case_text: So, for example, as observed by Sheppard J in Lezam Pty Ltd v Seabridge Australia Pty Ltd [1992] FCA 206 ; (1992) 35 FCR 535 at 541: Obviously the evidence needs to be looked at as a whole and put in context. There may be cases in which it will be found that later statements, whether written or oral, replace those made earlier or affect or modify them in some way... 156 If the respondents provided Mr Tracy with the Block Summary data during negotiations for purchase of the relevant properties, then even if I am wrong in my previous findings concerning the representations with respect to historical production in the 1 June 2004 Valuation Report, I consider that the information in the Block Summary data effectively replaced those representations, with the result that Mr Tracy was in full possession of accurate information prior to entering the contract to purchase the relevant properties. 157 A crucial issue in the proceedings, however, was whether the first respondent provided Mr Tracy with the Block Summary data on 3 December 2004 as the respondents claimed. Mr Tracy claimed that he did not receive it from the first respondent or Mr Strahley at any time (Tracy statement in reply sworn 26 September 2006 at [4(e), (f)]). 382 In any event, even if I am wrong in holding that no representation was made by the first respondent through Mr Strahley on 3 December 2004 that the net realisable value of the lemon crop would be $1.5 million, I consider that information provided to Mr Tracy after that meeting qualified any such representation to the extent that the initially misleading effect of the representation did not persist (cf Lezam Pty Ltd [1992] FCA 206 ; 35 FCR 535 at 541). In particular I take into account the following evidence: • On or about 6 December 2004 Mr Tracy had sought "parent company directors' guarantee" on the net realisable value of the current lemon crop for $1.5 million, however this request was refused. Mr Tracy's evidence was that the first respondent was not prepared to guarantee the net income for the lemon crop (TS 415 ll 36-37). This refusal suggests that the first respondent could not undertake that the net realisable value of the lemon crop was $1.5 million. • The purchase agreements were negotiated on the basis that the risk was with the purchaser and that the picking of the lemon crop was subject to weather. Contractual clauses were included to that effect. • Mr Tracy confirmed at the hearing that he had told Mr Breed before settlement of the purchase of the properties that he did not expect to obtain $1.5 million for the lemon crop, but had told Mr Breed that he was expecting to receive between $750,000 and $850,000 for the lemon crop (TS 264-265). • Not one of the budgets prepared by the first respondent and provided to Mr Tracy forecast such a return on the lemon crop. • Following the meeting of 3 December 2004 the first respondent provided Mr Tracy with information including budgetary forecasts for revenue, prices, yield and packout by carton for lemons. All of this documentation indicated that, in general, an expected price for lemons was $30 per carton. This material, provided by the first respondent and Mr Strahley within a short time of that meeting, included: o the 2005 Sunstate Budget provided to Mr Tracy on 10 December 2004, which forecast the net profit for all of the fruit crops would be $755,760, and recorded the budgeted price per carton for lemons at $30; o considerable additional documentation including: ▪ an Australian Daily Fruit Report (exhibit A12) (emailed by Mr Strahley to Mr Tracy on 10 December 2004); ▪ a schedule with historical prices and cartons together with the 2004/2005 estimates which recorded the budgeted price for lemons for this period at $22 per carton (exhibit A21) (emailed by Mr Strahley to Mr Tracy on 21 December 2004); ▪ a lemon pricing schedule for the 2005 season including estimated lemon prices for January-March 2005 (exhibit A37); ▪ an updated pricing schedule (exhibit A38) provided to Mr Tracy on 7 January 2005 recording the average price for lemons at $27.70 per carton with comments that the average price of lemons was $30 per carton; and ▪ re-forecasted estimates of yields by number of bins and re-forecast estimates of number of cartons of lemons provided by the first respondent in a Yield Summary, Carton Yield Summary and Valuation Yield Summary. • The valuation report of Mr Anthony Bailey, prepared at Mr Tracy's request and dated 11 January 2005, estimated the net realisable value of the lemon and lime crop at the orchards as only $407,610. The report states that this was calculated on the basis of: o estimates of volume provided by Mr Strahley, which appeared to be reasonable at that stage but could vary at the time of harvest due to adverse seasonal conditions; o fluctuating prices depending on the time of harvest and supply, and demand pressures existing at the time of marketing; o a 2005 crop estimate of 2,160 cartons of limes at $10 per carton and 43,722 cartons of lemons at $30 per carton, giving a gross of $1,333,263; o cost of picking, transport to Packing Shed, packing and transport to market being $12.91 per carton, and totalling $592,337; o a 25% profit and risk; o the resultant equation being: Total crop income $1,333,263 Less 25% profit and risk $333,316 $999,947 Less picking, packing and transport $592,337 $407,610 383 In relation to Mr Bailey's report the applicants submitted it "was infected with the false crop production figures provided to Mr Neubecker by Mr Breed" and "cannot be relied upon by the respondents in equity to negative reliance". Further, the applicants' refer to the fact that the 2005 valuation figure of $407,610 was after deduction of a profit and risk factor of 25%. However in my view: • There is no evidence that false crop production figures, including as to packout rates, were provided by the first respondent to Mr Neubecker, which could in turn taint this estimation of crop and realisable value. I have already addressed issues relating to the 1 June 2004 Valuation Report. • Mr Bailey's evidence at the hearing was that he asked Mr Breed for the number of cartons ex-farm gate and had not discussed packout rates with Mr Breed (TS 825 ll 21-22). In relation to this information: o there is no evidence that material in Mr Bailey's valuation report as to the value of the 2005 crop in s 9 of the valuation report was tainted by false figures provided by Mr Breed or any other person associated with the first respondent; o the report, produced within a short time frame at Mr Tracy's request, contained a clear statement that the predicted net realisable value of the lemon crop was considerably less than $1.5 million, and indeed indicated that any belief of Mr Tracy that the lemon crop would receive anything near $1.5 million did not take account of costs in getting the fruit to market, and risk. 384 In these circumstances the applicants could not claim to be misled by any representation by Mr Strahley on 3 December 2004 that the net realisable value of the lemon crop would be $1.5 million.


