Case: Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494
Outcome: referred to
Telstra submitted that the detriment asserted by MWO cannot amount to "damage" sufficient to found a cause of action pursuant to ss 82 or 87 of the TPA. That is, according to Telstra, the pleading failed to establish a causal connection between the alleged damage and the conduct of Telstra alleged in paragraph 20 of the statement of claim. In support of this submission, Telstra referred to numerous authorities, including Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494 (" Marks ") at 503-4, Wardley Australia Ltd v Western Australia (1992) 175 CR 514 (" Wardley ") at 525, Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 at 14; HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640; Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 501 [130] , and I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at 121 [31] . Telstra submitted that MWO failed to allege the "better" position that it would have been in "but for" its reliance on the representation, or otherwise to seek to connect the damage alleged in paragraph 29 of its statement of claim to any such "better" position. Telstra submitted that the authorities establish that MWO had thus failed to meet a fundamental pleading requirement if it is to make out its cause of action under ss 52 and 82 or 87 of the TPA in respect of the no cap representation. 19 The authorities establish that the relief that ss 82 or 87 of the TPA may afford is not confined to the remedies in tort, contract or equity: see, eg, Marks at 503-4. Further, the causative element in a cause of action under ss 52 and 82 (or 87) of the TPA is to be "understood as taking up the common law practical or common-sense concept of causation": Wardley at 525. Causation is a question of fact. As the Court said in Murphy , at 403, the difference between price and value is not the only kind of damage for which compensation can be given in such an action as this. It is necessary to identify the detriment which is said to be the loss or damage which has occurred or, when considering the application of s 87, has occurred or is likely to occur: see Murphy at 408. In Wardley , as the Murphy Court noted, "the mere entry into obligations which might, but need not, have had detrimental consequences in the future was held not to have occasioned loss or damage to the party making the contract": see Murphy at 408. The Court went on to hold, at 409-10, that in the Murphys' case: " [T] he finding that [they] had been induced to enter the lease by a statement of estimated outgoings that was misleading, because it did not take account of all amounts that could properly be charged as outgoings, meant that [they] undertook an obligation which may, but need not, have proved to be larger or more costly than they had been led to believe. There may be cases in which a person misled in this way suffers loss upon entering the agreement. ...But that was not this case. ... What [they] did not know was that the estimate of outgoings they were given did not provide for all the outgoings that were then being incurred. Here, therefore, [they] suffered no loss as a result of undertaking the obligations they did unless and until the contingency which the misrepresentation hid ... was first realised. ... It was only from the time when it in fact decided to depart from the 1992 position and charge for the wider categories that the adverse risk eventuated. When it did, but only then, [the Murphys] suffered loss and damage."