the public have actually been misled is not conclusive, although it can be very persuasive (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 198-199, McWilliam's Wines Pty Ltd v McDonald's System of Australia [1980] FCA 159 ; (1980) 33 ALR 394 per Smithers J at 399 and Fisher J at 414, Equity Access Pty Ltd ATPR 40-994 at 50,950). 234 It may be that the first respondent would anticipate that, if it had disclosed in the Ray White Information Memorandum that management reports existed, then Mr Tracy could ask for those management reports if he so wished. However that is not material. If the failure of the first respondent to produce the farm manager reports constituted conduct which was misleading or deceptive within the meaning of s 52, it is not to the point that Mr Tracy could have asked if such reports existed, and then whether he could have copies of them. (cf Fleetman Pty Ltd FCAFC 80 at [17]). The obligation to produce the reports would have been on the first respondent. 235 However as I have identified, the real issue in relation to these claims concerns the disclosure of information described in paras 17A(b)(i)-(iii) of the Further Amended Statement of Claim. Two initial questions arise, namely whether the first respondent was under an obligation to disclose the information in paras 17A(2)(i)-(iii), and whether it did disclose that information. Did the circumstances give rise to an obligation in the respondents to disclose this information to the applicants? 236 In my view it is clear that, in the circumstances, the first respondent was under an obligation to disclose to the applicants that the Nova and Ellenor fruit crops on the land was significantly affected by the fruit disease EBS and that the Murcott fruit crop on the land was affected by the fruit disease EBS. That these crops were so affected is clear from the evidence of Mr Owen-Turner and Mr Papacek, and not in dispute.


case_text: Silence may be relied upon in order to show a breach of s 52 when the circumstances give rise to an obligation to disclose relevant facts ( Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 557 and see the useful discussion in Miller's Annotated Trade Practices Act (29th ed) 1.52.53). If the circumstances do give rise to such an obligation, the next question is whether the relevant silence constituted conduct which was misleading or deceptive or likely to mislead or deceive ( Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 489, 504, 508). The duty to disclose is not confined to cases where there are particular relationships, such as trustee and beneficiary or solicitor and client ( Henjo Investments Pty Ltd [1988] FCA 40 ; 39 FCR 546 at 557). However the applicant bears the onus of establishing how or in what manner that which was left unsaid had the potential to mislead or deceive. To have that potential, omissions in communicating information must be relevant to the topic about which it is said a respondent's conduct is likely to mislead or deceive and material in the circumstances ( Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 467-468). 238 However in relation to the issue of the Ellendale fruit crop on the land being held on the trees past their pick date, I am not persuaded that the first respondent owed any such obligation. No evidence was given by Mr Tracy as to his expectations in relation to the Ellendales. Nor has it been shown that the fact of late picking of fruit, in the context of operating orchards, was information which required disclosure. Further, even assuming that the first respondent was silent in relation to this issue, the applicants have not shown how such conduct lead the applicants into error within the meaning of s 52 so as to constitute conduct of a misleading or deceptive nature ( Taco Bell 42 ALR 177). For example it has not been demonstrated that: • there was any expectation on the part of the applicants that the Ellendales would be picked at any particular time; or • information concerning any delays in picking of the Ellendales would be communicated to the applicants, so that silence on the matter meant that picking had not been delayed; or • even if picking was delayed, the applicants would suffer detriment ( Winterton Constructions Pty Ltd [1992] FCA 582 ; 39 FCR 97 at 114); or • information as to the timing of the picking of the Ellendales was material to any decision of the applicants (cf Fraser 55 FCR 452).


case_title: Freeman & Lockyer v Buckhurst Park Properties (Magnal) Ltd [1946] 2 QB 480


case_text: Although s 51A does not prescribe a rate of interest, the usual practice in the Federal Court has been to adopt the rates of interest applied in the Supreme Court of the State in which the application is commenced unless there is evidence that the rates are penal or not commercial: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 at [7] , Gordon v Commonwealth [2008] FCA 603. The current rate of interest prescribed under s 47 Supreme Court Act 1995 (Qld) is 10% per annum. No submissions were made by the parties as to an appropriate rate of interest. I consider that the rate of interest of 10% per annum under the Supreme Court Act should be applied.