case_outcome: distinguished

case_text: In this context, the facts demonstrate that to the extent that the first respondent (through Mr Breed) had knowledge of Mr Burns' views in relation to leaving his employment, at most it was knowledge that Mr Burns was contemplating leaving once the orchards had sold, and that it was likely that he would if he did not receive an attractive offer to stay. I do not consider that Mr Burns had a firm intention to resign in 2004 - that intention crystallised after Mr Burns had met Mr Tracy and formed a view of Mr Tracy. This was made clear during the following exchange: HER HONOUR: I have a question for the witness, Mr Perry. Mr Burns?---Yes. Was the I'm trying to think of a way to put this question. Was it anything to do with Mr Tracy's acquisition of the orchards which caused you to decide to leave?---Yes. Can you tell us what that was?---Simply because the manner in which he - he spoke to me. Like, if - if that - that conversation was obviously a crux, I could have gone either way, but that conversation reinforced that I didn't--- Although you'd already resigned by then--- MR PERRY: He'd already resigned by then. ?---Yes, but I - you can--- HER HONOUR: You can change your mind?---You can still take up employment with someone afterwards. I was still working in the house. Yes, no, the - the - he was too business-like. It was as if there was never going to be any - I don't think he understood the world of farming, and I never want to work under someone who doesn't have an understanding or an empathy of farming. So the people you had worked with, Mr Breed and others, they did understanding farming?---Yes, or--- In your view?---Yes, or they have a feeling and understanding and - yes. Yes. (TS 730-731) (Contrast, for example, the situation in Lubidineuse v Bevanere Pty Ltd [1984] FCA 252 ; (1984) 55 ALR 273 where the relevant employee had planned to leave prior to the sale of the employer's business and had already organised new premises for herself.) 216 While the knowledge of Mr Breed and through him, the first respondent that there was a possibility that Mr Burns might resign after the sale of the properties could have been communicated to Mr Tracy during negotiations to purchase the properties, it is difficult to describe what that communication might have been other than vague information that Mr Burns was considering leaving his employment, but would more likely stay if he endorsed the circumstances of the sale and/or received an attractive offer to stay. 217 Accordingly I do not consider that the applicants' case is substantiated in relation to this claim so far as they allege that Mr Burns had an intention to resign in 2004. In the interests of completeness however, I propose to consider whether the respondents were under an obligation to disclose information to the applicants concerning the possibility that Mr Burns might resign after the sale of the properties. Did the circumstances give rise to an obligation in the respondents to disclose this information to the applicants? 223 Second, notwithstanding Mr Tracy's lack of experience in citrus, there is no evidence before the Court that Mr Burns' resignation would affect Mr Tracy or the other applicants adversely any more than would the resignation of any other employee of the orchards. This is because: • As Mr Tracy had no experience of citrus, all employees of the respondents at the relevant properties would have had more experience in the citrus industry than him. Although Mr Tracy was prepared to hire the staff already employed by the respondents, negotiations between Mr Strahley and Mr Tracy did not proceed on the basis that all staff (or indeed any staff) would stay rather the contract between the parties provided that the new entity would employ employees nominated by the respondents. I note, and accept the submission of Mr Bell QC during cross-examination, that this was more for the benefit of the employees, whom the first respondent was keen to ensure retained their positions, than Mr Tracy or the applicants (TS 290 ll 11-24) This position can be contrasted with, for example, the events in Lubidineuse v Bevanere Pty Ltd [1984] FCA 252 ; (1984) 55 ALR 273 where negotiations did proceed on that basis. In that case discussions between the vendor and proposed purchaser of a beauty salon proceeded on the basis that all staff of the salon would stay, in particular the senior employee who, after the completion of the sale, resigned and opened her own competing business nearby. Wilcox J found that, on the balance of probabilities, the vendor was aware, prior to the date of contract, that the senior employee intended to resign in the near future and establish a competing business in the near vicinity and that, despite this awareness, the vendor allowed the purchasers to purchase the business in the belief that the senior employee would stay on indefinitely ( Lubidineuse [1984] FCA 252 ; 55 ALR 273 at 283). • Although it is not in dispute that, prior to Mr Burns' arrival at the orchards, there had been no full-time horticulturalist, and that he had been employed to improve the cultural practices at the orchards with a view to improving the yields (Burns affidavit sworn 11 July 2006 at [32]), there was no evidence that Mr Burns was an employee critical to the business such that he could not be replaced in his role, or that other agricultural consultants available to the business (in particular Mr Owen-Turner and Mr Papacek) could not assist. Mr Tracy regarded Mr Burns as a "so-called expert horticulturalist who was an expert in citrus" however: o the evidence demonstrated that Mr Burns was a relatively recent graduate in horticulture at the time and appeared to have no particular expertise in citrus at the time of his engagement with the first respondent; o Mr Burns' evidence was that another horticulturalist could come later to the property, examine the orchard, recognise the history of the orchards including cultural practices at the orchards and continue the work in the orchards even in the absence of a handover of duties (TS 683 ll 1-15). Again, the role of Mr Burns can be contrasted with that of the senior employee in Lubidineuse v Bevanere Pty Ltd [1984] FCA 252 ; (1984) 55 ALR 273 whose primary role was one of client liaison and customer support, whose knowledge was important in securing the smooth transfer of customer goodwill to the new owners, and whose establishment of a new business resulted in the defection of customers and undermining of the business the subject of the sale. 224 Third, as emerged during cross-examination, Mr Tracy gave evidence that he was told by Mr Breed, and believed, that Mr Strahley had known of Mr Burns' intention to resign, and had instructed Mr Breed not to tell Mr Tracy of this intention (TS 261 ll 42-46, 262 ll 1-2). Mr Tracy said that he believed this deliberate concealment "was consistent with the misinformation that had been given or perpetrated upon me through the whole process" (TS 260 ll 18-20). However other than what appears to be a statement in Mr Breed's unsigned statement, which for reasons I have already given is of little evidentiary value, there is no evidence that Mr Strahley ever gave anyone instructions to conceal such information from Mr Tracy, or indeed that he had known of Mr Burns' state of mind prior to February 2005. 225 I do not find the claim of the applicants in para 17A(a) substantiated.


