Case: Munnings v Australian Government Solicitor [1994] HCA 12 ; (1994) 120 ALR 586
Outcome: cited
In so concluding, her Honour relied upon the observations of Mason CJ and Brennan and Toohey JJ in Munnings v Australian Government Solicitor [1994] HCA 12 ; (1994) 120 ALR 586 at 589. 23 Her Honour then turned to the dispositive orders that ought to be made. Her Honour relied upon s 31A of the Act and Order 20, rule 2 of the Federal Court Rules and concluded that the application of the applicant filed on 7 April 2006 ought to be dismissed in accordance with either s 31A of the Act or, alternatively, on the footing that the requirements of Order 20, rule 2 of the Federal Court Rules were satisfied. Her Honour made an order that the application be dismissed and ordered the applicant to pay the respondents' costs of the proceeding. In relying upon s 31A of the Act, her Honour 'gave judgment' (s 31A(2)) for the respondents. In concluding that Order 20, rule 2 of the Federal Court Rules was satisfied, her Honour concluded that the proceeding ought to be dismissed generally on the footing, having regard to other conclusions, that no reasonable cause of action is disclosed by the statement of claim and that the applicant so misconceived the cause of action available to him that the proceeding is an abuse of the process of the court. 24 Mr Rogers says the arguable error on the part of her Honour is this. The respondents conceded in argument that a contravention of the TPA may give rise to a claim for personal injury. Her Honour observed at paragraph 120 of the judgment that: 'It is arguable that the applicant was coerced.' Having regard to those two matters, her Honour was in error it is said, in concluding that the statement of claim does not disclose any connection or nexus between conduct on the part of the respondents and a claim for personal injury on the part of the applicant. This error is described by Mr Rogers as the 'main ground of my application for a notice of appeal'. Mr Rogers says that it is quite clear from his pleading that allegations of coercion on the part of the respondents towards Mr Rogers occurred, that such conduct occurred only by reason of the provision of services by relevant respondents to Mr Rogers and that coercive conduct in contravention of s 60 gave rise to the present claim for damages or compensation for personal injury or the wrong done to him. Mr Rogers says that the coercion is clear or at least clearly arguable; it occurred in the context of a contravention of s 60 of the Act; and, the contravening conduct gave rise to the injury. 25 Mr Rogers says that the only arguable error on the part of her Honour is in relation to the matters said to be in contravention of s 60 of the TPA. 26 The second ground of appeal identified by Mr Rogers is that her Honour having found arguable coercion of the applicant, the offending parts of the statement of claim ought to have been dismissed leaving those paragraphs reliant upon s 60 extant. Mr Rogers says that 'this little precious gem' was 'good and it shouldn't have been thrown out and that's why I'm here today' . Further, Mr Rogers says that having struck out the statement of claim, her Honour ought not to have dismissed the application because she ought not to have found that there was no prospect of success in the proceeding having identified an arguable case of coercion. 27 As to the concession on the part of the respondents, the respondents say that they simply recognise the proposition of law that a claim for personal injury might properly arise out of a contravention of a provision of the TPA but no such claim is properly raised on the statement of claim in this case. 28 As to the question of whether a claim for personal injury based upon a contravention of s 60 of the TPA might give rise to a claim within s 116(2)(g) of the Bankruptcy Act , her Honour said this at [32]: ' Section 60 of the Trade Practices Act specifically applies to conduct in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer, and therefore is founded in an existing (or possible) contractual relationship between the corporation and the consumer. In the event that the consumer becomes bankrupt, it follows that any legal action arising from the contractual relationship between the consumer and the corporation vests in the trustee in bankruptcy .' [emphasis added] 29 Justice Collier pronounced judgment on 7 December 2006. The method of pronouncement adopted was to publish the dispositive orders made by her Honour that day and to post the reasons for judgment to the parties. The date of 'pronouncement' of a judgment must necessarily be informed by the method selected by the judge to effect communication of the dispositive orders and particularly the reasons for judgment to the parties. Mr Rogers contends that notwithstanding the pronouncement of the dispositive orders on 7 December 2006 at 4.30pm by means of a telephone conference, the reasons were not received until 11 December 2006 and then by reason of the changes, the final reasons were received on 14 December 2006. It seems to me that if the judgment of her Honour is an interlocutory judgment, an application for leave to appeal ought to have been made within seven days of 14 December 2006 or, alternatively, within 7 days of 11 December 2006. 30 The application by Mr Rogers was filed on 15 December 2006 and is thus within time. If, however, the publication of the dispositive orders by means of a telephone conference and the selection of a method of communication of the reasons to the parties by post constitutes a 'pronouncement' of the judgment on 7 December 2006, the applicant is out of time by one day. However, having regard to the chronology of events, I am satisfied that the applicant has sufficiently explained any failure to file an application for leave to appeal from the orders of her Honour within the time required by the rules on the assumption that the operative date of pronouncement is 7 December 2006. 31 The more fundamental question is whether the applicant has established an arguable error on the part of her Honour.