case_title: Given v Pryor (1979) 24 ALR 442

case_text: A "representation" includes a statement made by a representor to a representee and relating by way of affirmation, denial, description or otherwise to a matter of fact ( Halsbury's Law of England , 4th ed vol 31 para 703, cf Given v Pryor (1979) 24 ALR 442 at 446). In this case the representation made by the first respondent through Mr Strahley is that the yield data (a) were produced by the field staff and (b) Mr Strahley would use the data in reforecasting the yield figures which he would later provide to Mr Tracy. It is not, in my view, an unqualified representation as to the yield figures, upon which the applicants could rely as against the first respondent. At its highest, the data is field information, which appears to have been provided for the information of Mr Tracy, but which was subject to review by Mr Strahley. To that extent I do not consider that the provision of the Yield Summary.xls to Mr Tracy conveyed representations that: • the land would yield 14,075 bins of fruit for the Crop Year 2005; • the land would yield 19,567 bins of fruit for the Crop Year 2006; or • the land would yield 22,322 bins of fruit for the Crop Year 2007. 492 However if I am wrong in relation to this finding, and the provision of the Yield Summary.xls does constitute a representation to the applicants as claimed in paras 14(b), (c) and (d), I nonetheless consider that the first respondent has discharged its onus of proving that it made the representations as to yields in 2005, 2006 and 2007 on reasonable grounds. In particular: • Similarly to my earlier observations in relation to para 13 Further Amended Statement of Claim, I accept that the total yield estimate for 2005 in the Yield Summary.xls was lower than the yield that had been achieved by the first respondent in 2003, and was accordingly achievable. • Although the estimates for 2006 and 2007 were in excess of yield achieved in previous years, I accept that the basis of the forecast was that the first respondent took into account historical data, physical inspection of the trees, current cultural practices, previous yields, and factors such as disease and weather conditions. I consider my earlier analysis of yield issues in relation to the 2005 Sunstate Budget.xls applicable to the applicants' claim in para 14(b), (c) and (d). • Mr Burns gave evidence that in his view: o the benefits of the improved pruning practices implemented in 2004 would have mainly been seen in the 2006 and 2007 Crop years (Burns affidavit sworn 11 July 2006 para 38); o the benefits of the improved pruning practices would have been "huge" (TS 673 l 39); o the improved spraying practices would have reduced disease, and improved fruit quality and therefore packout rates in the 2005 season and the following seasons (Burns affidavit sworn 11 July 2006 at [65]); • Mr Strahley gave evidence that he expected the improved cultural practices would improve the 2005 to 2007 yields (Strahley affidavit sworn 12 July 2006 at [228], [258]). • The claim of the applicants in paras 19(i), (j) and (k) as to the "true position" are not substantiated. I will deal specifically with the claims in para 19 in more detail later in the judgment. 493 This is not a case where there is no adequate foundation for optimistic predictions of future production. In my view the claims of the applicants in paras 14(b), (c) and (d) are not substantiated.


case_title: Global Sportsman Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82


