mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: City of Botany Council v Jazabas Pty Limited [2001] NSWCA 94
Outcome: cited
Considering later events which did occur is of some relevance although clearly not conclusive as to whether the respondents had reasonable grounds to make the future representations. Nonetheless while examining evidence of later events may throw light upon the overall probabilities it remains vital to guard against hindsight illusion (cf Mason P in City of Botany Council v Jazabas Pty Limited [2001] NSWCA 94 at [83] ). There is no necessary connection between the reasonable grounds and the subsequent circumstances which resulted in the predicted state of affairs not occurring ( Sykes 88 FCR 511 at 513 per Heerey J). 415 There is no doubt that historical performance can be a factor relevant to the reasonableness of a forecast of future performance (see, for example, ACCC v Top Snack Foods Pty Ltd [1999] FCA 752 , ACCC v Telstra Corporation Ltd [2007] 244 ALR 470). However in determining whether a person had reasonable grounds for expressing an opinion or making a prediction as to a future matter, is necessary to judge the matter as at the date of the representation (see Lyndel Nominees Pty Ltd v Mobil Oil Australia Ltd (1997) 37 IPR 599 at 625, Sykes 88 FCR 511 at 513, City of Botany Council [2001] NSWCA 94 at [83] ). Historical performance is one factor, although it is an important factor. In paras 19(e) and (f) the applicants claim that the respondents had in their possession Packing Shed data computer records which disclosed the matters referred to in paras 19(a), (b) and (c). I have already considered the claims in paras 19(a), (b) and (c) and found that the respondents had reason to distrust the information in the Packing Shed records to which the applicants refer. Further, I do not consider that the applicants have substantiated the "true position" with respect to, inter alia , the Packing Shed records as claimed by the applicants in paras 19(d)-(g). I shall return to this issue later in my judgment. 461 As I noted earlier in this judgment, the packout rate realised by the first respondent for lemons in the 2005 Crop Year (81.2%) exceeded the forecast packout rate. I note this fact as contributing to the overall probability that the first respondent made its representation as to the performance of the orchards in 2005 on reasonable grounds (cf Sykes 88 FCR 511 , City of Botany Bay Council [2001] NSWCA 94).
Case: Como Investments Pty Ltd (in liq) v Yenald Nominees Pty Ltd (1997) 19 ATPR 41 550
Outcome: cited
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: Elitegold Pty Limited v CM Holdings Pty Ltd, Australia Fair Shopping Centres Pty Limited and CM Developments (Qld) Pty Ltd [1995] FCA 1336
Outcome: cited
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: Elliot v Ivey [1998] NSWSC 116
Outcome: considered
To the extent that Mr Frick relied on the material in the Brief to Crop Expert in giving his evidence, his evidence is relevant and unobjectionable. During cross-examination much was made of the fact that Mr Frick relied upon records provided to him without ascertaining by inspection, reference to Mr Burns, or otherwise their accuracy, or whether they were a sufficient basis upon which he might give the opinions contained in his report. However: &#8226; I am satisfied by Mr Frick's evidence that in producing his report, he preferred to conduct his own investigations and utilise his own information and experience (TS 1332 ll 2-11) rather than consult with Mr Burns. I am satisfied that Mr Frick's reasons for refraining from consulting Mr Burns in relation to the material in the Brief to Crop Expert were reasonable, namely that Mr Frick did not wish to be influenced by Mr Burns, whose position had been to maximise yield, or have his thought processes influenced by anyone involved in this case (TS 1330 ll 6-7, 1332 ll 19-21). I note that in any event the material with which Mr Frick was briefed included the farm managers' reports, and that he had reference to those reports prepared by Mr Burns (TS 1330 ll 20-21) as well as his own knowledge of the orchards from his work for previous owners of the relevant properties (TS 1335 l 20). &#8226; I am not persuaded that Mr Frick's approach in basing his expert report on material provided by the respondents (which, as I have noted, is in evidence) impacted adversely on the probative value of his report or otherwise renders his opinion irrelevant. Indeed as was pointed out by Sperling J in Elliot v Ivey [1998] NSWSC 116: The capacity of a professional person to give an opinion based on an exclusionary set of assumptions is implicit in this process. The implication is reasonable because professional men and women are accustomed to forming opinions on assumed facts in the course of their ordinary professional work. It is part of their stock in trade, developed by training and by experience in the practice of their profession. Thus it is that an expert witness has a much more limited role than that of a solicitor acting for a client. In particular, expert witnesses are not bound to use all information they might previously have obtained. On the contrary, expert witnesses are bound to confine their attention to specified factual assumptions which are made known to the court. The opinion is then only as good as the assumptions are established by evidence to be correct. (cf comments of Spiegelman CJ in ASIC v Rich [2005] NSWCA 152 ; (2005) 218 ALR 764 at [171] and discussion in I Freckelton &amp; H Selby Expert Evidence (3rd ed) Lawbook Co 2005 p 629)
Case: English Exporters (London) Ltd v Eldonwall Ltd (1973) 1 Ch 415
Outcome: cited
