Case: Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540
Outcome: followed
Allstate Life Insurance Co v Australia &amp; New Zealand Banking Group Limited [1994] FCA 814 at 18 (unreported, Beaumont J, 7 November 1994) Beaumont J followed Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 at 53,467 and 54,469; [1993] FCA 404 at 3-4 where Davies J said: 'In my opinion, a right to claim damages under ss. 82 and 87 of the Trade Practices Act 1974 (Cth) is, in general, a bare right of action which cannot be assigned. I am not speaking of an assignment such as may occur on the bankruptcy or death of a person or on the merger of a company into another entity. Absent such special circumstances, a right to claim under ss. 82 and 87 cannot, in my opinion, be assigned. Section 82 provides:- "(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention." The section does not allow for the award of damages in respect of a loss which was not suffered by any party to the proceedings. Both the terms of the statutory provision and the principle as enunciated in cases such as Dawson v Great Northern &amp; City Railway Co. [1905] 1 KB 260 at 270-1, Defries v Milne [1913] 1 Ch 98 and Pulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602, preclude Mrs Regan from suing for damages in respect of any loss suffered by Mr and Mrs Park. Mr and Mrs park have discontinued their claims and that is an end to them. The assignment has effect, however, insofar as it assigns to Mrs Regan all the entitlement of Mr and Mrs Park under the mortgage into which all the applicants had entered as mortgagees. Thus, if any ancillary relief under s. 87 depends upon the approval or request of the mortgagors, the remaining applicants now hold all interests in respect thereof.' The construction arrived at by the authorities, on s 82, to which I have referred, is reinforced by a consideration of the subsequently introduced amendment to s 82 in s 82(1B). That subsection specifically provides that the damages 'that the claimant may recover' are capable of being reduced by reason of the claimant's share of responsibility. It is difficult to see how the Court could award a third party that which the statute only authorises the claimant to recover. Moreover, s 82(1B) shows that it is only the person entitled to recover damages who can have the damages recoverable reduced by reason of that person's share of responsibility for the loss of damage. A stranger would be in the position identified by Hamilton LJ in Defries v Milne [1913] 1 Ch 98 at 112 (see too Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602) where he said of an attempt to assign to a plaintiff a cause of action for the tort of waste: 'The plaintiff is under no measurable liability to [the defendants] , and one essential ingredient in the plaintiff's cause of action in tort fails, and fails altogether. It seems to me, therefore, that the plaintiff has no direct right of action here because he has not been damnified.' The pleading itself asserts that the relevant representations were made to old Boston and that old Boston relied on the representations in formulating its costings thereby incurring loss or damage. The statement of claim also alleges that between November 2004 and November 2005, GE Capital provided old Boston with less than half of the agreed amount of defaulting customers on whom to effect the field agent services. During the course of argument the reference to November 2005 was amended to June 2005. Obviously, after 1 July 2005 old Boston did not purport to provide any services. For the reasons I have given above, in whatever way this claim is formulated, s 82 permits only old Boston to recover that loss or damage. Because s 82(1) also gives a right to recover loss or damage to a person who suffers it by conduct of another person that was in contravention of s 51AC , for the reasons given above, that cause of action is not capable of assignment to new Boston. It has no reasonable prospect of being successfully prosecuted by new Boston against GE Capital. New Boston argued that I should not follow the decision of the High Court in Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602-603 which denied that a right of action in tort was assignable at all. It was suggested that this was the old view of the law. New Boston argued that I should follow what what Debelle J said of it in South Australian Management Corporation v Sheahan (1995) 16 ACSR 45 at 58, namely that the decision could be explained as relating to an assignment of a claim in tort where the assignee had no genuine commercial interest. However, in Garcia v National Australia Bank Ltd [1998] HCA 48 ; (1998) 194 CLR 395 at 403 [17] Gaudron, McHugh, Gummow and Hayne JJ made it clear that the doctrine of precedent in Australia binds me to follow the decisions of the High Court unless and until that court decides that the time is right for a change in the law. I propose to do that. There is no basis to read down the considered judgment of Williams, Webb and Kitto JJ in Poulton v The Commonwealth (1953) 89 CLR at 602 that a right of action in tort is incapable of assignment at law or in equity. I am of opinion that Debelle J was wrong not to have applied this binding authority. Callinan and Heydon JJ said that there was a serious question whether the Court of Appeal had been correct in concluding that, on the issue of the assignability of the cause of action, which had not been debated before it and of which only some mention had been made before the High Court, the retailer's action for money had and received was historically a claim in debt which was readily assignable without engaging the principles of about trafficking in litigation ([2006] HCA 41 at [260]). They referred, among other things, to what Williams, Webb and Kitto JJ had said in Poulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602.