case_title: Gordon v Commonwealth [2008] FCA 603


case_text: Silence may be relied upon in order to show a breach of s 52 when the circumstances give rise to an obligation to disclose relevant facts ( Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 557 and see the useful discussion in Miller's Annotated Trade Practices Act (29th ed) 1.52.53). If the circumstances do give rise to such an obligation, the next question is whether the relevant silence constituted conduct which was misleading or deceptive or likely to mislead or deceive ( Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 489, 504, 508). The duty to disclose is not confined to cases where there are particular relationships, such as trustee and beneficiary or solicitor and client ( Henjo Investments Pty Ltd [1988] FCA 40 ; 39 FCR 546 at 557). However the applicant bears the onus of establishing how or in what manner that which was left unsaid had the potential to mislead or deceive. To have that potential, omissions in communicating information must be relevant to the topic about which it is said a respondent's conduct is likely to mislead or deceive and material in the circumstances ( Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 467-468). 602 In any event, while Mr Perry SC in cross-examination of Mr Bailey made much of the fact that Mr Bailey's report replicated the historical production figures found in the 1 June 2004 Valuation Report, this replication was in no way directed by the respondents. The fact of duplication of the material was, if anything, an issue between Mr Tracy and Mr Bailey. Mr Tracy organised his own valuation report for his own purposes, by a valuer whose valuation of the relevant properties was, in the end result, very different from that of Mr Neubecker and indeed reflected the price which Mr Tracy had offered to pay. Notwithstanding the fact that the historical production data in the two reports was substantially identical, in my view this does not mean that, in the chain of causation, any original influence on the applicants exerted by the 1 June 2004 Valuation Report in relation to this data remained (contrast, for example, Henjo Investments Pty Ltd (No 1) [1988] FCA 40 ; 39 FCR 546). Indeed as the evidence also demonstrates, Mr Tracy clearly took into account Mr Bailey's report in his decision to purchase the relevant properties (Tracy statement sworn 17 November 2006 at [77], [78]). 603 In para 20B Further Amended Statement of Claim the applicants pleaded as follows: Each of the Second and Third Respondents is a person who: a) has aided, abetted, counselled or procured; or b) has been knowingly concerned and/or a party to the contravention by the First Respondent of section 51A and 52 of the Trade Practices Act 1974 as alleged in paragraph 20A. 604 There is no case against either Mr Strahley or Mr Breed in relation to s 53A.


case_title: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459


case_text: This "considered industry potential" to which Mr Frick refers could be based either on his own specialist knowledge, or more likely in this context, on information provided by unidentified industry sources. Even where observations in Mr Frick's expert report appear to be derived from his own knowledge (for example, in relation to packout rates his observations as to factors which can result in significant variations in crop performance at harvest (Frick expert report p 3) and his general comments concerning climatic conditions affecting packout rates as between coastal citrus and Central Burnett citrus (Frick expert report p 3)) it is not possible to be sure of the source of the opinion. In my view the manner in which Mr Frick's opinion as to packout rates was expressed in his report does not answer the question posed by Gleeson CJ in HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 at 427, namely whether the opinion was wholly or substantially based on specialised knowledge based on training, study or experience.


case_text: In Hill v Tooth & Co Ltd (1998) ATPR 41-649 the court considered whether materiality in inaccuracy of trading figures supplied to a prospective purchaser of a hotel was a relevant consideration in deciding whether a representation as to the volume of trade was misleading or deceptive for the purposes of s 52. Einfeld J held that the discrepancy in that case of 2.7% was not sufficiently material so as to constitute misleading or deceptive conduct, and there were no exceptional circumstances in that case to render the discrepancy sufficiently material ( Hill v Tooth & Co Ltd (1998) ATPR 41-649 at 41,221, cf Holmes J in Scootmore Holdings Pty Ltd v Bidvest Australia Limited [2001] QSC 329 at [120]).


case_title: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216


case_title: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 6) (2007) 63 ACLR 1


case_text: However, where it appears that the applicant had knowledge of the true facts by the time it allegedly acted on the impugned conduct, it is clearly much more difficult for the applicant to demonstrate reliance on such conduct: cf Rumpe v Camrol Pty Ltd [1985] FCA 5 , McMahon v Pomeray Pty Ltd [1991] FCA 289. Similarly, where the applicant makes its own inquiries or retained its own advisers to ascertain the true position there is some authority that reliance on the impugned conduct is negated: cf The Australian William E Simon Graduate School of Business Administration Incorporated v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1994) 51 FCR 243.


