Airport Information Systems Ltd v BHP Information Technology Pty Ltd

[1999] FCA 93

FEDERAL COURT OF AUSTRALIA

Airport Information Systems Ltd v BHP Information Technology Pty Ltd
[1999] FCA 93

AIRPORT INFORMATION SYSTEMS LTD v BHP INFORMATION
TECHNOLOGY PTY LTD
NO. VG 226 of 1998

HEEREY J
10 FEBRUARY 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 226 OF 1998

BETWEEN:	AIRPORT INFORMATION SYSTEMS LTD Applicant
AND:	BHP INFORMATION TECHNOLOGY PTY LTD (ACN 006 476 213) Respondent

JUDGE:	HEEREY J
DATE:	10 FEBRUARY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. I will deal with this part of the respondent’s motion on the assumption that the proposed amended statement of claim handed up by counsel today is the subject of leave.  I think the particulars to par 27 certainly seem to say nothing about the allegation in par 26(a), although they do say something, and perhaps arguably enough, about the allegation in par 26(b).

2. But more fundamentally, it seems to me, as discussed in argument with counsel, that the pleading in par 26 is misconceived.  It alleges matters internal to the respondent.  In the circumstances of this case, if there were a repudiation of the agreement it would have to be something that was made known, either expressly or by conduct, by the respondent to the applicant.  If there were an evincing of an intention not to be bound, or a breach going to the root of the contract, it would not matter, for the purposes of legal effect, whether that conduct was motivated by mala fides or otherwise.  Similarly, the allegation in par 26(b), that there was an alteration of documents to support a false case that there had never been an agreement, really seems to me a matter of evidence going to the issue as to whether or not there was a concluded agreement.  If the authenticity of documents tendered in relation to that issue are challenged, that is simply a matter for resolution as an issue of disputed fact.

3. I think to maintain these paragraphs in the statement of claim would confuse and delay the trial of the action, and would set up false issues.

4. I think the corresponding cause of action under s 52 of the Trade Practices Act is subject to the same criticism.  In the circumstances of this case at least, I do not see how conduct, whether express statements or behaviour or inaction, can be misleading and/or deceptive, unless it takes the form of a communication to the applicant by the respondent so as to induce the applicant to act to its detriment.  Reference might be made to the recent decision of the High Court in Marks v GIO Australia Holdings Ltd (1999) 73 ALJR 12. I should add that my conclusion is not altered by counsel’s reference to par 3.3 of the defence, but plainly the terms of what was the agreement between the parties is going to be a major issue in this case, and as I see it, the defence simply pleads what is the respondent’s version.

5. So I will strike out paragraphs 26 to 29.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             10 February 1999

Counsel for the Applicant:	Mr P Bick QC
Solicitor for the Applicant:	Slater & Gordon
Counsel for the Respondent:	Mr C Maxwell QC
Solicitor for the Respondent:	Holding Redlich
Date of Hearing:	10 February 1999
Date of Judgment:	10 February 1999