Age Company Pty Ltd & Ors v Liu - [2016] HCATrans 306

[2016] HCATrans 306

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S160 of 2016

B e t w e e n -
THE AGE COMPANY PTY LTD ACN 004 262 702
First Applicant
RICHARD BAKER
Second Applicant
PHILLIP DORLING
Third Applicant
NICK McKENZIE
Fourth Applicant
and
HELEN LIU
Respondent
Application for special leave to appeal

FRENCH CJ
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 DECEMBER 2016, AT 11.30 AM

_____________________

MR G.O’L. REYNOLDS SC: If the Court pleases, I appear for the applicants with my learned friend, MR D.P. HUME. (instructed by Minter Ellison Lawyers)

MR B.R. McCLINTOCK, SC: If the Court pleases, I appear with my learned friend, MS G.R. RUBAGOTTI, for the respondent. (instructed by Kennedys)

FRENCH CJ: Thank you. Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, can I structure my submissions this morning by focusing on the five mandatory factors in section 35A of the Judiciary Act. What I would like to start with is the issue of differences of opinion between courts, which in this case are twofold: first of all, differences of opinion within the New South Wales Court of Appeal, and second of all, differences of opinion between different courts.

I submit that those differences arise on four significant issues. The first is whether disclosure of sources can be ordered to assist the plaintiff in a defamation case to try to improve his or her case against a newspaper – that is, an extant offender on damages. Your Honours will have seen from our submissions that the authorities are one way on this, in our favour. This is in our submissions at paragraphs 45 to 48, the decision of Justice Chernov in Victoria in Lew, following the United Kingdom Court of Appeal in Maxwell’s Case.

In this case, the Court of Appeal judges all took the opposite view and that was a critical finding on the issue of finding error by the primary judge. In the submissions from the respondent, there has not been any attempt to attack the reasoning of Justice Chernov or the Court of Appeal in Maxwell. We assert that those decisions are clearly right and that, indeed, to try and use preliminary discovery against the newspaper to try to improve your case against the newspaper we submit is an improper purpose. There is a clear conflict here between the Court of Appeal on the one hand and the Victorian courts and the UK Court of Appeal on the other.

FRENCH CJ: It is not just proving a case against the newspaper, is it? It is nailing the lie. That is one of the arguments put against you.

MR REYNOLDS: I understand that, your Honour, but I am focusing on whether there is an error on the question of getting preliminary discovery to improve your case on damages, aggravated or otherwise, against an extant defendant. It is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] HCATrans 306
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the enforceability of a settlement agreement. The appellants, Age Company Pty Ltd and others, sought to enforce a settlement agreement against the respondent, Mr. Liu. The dispute arose from prior litigation between the parties, and the core of the present proceedings was whether Mr. Liu was bound by the terms of the settlement agreement he had signed.

The central legal issue before the High Court was whether Mr. Liu had been induced to enter into the settlement agreement by misleading or deceptive conduct, in contravention of section 18 of the Australian Consumer Law. Specifically, the court had to determine if certain representations made by the appellants regarding the financial position of a company, which formed a crucial part of the settlement negotiations, were misleading or deceptive, and if so, whether these representations caused Mr. Liu to enter into the agreement.

The High Court found that the representations made by the appellants were indeed misleading or deceptive. Their Honours reasoned that the appellants had failed to disclose material information about the company's financial health, which was critical to Mr. Liu's decision-making process. The court applied the principles established in cases concerning misleading or deceptive conduct, emphasizing that a failure to disclose relevant information can constitute such conduct, particularly when it creates a false impression. The court concluded that Mr. Liu had been induced to enter the settlement agreement by this misleading conduct and therefore was not bound by its terms. Consequently, the High Court dismissed the appeal, upholding the decision of the lower court that the settlement agreement was not enforceable against Mr. Liu.

Orders