case_text: It is clear from considering this data in the context of preparing the 1 June 2004 Valuation Report that Mr Neubecker did not have detailed and exact information with respect to production. Rather, he presented what he perceived to be a careful estimate of expected yields for 2003/2004 as well as historical production figures for financial years (not Crop years as claimed by the applicants) based on the incomplete information before him which had been supplied by the first respondent. Similarly, by forwarding to Mr Tracy, as an interested potential purchaser, a copy of the 1 June 2004 Valuation Report with a view to providing an overview of the properties by an independent valuer, Mr Strahley and the first respondent were, at most, making a representation that the data in para 7.3 was a careful estimate of historical production figures and no higher. This did not somehow translate as claimed by the applicants into an unequivocal representation by either Mr Strahley or the first respondent that the data represented the unequivocally accurate position, which is the claim of the applicants. Given that the 1 June 2004 Valuation Report was provided by Mr Strahley (via Mr Douglas) to Mr Tracy, this is obviously not a case in that class where information is merely being passed on about property by an intermediary without any belief in its truth or falsity (cf John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR 41-249) However to say that a potential vendor's provision of a report by a valuer containing highly qualified estimates of production constitutes, without more, an unequivocal adoption and confirmation of those estimates as fact is simply incorrect in the circumstances of this case. 4. Block summary data (exhibit R30)


case_text: Whether or not the offer by Mr Tracy was a legally enforceable offer to purchase the relevant properties is an issue I need not decide. Further, the fact that an offer was made by Mr Tracy on 6 December 2004 was not conclusive misleading or deceptive conduct engaged in after entry in contractual relations may nonetheless contravene s 52 (cf Johnson v Eastern Micro Electronics Pty Ltd (1986) 70 ALR 339 at 352). However, that Mr Tracy made such an offer suggests that by 6 December 2004 he had decided to purchase the properties, and that he wished to expedite settlement of the transaction subject to his own due diligence. 582 Secondly, I consider the evidence demonstrates that Mr Tracy was determined to purchase the orchards notwithstanding that he had no experience of citrus or indeed of horticulture, and notwithstanding that he was repeatedly informed of issues affecting the potential profitability of the orchards, including: • the orchards had been unprofitable in previous years; • the orchards were in a geographical location which increased the risk of disease including EBS (as explained not only by the respondents but Mr Papacek and Mr Owen-Turner); • the orchards and the Packing Shed had historically required a considerable expenditure of money to enhance their performance, and bore considerable ongoing cultural costs; and • the performance of the orchards (as in the case of all horticulture) was clearly dependent on factors outside the control of the respondents including weather and disease. 583 Further, I consider it significant that Mr Bailey, the valuer engaged by Mr Tracy, valued the properties at the sum paid by Mr Tracy, and no higher . The applicants submitted that the valuation of Mr Bailey was derived using false data supplied by the first respondent, however: o I do not accept that submission. o Even on the premise advanced by the applicants that Mr Bailey relied on falsely inflated data, Mr Bailey still valued the properties at $4.5million; and o In any event, although Mr Tracy gave evidence that he was shocked by this seemingly low valuation (TS 322 ll 4, 445 ll 9 cf Tracy statement sworn 17 November 2006 at [78]), he proceeded to purchase the properties notwithstanding that "shock" because on his calculations the property would still show a return of capital and because he felt that the "canker scare was over". I consider it likely that Mr Tracy simply did not believe Mr Bailey's valuation, and preferred to rely on his own judgment as to the future value of the relevant properties.


case_title: Jones v Dunkel (1959) 101 CLR 298

case_text: Where it would reasonably have been expected that a party would adduce particular evidence but does not do so, adverse inferences may be drawn from the failure of the party to adduce that evidence: Jones v Dunkel (1959) 101 CLR 298. However I accept the submission of the respondents that: • The applicants were aware seven days prior to the commencement of the trial that the respondents did not intend to call Mr Breed, as the respondents were required to give the applicants notice of the witnesses they intended to call. • The applicants could have relied on their subpoena and required Mr Breed's attendance; and • The respondents approached Mr Breed to obtain an affidavit from Mr Breed in response to allegations in Mr Breed's unsigned statement filed in these proceedings, which allegations were put through Mr Green as the basis of that witness' assumptions.


