Case: Warner and Another v Elders Rural Finance Limited and Others (1993) 41 FCR 399
Outcome: discussed
Another Full Court judgment followed shortly, Warner and Another v Elders Rural Finance Limited and Others (1993) 41 FCR 399 in which Hill J said at 405: 'To that extent, therefore, I would agree with Gummow J in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, that the search for a "duty to disclose" might be to digress from the application of the terms of s 52. Certainly I agree, with respect to his Honour, that neither Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 nor Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 ultimately depended upon the existence of a duty and my analysis in Winterton (supra) in fact points to the fact that Henjo (supra), in which the applicant was successful, was what I have labelled "a half-truth case". I would not understand what his Honour said in Demagogue (supra), however, to mean that it was irrelevant that a duty to speak arose, for so to say would be to disapprove the language of Bowen CJ in Rhone-Poulenc and of Lockhart J in Henjo (at 557), both of which passages have been often cited with approval, including by Full Courts of this court: see, for example, Kabwand Pty Ltd v National Australia Bank Ltd [1989] ATPR 50,367. The test adopted by Black CJ, in separate comments, and by Gummow J, with whom Cooper J agreed, in Demagogue , of the need to find a reasonable expectation that silence would be broken before failure to speak is misleading or deceptive, differs little, if at all, from the test I suggested in Winterton when I spoke of "entitlement to expect" or "entitlement to infer". I would not have entered into further discussion of the matter but for the "Editorial Comment" with which Demagogue was published in the CCH report of the judgment (15 ATPR 40,844). That comment suggested that there was some conflict between the judgment of Gummow J in Demagogue and my discussion in Winterton . With respect, I think that the learned authors place too great an emphasis upon the comments made by Gummow J, with respect to the existence of a "duty to disclose". If one accepts the formulation of "reasonable expectation" in Demagogue as a test to be applied, either universally, or, at least, in most cases, the existence of a duty to disclose will still have significance'. 133 The Court of Appeal of Western Australia in Warwick Entertainment Centre Pty Ltd and Another v Alpine Holdings Pty Ltd and Others (2005) 224 ALR 134 at 145, at [45], (per Steytler P with whom McClure and Pullin JJA agreed) said: 'In Demagogue , the court held that conduct may be misleading or deceptive under s 52 if there is a reasonable expectation of disclosure of information and that information is not disclosed: see also Hardy v Your Tabs Pty Ltd (in liq) [2000] NSWCA 150 '. Steytler P then said (at [46]): 'The evidence established, and the trial judge found, that the representations to which I have referred were important to the respondents. That must have been obvious to the appellants, who must consequently have known that the respondents would rely upon them. In these circumstances it was reasonable for the respondents to expect that, if the situation altered [which it did] , they would be told of this [which they were not]' .