case_outcome: cited

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_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: 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_title: McWilliam's Wines Pty Ltd v McDonald's System of Australia [1980] FCA 159 ; (1980) 33 ALR 394


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 failure of an expert assessing the reasonableness of predictions as to primary production to visit the properties would, as a general proposition, be an issue relevant to the value of the resultant expert report, although it would not necessarily render the opinion irrelevant and inadmissible (cf Mount Lawley Pty Ltd v Western Australian Planning Commission [2006] WASC 82). In this case I accept the submission of the respondents as to the futility of attendance at the orchards by Mr Frick in circumstances where the orchards had not been maintained for a year. Evidence was given by Mr Harrison, who inspected the property in June 2006, that in June 2006. The health of the trees was obviously very poor. The rows were overgrown, the trees were still have fruit on from the year before from the season before. The watering regime had not been maintained. There was just a slow well, a an obvious lack of management throughout the orchard. (TS 1275 ll 36-40) 310 And later during the hearing: Well, the condition of the trees, as I assumed in the February '05, compared to what I saw in June '06, June '06 the trees were not able to be salvaged, and it was treated as agricultural land. (TS 1276 ll 13-16) 311 This evidence was not challenged by the applicants.


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: 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] ).


case_title: Notaras v Hugh [2003] NSWSC 167

case_text: I note that even if I had considered that the probative value of Mr Frick's expert report was not outweighed by the prejudice to the applicants within the meaning of s 135 , I would have ruled that it be given no weight. The weight to be accorded to an expert opinion depends to a significant degree upon the factual basis for such an opinion (cf for example Ramsay v Watson [1961] HCA 65 ; [1961] 108 CLR 642 at 649, Branson J in Quick 87 FCR 371 at 621, Notaras v Hugh [2003] NSWSC 167 at [20] ). I have already discussed in detail the difficulties associated with the lack of identification of sources, and what appears to be the intertwining of information from those sources with the specialised knowledge of Mr Frick in producing his report. Given the facts that: • a significant factual basis of Mr Frick's opinions was unidentified persons contacted specifically for the purpose of obtaining information upon which to base his opinions, which sources cannot be tested in any way; and • importantly, the extent to which Mr Frick's opinions were based on these sources compared with his own specialised knowledge (or, in relation to yield, the DPI publication) was unclear from his report the inevitable result in my view was that the report could be accorded no weight even if admitted.