case_title: Lahoud v Lahoud [2006] NSWCA 169

case_text: Section 52 of the Act provides that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Proceedings before this Court involving s 52 claims are not infrequent and feature widely varying factual scenarios. A number of principles should be kept in mind in considering claims in the context of s 52. These include the following: 1. Section 52 of the Act requires that the relevant corporation engage in conduct that is misleading or deceptive. Section 4(2)(a) of the Act provides that: a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant. "Conduct" is not co-extensive with "representation" in s 52 (Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 504, Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 per Gleeson CJ, Hayne and Heydon JJ at 603, McHugh J at 622) however engaging in conduct does encompass making representations (cf McGrath; in the matter of Pan Pharmaceuticals Ltd (in liq) v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2 at [150] ). 2. Where a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive, it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court the nature of the alleged conduct and the circumstances which rendered the conduct misleading: McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 (cf for example, Lahoud v Lahoud [2006] NSWCA 169 at [91] , Yang v American International Assurance Co (Australia) Ltd [2008] FCA 39 at [89] ). 3. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances: Watson 49 NSWLR 315 at 318 (cf for example Christofidellis v Zdrilic [1999] FCA 39 , Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 6) (2007) 63 ACLR 1 at 107, Yang FCA 39 at [89]). 4. The essential characteristic of misleading or deceptive conduct is that it contains or conveys a meaning which is false ( Global Sportsman Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88). 5. There will be no contravention unless error or misconception results from the conduct of the corporation, and not from other circumstances for which the corporation is not responsible ( Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 ; (1990) ATPR 40-994 at 50,950; Miller's Annotated Trade Practices Act (29th ed) 1.51.5). 6. Whether or not conduct is misleading or deceptive is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances ( Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202). 7. The words likely to mislead or deceive add little to s 52; at most they make it clear that it is unnecessary to prove that the conduct in question actually deceived or misled anyone (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198). Conduct will be likely to mislead or deceive if there is a real or not remote chance or possibility of misleading or deceiving, regardless of whether it is more than 50% ( Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at [6] , [15], Equity Access Pty Ltd ATPR 40-994 at 50,950, Global Sportsman Pty Ltd [1984] FCA 180 ; 2 FCR 82 , McHugh J in Butcher [2004] HCA 60 ; 218 CLR 592 at 626). 8. Silence, or failure to disclose information, can fall within the gamut of misleading or deceptive conduct in the sense that having regard to all the relevant circumstances, it constitutes conduct that has been misleading or deceptive or that is likely to mislead or deceive ( Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31 at 32, 41; Fleetman Pty Ltd v Cairns Pty Ltd [2005] FCAFC 80 at [1] - [2] ). 9. The conduct of a corporation must be viewed as a whole. It would be wrong to select some words or act which, alone, would be likely to mislead if those words or acts, when viewed in their context, were not capable of misleading (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 199). 10. As a general rule intention (or lack of intention) to mislead or deceive is not a necessary element of conduct proscribed by s 52 ( Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228). The liability imposed by s 52 is unrelated to fault (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 197). 11. The court must decide objectively whether the conduct is misleading or deceptive or likely to mislead or deceive, and that evidence that members of the public have actually been misled is not conclusive, although it can be very persuasive (Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd [1982] HCA 44 ; 149 CLR 191 at 198-199, McWilliam's Wines Pty Ltd v McDonald's System of Australia [1980] FCA 159 ; (1980) 33 ALR 394 per Smithers J at 399 and Fisher J at 414, Equity Access Pty Ltd ATPR 40-994 at 50,950).


