Case: Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR 46-179 at 54,432
Outcome: considered
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 &amp; 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 &amp; Ors v Poseidon Limited &amp; 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: &#8226; 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 &#8226; 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: &#8226; one of the persons he contacted had a property half way between Bundaberg and Tiaro; &#8226; one of the persons was a Central Burnett grower; &#8226; 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: &#8226; 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. &#8226; 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.