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_outcome: considered

case_text: Section 51A does not provide an independent cause of action separate from s 52 or other sections in Part V of the Act ( Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR 46-179 at 54,432, cf Sykes v Reserve Bank of Australia (1998) 88 FCR 511 at 513-514). Rather, s 51A provides, in summary, that where a corporation makes a representation with respect to any future matter and it does not have reasonable grounds for making the representation, the representation shall be taken to be misleading (s 51A(1)). Section 51A in that respect is a "subset of section 52": Phoenix Court Pty Ltd (1997) ATPR 46-179 , Sykes 88 FCR 511 at 514, Quinlivan v Australian Competition & Consumer Commission [2004] FCAFC 175 at [5] ). I shall consider s 51A in further detail later in this judgment in the context of the future representations alleged by the applicants. 277 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). 279 The effect of s 51A was encapsulated neatly by Goldberg J in Phoenix Court Pty Ltd (1997) ATPR 46-179 where his Honour observed: Section 51A does not create an independent cause of action separate from section 52 and other sections in Pt V of the Act but rather casts the burden of proof on the respondent and if that burden is not discharged then a breach of s52 is established by the applicant proving the representation as to the future matter and the fact that it did not come to pass. 280 Clearly whether the representor had "reasonable grounds" to make the relevant representation will depend upon the facts of the case in question. I consider this issue later in the judgment. 281 A second general observation with respect to the future representations concerns the applicants' claim that each budgetary forecast as to a future matter "would be" as is recorded in the budget. This expression appears in the Further Amended Statement of Claim in para 13(a)-(c), para 16(a)-(d) and para 17(c) and (d) with respect to budgeted costs and returns; paras 13(a)-(d) and 16 (a)-(d) with respect to projected fruit crops; para 13(d) and 16(d) with respect to packout rates; and para 16(f) with respect to yield. 321 The reasons given for this approach were that: • in relation to validation of the yield data the DPI publication was published in 1994 and specifically concerned the Central Burnett region as distinct from the South Burnett region where the relevant properties were located; and • in relation to providing an opinion as to packout rates Mr Frick stated in his expert report that information had been gained directly from industry contacts because there was no published data available to work with. (Frick expert report p 3). 322 Mr Frick did not identify the persons whom he consulted to validate the yield data or ascertain the packout rate information, although he did say during cross-examination that he had contacted four separate people: • one of the persons he contacted had a property half way between Bundaberg and Tiaro; • one of the persons was a Central Burnett grower; • the other people he contacted were citrus agricultural consultants. 323 In his expert report he stated: This information is in my notes and is not tendered as reference information. (Frick expert report p 2) 412 Accordingly: • The evidence demonstrates that the relevant properties were not maintained as orchards for the 2005 calendar year (or indeed the balance of the 2004-2005 financial year), and accordingly were not conducted after 23 June 2005 in such a manner as to earn revenue or profit, incur costs or cause fruit to be picked. • The evidence demonstrates that, objectively, the events predicted by the respondents' future representations in the 2005 Sunstate Budget.xls (the subject of para 13) did not occur. In the words of Goldberg J in Phoenix Court Pty Ltd (1997) ATPR 46-179 , the events did not come to pass. Sections 51A and 52 are thus enlivened.


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] ). 331 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. 338 If the Court were to admit Mr Frick's expert report, the next issue is the weight to be ascribed to it because of the absence of identification of sources on which Mr Frick based his opinion (cf Branson J in Quick 87 FCR 371 at 621, Sydneywide Distributors Pty Ltd [2002] FCAFC 157 at [16] and [87]). 354 I note that even if I had considered that the probative value of Mr Frick's expert report was not outweighed by the prejudice to the applicants within the meaning of s 135 , I would have ruled that it be given no weight. The weight to be accorded to an expert opinion depends to a significant degree upon the factual basis for such an opinion (cf for example Ramsay v Watson [1961] HCA 65 ; [1961] 108 CLR 642 at 649, Branson J in Quick 87 FCR 371 at 621, Notaras v Hugh [2003] NSWSC 167 at [20] ). I have already discussed in detail the difficulties associated with the lack of identification of sources, and what appears to be the intertwining of information from those sources with the specialised knowledge of Mr Frick in producing his report. Given the facts that: • a significant factual basis of Mr Frick's opinions was unidentified persons contacted specifically for the purpose of obtaining information upon which to base his opinions, which sources cannot be tested in any way; and • importantly, the extent to which Mr Frick's opinions were based on these sources compared with his own specialised knowledge (or, in relation to yield, the DPI publication) was unclear from his report the inevitable result in my view was that the report could be accorded no weight even if admitted.


