Case: Henville v Walker [2001] HCA 52 , 206 CLR 459
Outcome: followed
The quantum of such loss or damage to which the Applicants, or either of them, may be entitled pursuant to s 82 thus remains a matter to be assessed. For present purposes it is sufficient to note that that task will be " to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case ": Henville v Walker [2001] HCA 52 at [18] , [2001] HCA 52 ; 206 CLR 459 at 470 per Gleeson CJ. The measure of the relief available under s 82 is not to be confined by an analogy with damages in contract or tort or equitable remedies: Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494. The task will be to ascertain the loss suffered by the contravening conduct and to assess the amount necessary to compensate for that loss: Henville v Walker [2001] HCA 52 at [66] , [2001] HCA 52 ; 206 CLR 459 at 482 per McHugh J. Although not confined by those analogies, they will usually be of " great assistance ": [2001] HCA 52 at [130] per McHugh J. But such analogies should not distract " attention from the primary task of construing the relevant provisions of the Act ": Murphy v Overton Investments Pty Ltd [2004] HCA 3 at [44] , [2004] HCA 3 ; 216 CLR 388 at 407 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ. 123 It has not been suggested that the Applicants were " careless " in relying upon any of the representations of the Respondents. Even carelessness or negligence on the part of an applicant, it may be noted, will not deny relief -- provided the carelessness has not been such as to destroy the causal connection between the contravening conduct and the loss or damage suffered: Henville v Walker [2001] HCA 52 at [13] , [2001] HCA 52 ; 206 CLR 459 at 468 9. Gleeson CJ there observed: [13] It will commonly be the case that a person who is induced by a misleading or deceptive representation to undertake a course of action will have acted carelessly, or will have been otherwise at fault, in responding to the inducement. The purpose of the legislation is not restricted to the protection of the careful or the astute. Negligence on the part of the victim of a contravention is not a bar to an action under s 82 unless the conduct of the victim is such as to destroy the causal connection between contravention and loss or damage. ... [14] For there to be the necessary causal relationship between a contravention of s 52, and loss or damage, so as to satisfy the requirements of s 82(1), it is not essential that the contravention be the sole cause of the loss or damage. ... The present case is not a case of carelessness or negligence. In the present proceeding, the Applicants acted at all material times prudently. They retained the services of an experienced person (Mr Mellor), made their own inquiries, and carefully considered the options available. The present case is one in which representations were made by Mr Wieland for the very purpose of inducing or encouraging the purchase of his machine. Not only is there an inference available that those statements were instrumental in the execution of the contracts (cf Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 at 236 per Wilson J; Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95 at [41] , [2008] NSWCA 95 ; 66 ACSR 359 at 370), the fact is that those statements have been proven to have played a large part in the decision to acquire the SLP 1100.