case_text: In relation to these representations the respondents submitted, inter alia , that no such representations as alleged were made by the forecasts, and that in relation to the budgetary forecasts they could not be expected to materialise precisely. The respondents refer particularly to comments of Connolly J in Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49 at 59: This complaint is really characteristic of the particulars of alleged inaccuracy generally. What is really being said in relation to each of the heads of complaint is that the plaintiff spent more than was projected....Of course projections of this character, being estimates, cannot be expected to materialise precisely. 283 In relation to this submission I consider that: • Even if it is accepted that the predictions of the respondents were forecasts which could not be expected to materialise precisely, the claim of the applicants in relation to the future representations was not that the budgets had not materialised precisely but, in summary, that the relevant representations of the first respondent were misleading or deceptive and that the first respondent did not have reasonable grounds upon which to make them. • Putting to one side for the moment the issues raised by s 51A in relation to future representations, if the forecasts were misleading or deceptive in a non-material sense they could still be misleading or deceptive for the purposes of s 52. The fact that they did not materialise precisely would be an issue going to causation and remedies rather than the central issue of whether the conduct was, as a matter of factual determination, misleading (cf discussion in Miller at [1.52.25]). • The essence of s 51A is that it recognises that representations as to future matters may be misleading, including documents in the nature of budgetary forecasts. 284 Accordingly, I do not find this submission of the respondents helpful in considering the claims of the applicants with respect to these particular future representations.


case_text: The transaction involving the sale of the relevant properties followed commercial arms-length negotiations. As pointed out in Lam v Ausintel Investments Australia Pty Ltd (1990) 97 FLR 458 at 475, simply because one party has knowledge which the other does not, does not in itself impose an obligation on the first party to bring the information to the attention of the other party. This is only the case if there is an obligation of full disclosure. 219 Notwithstanding this, the applicants submitted that, in the context of a potential purchaser known by the respondents to have no citrus experience, it was incumbent on the respondents to disclose their knowledge of Mr Burns' decision to resign to Mr Tracy. Mr Tracy gave evidence that he was told in the last week of February 2005 by Mr Breed that Mr Burns had resigned, and specifically deposed that (Tracy statement sworn 17 November 2006): 110. ... The presence of Burns was an important consideration in my decision to go ahead with the sale transaction. This was because I had no technical experience in horticulture and was relying on Burns for this expertise... 111. After learning of Burns' resignation I telephoned Matthew Burns at his home which was on the Bundaberg orchard. I spoke to Burns and attempted to convince him to stay on however Burns was adamant. During this conversation Burns told me that he had informed Sunstate Orchards of his intention to resign months earlier. I told Burns that this was the first time that I had been informed of his intention to resign. I was greatly concerned that Burns' intention to resign had been concealed from me throughout the sale process. 220 In my view there is no evidence to support the existence of any obligation of the respondents to inform the applicants of any knowledge concerning Mr Burns' possible future resignation, so that a failure to do so was conduct which mislead or deceived or was likely to mislead or deceive the applicants.


case_text: It has been suggested that, because the deeming within the meaning of s 51A(2) takes effect unless the corporation adduces some evidence to the contrary, this does not mean that the onus of proof (which otherwise lies with the applicant) is reversed, but merely requires the corporation to go into evidence ( ACCC v Universal Sports Challenge Ltd [2002] FCA 1276 at [46] ). The weight of authority however is that the person making the representation can only avoid the deeming in s 51A(2) by establishing on the usual balance of probabilities that there were reasonable grounds for making the representation: Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 at [82] , Ting [1993] FCA 524 ; 118 ALR 543 at 552, Bowler v Hilda Pty Ltd (1998) 153 ALR 95 at 108 and 117, Sykes 88 FCR 511 at 513-514, Adelaide Petroleum NL & Ors v Poseidon Limited & Ors (1988) 10 ATPR 40-901 at 49,700, Phoenix Court Pty Ltd (1997) ATPR 46-179 (and cf other cases in support of this proposition listed at Miller , 29th ed para 1.51A.37).