case_outcome: applied

case_text: Section 51A does not provide an independent cause of action separate from s 52 or other sections in Part V of the Act ( Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR 46-179 at 54,432, cf Sykes v Reserve Bank of Australia (1998) 88 FCR 511 at 513-514). Rather, s 51A provides, in summary, that where a corporation makes a representation with respect to any future matter and it does not have reasonable grounds for making the representation, the representation shall be taken to be misleading (s 51A(1)). Section 51A in that respect is a "subset of section 52": Phoenix Court Pty Ltd (1997) ATPR 46-179 , Sykes 88 FCR 511 at 514, Quinlivan v Australian Competition & Consumer Commission [2004] FCAFC 175 at [5] ). I shall consider s 51A in further detail later in this judgment in the context of the future representations alleged by the applicants. 275 The "future representations" are the subject of paras 12(a) and (b), 13, 14 (b) and (c), 15, 16 and 17 Further Amended Statement of Claim. For the respondents, s 51A is particularly significant because although s 51A does not provide an independent cause of action separate from ss 52 or 53A, and nor does it define a norm of conduct, if the facts demonstrate that the first respondent has made the representations alleged, the effect of s 51A is that the representation shall be taken to be misleading unless the first respondent had reasonable grounds for making the relevant representation . Conversely if the first respondent demonstrates that it had reasonable grounds for making the relevant future representations, it will not only be free from liability under s 51A but also from liability under s 52 of the Act. ( Ting v Blanche [1993] FCA 524 ; (1993) 118 ALR 543 at 552, Quinlivan FCAFC 175 at [6].) 607 The interplay of ss 51A and 75B was also considered by the Full Court in Quinlivan v Australian Competition and Consumer Commission [2004] FCAFC 175 where the Court said: Accordingly, where s 75B or s 80 accessorial liability is in issue in relation to a representation with respect to a future matter, the existence or otherwise of reasonable grounds will be relevant. If reasonable grounds exist, there will have been no contravention and thus no question of accessorial liability will arise. However, as against the accessorial respondent, the onus will be on the applicant to show the respondent had actual knowledge that • the representation was made and • it was misleading or • the corporation had no reasonable grounds for making it. (at [15]) 608 The respondents in this case submitted that para 20B Further Amended Statement of Claim did not adequately plead the essential elements of the cause of action, and did not allege: • actual knowledge by Mr Strahley of each alleged representation; • that he knew each representation was misleading; and • that he knew that the first respondent had no reasonable grounds for making the alleged representations as to future matters. 609 By way of example the respondents pointed to the allegation regarding the Most Likely Scenario, which the applicants in para 16 pleaded was created by Mr Breed, and submitted that the applicants did not plead that Mr Strahley had actual knowledge of such representations, or that they were misleading, or that there were no reasonable grounds for making the forecasts or predictions. 610 The applicants in response submitted as follows: The evidence of accessorial liability for the Second Respondent is as follows:- 1. Strahley caused the 2004 Valuation containing the false crop production figures to be sent to the Applicants; 2. Strahley sent the Applicants the 2005 Budget, Yield Summary.xls, Carton Yield Summary.xls, and Valuation Yield Summary.xls to the Applicants. The evidence of accessorial liability for the Third Respondent is as follows:- 1. Breed made the representations about the Most Likely Scenario and the oral representations made on 5 January 2005. 2. Breed sent the Applicants the Production Pricing Schedule Jan.05.xls 611 In my view the applicants have not properly pleaded the required elements of a s 75B claim against either Mr Strahley or Mr Breed regarding any of the representations in the Further Amended Statement of Claim. Paragraph 20B does not allege actual knowledge by either Mr Strahley or Mr Breed of each alleged representation, that either respondent new each representation was misleading, or that either respondent knew that the first respondent had no reasonable grounds for making the alleged representation as to future matters. The written submissions of the applicants with respect to s 75B constitute an attempt to replead their claims after the hearing has concluded, but in any event continue to fail to address the elements of s 75B as articulated in Yorke v Lucas and Quinlivan . I consider that even if I have erred in my findings that the representations of the first respondent as pleaded in the Further Amended Statement of Claim did not breach ss 51A or 52, the claims of the applicants against Mr Strahley and Mr Breed in respect of accessorial liability failed at the threshold.


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).


case_title: Ricochet Pty Ltd v Equity Trustees Executors and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229


case_title: Rumpe v Camrol Pty Ltd [1985] FCA 5


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_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] ). 338 If the Court were to admit Mr Frick's expert report, the next issue is the weight to be ascribed to it because of the absence of identification of sources on which Mr Frick based his opinion (cf Branson J in Quick 87 FCR 371 at 621, Sydneywide Distributors Pty Ltd [2002] FCAFC 157 at [16] and [87]).


case_text: Section 51A does not provide an independent cause of action separate from s 52 or other sections in Part V of the Act ( Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR 46-179 at 54,432, cf Sykes v Reserve Bank of Australia (1998) 88 FCR 511 at 513-514). Rather, s 51A provides, in summary, that where a corporation makes a representation with respect to any future matter and it does not have reasonable grounds for making the representation, the representation shall be taken to be misleading (s 51A(1)). Section 51A in that respect is a "subset of section 52": Phoenix Court Pty Ltd (1997) ATPR 46-179 , Sykes 88 FCR 511 at 514, Quinlivan v Australian Competition & Consumer Commission [2004] FCAFC 175 at [5] ). I shall consider s 51A in further detail later in this judgment in the context of the future representations alleged by the applicants. 277 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). 413 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. 418 To paraphrase Heerey J in Sykes v Reserve Bank of Australia (1998) 88 FCR 511 at 513, the task of the first respondent is therefore to show: ● Some facts or circumstances ● Existing at the time of the representation ● On which the first respondent in fact relied ● Which are objectively reasonable and ● Which support the representation made. 419 In considering the facts and circumstances on which the first respondent relied in making the representations as to future economic performance of the orchards, it is in my view critical to consider the process in which the first respondent engaged in compiling the 2005 Sunstate Budget. 420 First, Mr Strahley gave evidence that the budget model upon which the 2005 Sunstate Budget was based was developed in 2001 in conjunction with Dr Matt Shaffer, a specialist with skills in financial modelling who was employed by the US parent company of the first respondent. The budget also provided for revenue and cost on a per tree basis. The first respondent had utilised the template since 2001 in preparation of the yearly budgets (Strahley affidavit sworn 12 July 2006 at [10], [225]). 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: 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). 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: 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_title: The Minister v Ryan (1963) 9 LGRA 112

case_text: Sixth, it is unfortunate that no other expert evidence in relation to the issue of yield and packout forecasts was produced to the Court to contradict or otherwise answer the opinion of Mr Frick. However this does not automatically mean that the Court is obliged to accept Mr Frick's expert opinion (cf Hardie J in The Minister v Ryan (1963) 9 LGRA 112 at 114). The fact that Mr Frick stated in his oral evidence that he would not have been able to obtain the information from his industry sources upon which he appeared to rely for his opinion, without maintaining confidentiality, does not diminish the prejudice to the applicants in these circumstances.


