Case: Hughes Aircraft Systems International v AirServices Australia (1977) 76 FCR 151
Outcome: cited
By way of background to what I have to say I would observe the following. It is trite to say the question whether conduct in a given instance is of the s 52/s 995 proscribed character is to be determined having regard to all the relevant circumstances. Silence can render conduct misleading or deceptive if in all the circumstance the party complaining of the non-disclosure was reasonably entitled to expect that if the matters in question existed, had occurred, or were contemplated, they would be disclosed: see Hughes Aircraft Systems International v AirServices Australia (1977) 76 FCR 151 at 198-199 and the cases there discussed. 202 The seeming background relied upon to found a "duty to disclose" in this matter (at least for the purposes of the misleading or deceptive conduct claims) was Parker's claimed trust in Bell as a fellow accountant who was the accountant for Tiltform Licensing and whom he dealt with as such. 203 The evidence concerning Bell in this regard is slight. In Sladojevic's original letter to Murabito agreeing to the 2 June 2000 meeting Bell (who was to be in attendance) was described as "an integral part of our organisation and responsible for the strategic planning of our organisation". 357 In the Rawley matter I indicated that the question whether conduct in a given instance is proscribed by s 52/s995 is to be determined having regard to all the relevant circumstances. Silence can render conduct misleading or deceptive if in all the circumstance the party complaining of the non-disclosure was reasonably entitled to expect that if the matters in question existed, had occurred, or were contemplated, they would be disclosed: see Hughes Aircraft Systems International at 198-199. 358 Seemingly the "duty to disclose" in Chehade's case was founded in his "trust in Robert and Geoff". I have earlier commented on that trust. I would simply reiterate that to have trust in another person for whatever reason (be it reasonable or fanciful) does not as of course result in the imposition of an obligation on that other to act in accordance with the dictates of that trust. If such trust is to have any significance at all in a particular matter (I exclude from this relationships of undue influence), there must ordinarily be reason in the relationship of the parties either in that matter or arising from past or present dealings that properly could give rise in the circumstances to the expectation that the disclosure of the information in question would be made if it was known to the trusted party. 359 The short answer to the Chehade case is that neither Bell nor Sladojevic on my findings so conducted themselves in relation to Chehade's investment decision that they could properly be expected to disclose information to Chehade. As I will indicate below, I am satisfied Chehade did it his own way. He was the author of his own harm. His trust may have been in Bell and Chehade making the investment a profitable one given their commitment to the Tiltform enterprise and its success. That was not a trust that could author a liability of the type claimed here.