The general rule that hearsay evidence is not admissible, as recognised by s 59 Evidence Act , is relaxed in relation to expert opinions. Traditionally if expert witnesses relied on the existence or non-existence of some fact which was basic to the question on which they were asked their opinion, that fact needed to be proved by admissible evidence (JD Heydon Cross on Evidence (subscription service vol 1) Butterworths para 33825). However this so-called "basis" rule was extended at common law to allow knowledge of the expert derived from general experience to legitimately contribute to the opinion arrived at in the expert report. This knowledge derived from general experience could at common law be contrasted with specific information sought by an expert from third parties for comparative purposes as a basis for his or her opinion such information would likely be hearsay unless it were disclosed and admitted, and the resultant opinion therefore inadmissible ( English Exporters (London) Ltd v Eldonwall Ltd (1973) 1 Ch 415 at 421, Arnotts Ltd 24 FCR 313 at 350-351 and ASIC v Rich [2005] NSWCA 152 ; 218 ALR 764 at 800). 347 However the information Mr Frick obtained from the four industry sources he did not identify does not, in my view, fall within the definition of his "entire body of experience which is not articulated and, is indeed so fundamental to his professionalism, that it is not able to be articulated". The information from these sources was not, for example, information he had acquired from his practice which contributed to his specialist knowledge. This was information he specifically sought with a view to being in a position to give an expert opinion on the yield and packout forecasts in question. Further, not only is the resultant information from sources known only to Mr Frick, but the actual specific information (for example, data referable to packout rates on specific properties) is known only to Mr Frick and is not capable of being tested. In English Exporters (London) Ltd v Eldonwall Ltd (1973) 1 Ch 415 at 421 Megarry J said as follows: It is one thing to say "From my general experience of recent transactions comparable with this one, I think the proper rent should be [sterling]x": it is another thing to say "Because I have been told by someone else that the premises next door have an area of x square feet and were recently let on such-and-such terms of [sterling]y a year, I say the rent of these premises should be [sterling]z a year".
Case: Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171
Outcome: cited
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 &amp; 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: Famel Pty Ltd v Burswood Management Ltd (1989) ATPR 40-962
Outcome: cited
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 &amp; 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: Fraser v NRMA Holdings Ltd (1995) 55 FCR 452
Outcome: cited
Silence may be relied upon in order to show a breach of s 52 when the circumstances give rise to an obligation to disclose relevant facts ( Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 557 and see the useful discussion in Miller's Annotated Trade Practices Act (29th ed) 1.52.53). If the circumstances do give rise to such an obligation, the next question is whether the relevant silence constituted conduct which was misleading or deceptive or likely to mislead or deceive ( Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 489, 504, 508). The duty to disclose is not confined to cases where there are particular relationships, such as trustee and beneficiary or solicitor and client ( Henjo Investments Pty Ltd [1988] FCA 40 ; 39 FCR 546 at 557). However the applicant bears the onus of establishing how or in what manner that which was left unsaid had the potential to mislead or deceive. To have that potential, omissions in communicating information must be relevant to the topic about which it is said a respondent's conduct is likely to mislead or deceive and material in the circumstances ( Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 467-468). 238 However in relation to the issue of the Ellendale fruit crop on the land being held on the trees past their pick date, I am not persuaded that the first respondent owed any such obligation. No evidence was given by Mr Tracy as to his expectations in relation to the Ellendales. Nor has it been shown that the fact of late picking of fruit, in the context of operating orchards, was information which required disclosure. Further, even assuming that the first respondent was silent in relation to this issue, the applicants have not shown how such conduct lead the applicants into error within the meaning of s 52 so as to constitute conduct of a misleading or deceptive nature ( Taco Bell 42 ALR 177). For example it has not been demonstrated that: &#8226; there was any expectation on the part of the applicants that the Ellendales would be picked at any particular time; or &#8226; 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 &#8226; even if picking was delayed, the applicants would suffer detriment ( Winterton Constructions Pty Ltd [1992] FCA 582 ; 39 FCR 97 at 114); or &#8226; 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: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688
Outcome: cited
Although s 51A does not prescribe a rate of interest, the usual practice in the Federal Court has been to adopt the rates of interest applied in the Supreme Court of the State in which the application is commenced unless there is evidence that the rates are penal or not commercial: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 at [7] , Gordon v Commonwealth [2008] FCA 603. The current rate of interest prescribed under s 47 Supreme Court Act 1995 (Qld) is 10% per annum. No submissions were made by the parties as to an appropriate rate of interest. I consider that the rate of interest of 10% per annum under the Supreme Court Act should be applied.