case_text: The "future representations" are the subject of paras 12(a) and (b), 13, 14 (b) and (c), 15, 16 and 17 Further Amended Statement of Claim. For the respondents, s 51A is particularly significant because although s 51A does not provide an independent cause of action separate from ss 52 or 53A, and nor does it define a norm of conduct, if the facts demonstrate that the first respondent has made the representations alleged, the effect of s 51A is that the representation shall be taken to be misleading unless the first respondent had reasonable grounds for making the relevant representation . Conversely if the first respondent demonstrates that it had reasonable grounds for making the relevant future representations, it will not only be free from liability under s 51A but also from liability under s 52 of the Act. ( Ting v Blanche [1993] FCA 524 ; (1993) 118 ALR 543 at 552, Quinlivan FCAFC 175 at [6].) 277 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_text: As Mason CJ observed in Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525, the statutory cause of action for which s 82(1) Trade Practices Act provides arises when the applicant suffers loss of damage "by" contravening conduct of another person. Section 82(1) clearly comprehends the common law concept of causation.


case_title: Watson v Foxman (1995) 49 NSWLR 315

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). 179 Earlier in the judgment I referred to words of warning of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 concerning oral statements claimed to be misleading or deceptive. His Honour said: 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. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court "must feel an actual persuasion of its occurrence or existence"... 180 This principle is of particular relevance in relation to this claim. 181 I do not consider this claim substantiated for the following reasons. 377 First, on the basis of the evidence before the court I consider it possible that Mr Strahley mentioned the figure of $1.5 million during the meeting in relation to the lemon crop. This potentially ties in with the gross income from the lemons and limes to which Mr Bailey referred in his valuation report of 11 January 2005. However even if Mr Strahley had mentioned the amount of $1.5 million referable to the lemon crop, on the facts I do not consider it at all likely that Mr Strahley made the representation alleged by the applicants, namely that this represented the net realisable value of the lemon crop. No documentation existed which was produced by the respondents, either for Mr Tracy's benefit or otherwise, which could support a claim that the net realisable value of the lemon crop following deduction of costs including picking, packing and transport would be $1.5 million. The only evidence before the Court that Mr Strahley made the representation to Mr Tracy claimed by the applicants is the oral evidence of Mr Tracy that he recalled Mr Strahley making a statement referring to $1.5 million for the lemon crop at the meeting of 3 December 2004. Mr Tracy took no notes of the meeting or the statement and I have already found that Mr Tracy's recollection in relation to another claim arising from that meeting was inaccurate. I note again the warning of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 concerning recollection of oral statements claimed to be misleading or deceptive. 378 Second, and in any event, there is evidence from which it can be inferred that Mr Tracy himself derived the amount of $1.5 million for the lemon crop from other information he had received in relation to the orchards and citrus prices in general, including information he received from third parties. So: • The evidence demonstrates that the first respondent communicated to Mr Tracy that it was only prepared to accept $4.5 million for the relevant properties. An email from Mr Tracy to Mr Douglas acting for the first respondent (which Mr Douglas then forwarded to Mr Strahley on 6 December 2004: exhibit A106) shows that Mr Tracy had offered $4 million, but was prepared to increase his offer to $4.5 million if the directors of the parent company of the first respondent gave a directors' guarantee that the net realisable value of the lemon crop was $1.5 million. (TS 415 ll 46-48, 416 ll 1-2, 419-420). This appeared to be the first time that reference to valuation of the lemon crop appears in writing. • Mr Tracy had made undated handwritten notes (Ex R40) which were tendered as evidence as to his deliberations in relation to purchasing the relevant properties. These handwritten notes included calculations. Mr Tracy agreed that the notes showed: o he had calculated receiving 38,000 cases of lemons, but had taken a conservative approach and discounted this sum by 10% to 35,000 cases of lemons; and o he had formed a view that he would receive $50 net per case of lemons. On the notes he had written "1.75 M", and below that following further calculations "1.5 LEM". (Significantly in my view, Mr Tracy said at the hearing in explanation of this figure " leaving me with a number of 1.5 lemons " (TS 419-420)). 379 Although no concession was made by Mr Tracy as to when these notes were made, I accept the submission of Mr Bell QC that it is likely that, given the nature of the notes and the information they reference, the notes date from early December 2004, and probably after the meeting with Mr Strahley when Mr Tracy was considering making an offer for the relevant properties, and that they reflect Mr Tracy's deliberations in relation to making an offer. If that is so, then it is clear that Mr Tracy had formed a view as to the approximate number of cartons of lemons which could be produced by the orchards, namely 38,000 cartons (despite his evidence that he did not have such information: TS 412 ll 41-44). It is not clear where Mr Tracy derived this information - a likely source was the first respondent although there is no evidence as to whether this figure was provided to Mr Tracy and if so what it represented.


case_text: To paraphrase comments of Habersberger J in Wenczel v Commonwealth Bank of Australia [2006] VSC 324 at [90] , it is obvious to me that neither the applicants nor the respondents were prepared to run the risk of calling Mr Breed, helpful though his evidence would have been. 122 In circumstances where Mr Breed's affidavit is untested, little weight should be attributed to Mr Breed's affidavit in respect of any matter in dispute in these proceedings, including of course with respect to this particular claim. Further, given the circumstances I consider the more practical approach is for me to note that neither party was prepared to call Mr Breed as a witness in these proceedings. I draw no inferences against either party for their failure to call Mr Breed as a witness. 123 I now turn to the representations the subject of claims by the applicants in the Further Amended Statement of Claim.


