Alley v Gillespie - [2017] HCATrans 257

[2017] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S190 of 2017

B e t w e e n -
PETER ALLEY
Plaintiff
and
DAVID GILLESPIE
Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 DECEMBER 2017, AT 10.15 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.E. MACK, for the plaintiff. (instructed by Maurice Blackburn Lawyers)

MR G.O’L REYNOLDS, SC: If the Court pleases, I appear for the defendant with my learned friend, Mr D.P. HUME. (instructed by Colin Biggers & Paisley Solicitors)

MR S.P. DONAGHUE, QC, Solicitor–General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friends, MR C.L. LENEHAN and MS J.D. WATSON, for the Commonwealth Attorney‑General intervening. (instructed by the Australian Government Solicitor).

Your Honours, with the Court’s permission, the parties have agreed that I will address the Court first, followed by Mr Reynolds, followed by Mr Walker.

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, could I ask you to turn immediately to the question reserved book and go to page 2. There you will see the order made by your Honour Justice Bell reserving two questions for the consideration of the Full Court under section 18 of the Judiciary Act. The Attorney‑General intervenes to make submissions only in relation to the first of those two questions, the text of which your Honours there see set out. It asks:

Can and should the High Court decide whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives –

that language declared by the Constitution, picking up both section 46 of the Constitution and section 3 of the Common Informers Act.

The Attorney submits that the answer to that question is the Court cannot so decide, the question whether it should not do so does not arise. I should say immediately in case it is not obvious that we do not, of course, contend that the Court is incapable of answering a question as to whether a person is incapable of sitting in a proceeding under the Commonwealth Electoral Act.

Obviously, the Court can answer a question of that kind in a proceeding constituted in that way. The question reserved should therefore be read as asking whether the Court can decide the identified question in this proceeding, that is, in a proceeding under the Common Informers Act and it is read in that way that we submit the answer is that the Court cannot decide the question.

While your Honours have the question reserved book, if you could turn to page 6 you will see there are some facts that were agreed between the plaintiff and the defendant and they include at paragraph…

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: [2017] HCATrans 257
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the appellant, Alley, and the respondent, Gillespie, concerning the interpretation and application of certain provisions of the *Corporations Act 2001* (Cth) and the *Australian Securities and Investments Commission Act 2001* (Cth). The core of the disagreement revolved around whether certain conduct constituted misleading or deceptive conduct within the meaning of these legislative provisions.

The central legal issues before the High Court were: (1) whether the respondent's conduct in relation to the appellant was misleading or deceptive, or likely to mislead or deceive, in contravention of s 52 of the *Trade Practices Act 1974* (Cth) (now s 18 of the Australian Consumer Law) and s 12DA of the *Australian Securities and Investments Commission Act 2001* (Cth); and (2) if so, what remedies were available to the appellant. The Court was required to determine the scope of "misleading or deceptive conduct" in the context of financial services and the appropriate approach to assessing such conduct.

The High Court's reasoning focused on the objective test for misleading or deceptive conduct, which requires considering whether the conduct, viewed as a whole, has the capacity to mislead or deceive a reasonable member of the class of persons to whom it is directed. The Court analysed the specific communications and actions of the respondent, assessing whether they created a false impression or were likely to lead to a misunderstanding on the part of the appellant. The Court affirmed that the relevant inquiry is not whether the person was actually misled, but whether the conduct had the tendency or capacity to mislead. The Court also considered the principles governing the award of damages or other relief for contraventions of these provisions.

Orders