Case: Gordon v Commonwealth [2008] FCA 603
Outcome: cited
Although s 51A does not prescribe a rate of interest, the usual practice in the Federal Court has been to adopt the rates of interest applied in the Supreme Court of the State in which the application is commenced unless there is evidence that the rates are penal or not commercial: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 at [7] , Gordon v Commonwealth [2008] FCA 603. The current rate of interest prescribed under s 47 Supreme Court Act 1995 (Qld) is 10% per annum. No submissions were made by the parties as to an appropriate rate of interest. I consider that the rate of interest of 10% per annum under the Supreme Court Act should be applied.
Case: Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215)
Outcome: cited
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: Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40 ; (1988) 39 FCR 546
Outcome: cited
Silence may be relied upon in order to show a breach of s 52 when the circumstances give rise to an obligation to disclose relevant facts ( Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 557 and see the useful discussion in Miller's Annotated Trade Practices Act (29th ed) 1.52.53). If the circumstances do give rise to such an obligation, the next question is whether the relevant silence constituted conduct which was misleading or deceptive or likely to mislead or deceive ( Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 489, 504, 508). The duty to disclose is not confined to cases where there are particular relationships, such as trustee and beneficiary or solicitor and client ( Henjo Investments Pty Ltd [1988] FCA 40 ; 39 FCR 546 at 557). However the applicant bears the onus of establishing how or in what manner that which was left unsaid had the potential to mislead or deceive. To have that potential, omissions in communicating information must be relevant to the topic about which it is said a respondent's conduct is likely to mislead or deceive and material in the circumstances ( Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 467-468). 602 In any event, while Mr Perry SC in cross-examination of Mr Bailey made much of the fact that Mr Bailey's report replicated the historical production figures found in the 1 June 2004 Valuation Report, this replication was in no way directed by the respondents. The fact of duplication of the material was, if anything, an issue between Mr Tracy and Mr Bailey. Mr Tracy organised his own valuation report for his own purposes, by a valuer whose valuation of the relevant properties was, in the end result, very different from that of Mr Neubecker and indeed reflected the price which Mr Tracy had offered to pay. Notwithstanding the fact that the historical production data in the two reports was substantially identical, in my view this does not mean that, in the chain of causation, any original influence on the applicants exerted by the 1 June 2004 Valuation Report in relation to this data remained (contrast, for example, Henjo Investments Pty Ltd (No 1) [1988] FCA 40 ; 39 FCR 546). Indeed as the evidence also demonstrates, Mr Tracy clearly took into account Mr Bailey's report in his decision to purchase the relevant properties (Tracy statement sworn 17 November 2006 at [77], [78]). 603 In para 20B Further Amended Statement of Claim the applicants pleaded as follows: Each of the Second and Third Respondents is a person who: a) has aided, abetted, counselled or procured; or b) has been knowingly concerned and/or a party to the contravention by the First Respondent of section 51A and 52 of the Trade Practices Act 1974 as alleged in paragraph 20A. 604 There is no case against either Mr Strahley or Mr Breed in relation to s 53A.
Case: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459
Outcome: cited
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: HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414
Outcome: cited
This "considered industry potential" to which Mr Frick refers could be based either on his own specialist knowledge, or more likely in this context, on information provided by unidentified industry sources. Even where observations in Mr Frick's expert report appear to be derived from his own knowledge (for example, in relation to packout rates his observations as to factors which can result in significant variations in crop performance at harvest (Frick expert report p 3) and his general comments concerning climatic conditions affecting packout rates as between coastal citrus and Central Burnett citrus (Frick expert report p 3)) it is not possible to be sure of the source of the opinion. In my view the manner in which Mr Frick's opinion as to packout rates was expressed in his report does not answer the question posed by Gleeson CJ in HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 at 427, namely whether the opinion was wholly or substantially based on specialised knowledge based on training, study or experience.
Case: Hill v Tooth &amp; Co Ltd (1998) ATPR 41-649
Outcome: considered
In Hill v Tooth &amp; 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 &amp; 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: Incorporated v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1994) 51 FCR 243
Outcome: cited
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.