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_text: Of particular relevance in the circumstances of the case before me are comment of Hill J in Winterton Constructions Pty Ltd v Hambros Australia Ltd [1992] FCA 582 ; (1992) 39 FCR 97 at 114 where his Honour observed: Obviously, it is difficult to see how a mere silence could, of itself, constitute conduct which is misleading or deceptive or likely to mislead or deceive. However, if the circumstances are such that a person is entitled to believe that a relevant matter affecting him or her adversely would, if it existed, be communicated, then the failure to so communicate it may constitute conduct which is misleading or deceptive because the person who ultimately may act to his or her detriment is entitled to infer from the silence that no danger of detriment existed. Thus, where a duty to speak is imposed, silence may constitute misleading or deceptive conduct. (emphasis added) 205 In summary the applicants submitted: • the evidence shows that the respondents knew that Mr Tracy had no experience with citrus; • Mr Tracy's evidence identified the importance of the continued presence of the horticulturalist; • Mr Burns' written evidence was that in July 2004 he notified Mr Breed that it was not his present intention to stay at the orchards after their sale; • any distinction drawn by the respondents between formal notice of Mr Burns' resignation, and the respondents' knowledge of Mr Burns' decision to resign, is one of semantics only; • in the context of a potential purchaser known by the respondents to have no citrus experience it was incumbent on them to disclose their knowledge of Mr Burns' decision to Mr Tracy. 206 In relation to this issue the respondents submitted in summary: • In fact, Mr Burns had not informed the first respondent that he intended to resign in November 2004. • Mr Burns' evidence was that he had considered travelling in 2004, that he had discussed this with Mr Breed but had not made any definite plans, and that he was waiting to see who purchased the orchards before making any decision. • It was Mr Tracy's acquisition of the orchards which caused Mr Burns to finally decide to leave. • Mr Burns gave notice of resignation on or about 11 February 2005. Prior to that date Mr Burns did not inform Mr Breed or any other person at Sunstate of his resignation. • Mr Tracy had not informed Mr Strahley that the presence of Mr Burns was an important or material consideration in the decision to proceed to enter into the agreements. Mr Burns' continuing employment was not one of the conditions negotiated to be included in any agreement between the parties. If Mr Burns' continuing employment was important to Mr Tracy, Mr Tracy could easily have identified it as a condition of agreement with the first respondent. • Mr Tracy's evidence was that prior to 17 February 2005 he had spoken with Mr Burns about future opportunities at the orchard but that Mr Burns did not provide any commitment to stay on with Mr Tracy. • Another horticulturalist could easily have been employed. In any event, Mr Burns was only one member of the management team. Mr Papacek and Mr Owen-Turner were horticultural experts who were available, had been retained by Sunstate, and could have been retained after the purchase of the properties. 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_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: Although the applicants do not specifically plead the relevant legislation, in prescribed circumstances s 75B of the Act imposes accessorial liability in relation to certain provision of the Act . In Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666-669 the High Court observed that: • the words "aided, abetted, counselled or procured" in s 75B are taken from the criminal law where they are used to designate participation in a crime as a principal in the second degree or as an accessory before the fact (at 666-667); • notwithstanding that s 75B deals with civil rather than criminal liability, the words in s 75B should be interpreted according to their meaning in criminal law (at 668, 669); • in the criminal law a person will be guilty of the offences of aiding and abetting or counselling and procuring the commission of an offence only if he intentionally participates in it (at 667); • to form the requisite intent he must have knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime (at 667); • a person can only be brought within para 75B if he intentionally aided, abetted, counselled or procured a contravention by the representor of s 52 Trade Practices Act (at 667); • The fact that the representations may have been made by the person is not sufficient to bring the person within s 75B he or she must have had knowledge of their falsity (at 668) 611 In my view the applicants have not properly pleaded the required elements of a s 75B claim against either Mr Strahley or Mr Breed regarding any of the representations in the Further Amended Statement of Claim. Paragraph 20B does not allege actual knowledge by either Mr Strahley or Mr Breed of each alleged representation, that either respondent new each representation was misleading, or that either respondent knew that the first respondent had no reasonable grounds for making the alleged representation as to future matters. The written submissions of the applicants with respect to s 75B constitute an attempt to replead their claims after the hearing has concluded, but in any event continue to fail to address the elements of s 75B as articulated in Yorke v Lucas and Quinlivan . I consider that even if I have erred in my findings that the representations of the first respondent as pleaded in the Further Amended Statement of Claim did not breach ss 51A or 52, the claims of the applicants against Mr Strahley and Mr Breed in respect of accessorial liability failed at the threshold.


case_text: The often quoted observations of the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 to 8, loomed large in the respondent Minister's submissions. The Court there indicated that: "it is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so, the main arena for the settlement of disputes would move from the Court of first instance to the appellate Court, tending to reduce the proceedings in the former Court to little more than a preliminary skirmish." As I will indicate in a moment, that observation has particular salience in this matter.


case_text: I would refer as well to the observations of Allsop J, in the Full Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at [36] , where his Honour said: "The roles of the trial and the appeal need to be kept distinct. The appeal is not a reworking of the trial taking account of such impediments as are thrown up by the judge's finding which alter the landscape." 4 By way of background to the present application, I would note that it arises in proceedings under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of a delegate of the respondent Minister refusing an application for a class BN subclass (136), Skilled-Independent Permanent Resident's visa. That decision was at the time not one for which an appeal lay to the Migration Review Tribunal. It was, in consequence, made the direct subject of an application under s 39B of the Judiciary Act for relief by way of constitutional writs. The application was dismissed by the Federal Magistrate. The appellant now appeals to this Court impugning the decision of the Federal Magistrate. 21 To permit that evidence now to be called, in my view, is to do the very thing that Allsop J in Branir indicated ought not be done. It is to have a reworking of the trial taking account of such impediments as are thrown up by the judge's findings which alter the landscape. I am not, in the circumstances of this matter, prepared to grant the leave that is sought. It seems to me that what is sought is no more than an attempt to retrieve a point that had been raised and was lost. 22 Accordingly, I will refuse leave to adduce the affidavit evidence that is sought. The orders of the Court will be that leave not be granted in relation to ground 1 of the amended notice of appeal. Grounds 4 and 5 of that amended notice of appeal I am informed now, are not being prosecuted. I adjourn consideration of ground 6 to the hearing of the appeal. Secondly, leave will not be granted to adduce fresh evidence on the appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 2 March 2007 Counsel for the Appellant: Mr A Silva Solicitor for the Appellant: Silva Solicitors Counsel for the Respondent: Mr A Markus Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 February 2007 Date of Judgment: 26 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/248.html


case_title: MZWCL v MIMIA [2006] FCA 635

case_text: The two new grounds of appeal sought to be raised were not raised at the hearing before his Honour. The principles governing the grant of leave to argue new grounds are reasonably well settled. Leave should only be granted if it is expedient in the interests of justice to do so. In considering whether it is so in the interests of justice, it is necessary to give some consideration to the merits of the ground proposed, to determine whether they have reasonable prospects of success. Authorities in support of these well known propositions have been collected in a decision of my own, MZWCL v MIMIA [2006] FCA 635 at [35] and [36]. There is one matter which I would give particular attention to in considering the question of leave, and that is in some cases it is not only appropriate but necessary to have regard to the relation of what is now being sought to be done in the appeal to what was done at the trial.


case_title: NAJT v MIMIA [2005] FCAFC 134

case_text: The applicant has placed particular reliance, in relation to the grant of leave, upon the majority decision of the Full Court of the Federal Court in NAJT v MIMIA [2005] FCAFC 134 , and particularly upon the factors referred to at [166]. Apart from referring to what are well accepted propositions relating to the prospects of success and whether there was an acceptable explanation of why the grounds were not raised below, those factors deal by and large with issues relating to the efficient conduct of an appeal, whether the issues themselves raised have an importance beyond the case at hand and to prejudice. 7 The one factor upon which particular reliance is placed by the applicant is: what is at stake in a case for the appellant? In the context of this particular visa application, it is said, that if the appellant is not permitted to raise the grounds he wishes to raise, and be given the opportunity to successfully prosecute them, he will not be able to come to Australia at all. Why this particular outcome is said to be inevitable is not the subject of evidence before me. 8 Turning now to the two grounds, the first is the proposed new ground 1 of the amended notice of appeal: "1. The learned Federal Magistrate erred by holding that under the combined effect of s 66(2)(c) & s 66(3) of the Migration Act 1958 ( 'the Act' ) the Delegate was under no obligation to give written reasons for the decision. These subsections of the Act , s 66(3) in its entirety and a part of s66(2)(c) as relevant should be construed as invalid because they are inconsistent with the Federal Court's and Federal Magistrate Court's power under the Constitution both in its original jurisdiction and its appellate jurisdiction and the principle of the Rule of Law . These subsections protect decisions that are potentially affected by jurisdictional error by allowing reasons not to be disclosed and thus they impede or prevent an applicant from establishing jurisdictional error on the part of the Delegate."


case_text: One possible basis is that the duty to give reasons is so fundamental to the proper conduct of judicial review as to be, in effect, an implication into Ch 3 of the Constitution , and in particular to s 75(v) of the Constitution . The difficulty with that proposition is that it stands in sharp contrast with what has been accepted common law in this country in decisions of the High Court for some time. In Public Service Board of New South Wales v Osmond [1986] HCA 7 ; (1986) 159 CLR 656, the High Court, in the context of State legislation, indicated that at common law a governmental decision-maker had no duty to give reasons for decision. The same proposition was articulated by Stephen J in Salemi v MacKellar (No 2) [1977] HCA 26 ; (1977) 137 CLR 396 at 443 to 4. This time, however, it was stated in the setting of a court exercising federal jurisdiction in relation to a decision under the Migration Act .


case_title: Salemi v MacKellar (No 2) [1977] HCA 26 ; (1977) 137 CLR 396


case_text: In light of what I consider to be orthodox law in this country, I do not consider that, if the argument is as I have described it, it has any reasonable prospects of success. An alternative formulation of the argument would seem to be that unless reasons are given, you cannot have procedural fairness. How this is said to ensue is by no means clear, and in any event, it again is inconsistent with decided authority: see Salemi's case above, see also Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170 at [26] .