Re: RONALD WILLIAM LEO; EILEEN MARY LEO; NORMA GREEN and NORMA GREEN and TREVO JAMES GREEN as executors of the estate of Raymond Oliver Green, deceased And: BRAMBLES HOLDINGS LIMITED (1982) 65 FLR 310 No. QLD G4 of 1979 Trade Practices Act
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION Fitzgerald J.(1)
CATCHWORDS
Trade Practices Act - Consumer Protection - Misleading and deceptive conduct - carrier stating wrong height of vehicle in Application for Permit under State Traffic Regulations - collision of vehicle with overhead bridge - whether loss casually connected with mis-statement - whether matters would have taken a different course in the absence of the mis-statement.
Trade Practices Act - Consumer Protection - Misleading and deceptive conduct - whether the non-disclosure of an inaccurate statement can constitute misleading conduct.
Constitution Law - repugnancy between State and Commonwealth legislation - State Act purporting to limit damages recoverable under Commonwealth legislation - implied contractual term fixing maximum damages.
Damages - Quantum of damages - loss of taxation benefit in respect of investment allowance.
Trade Practices - Consumer protection - Misleading and deceptive conduct - Agreement for carriage of equipment - Loaded vehicle height misstated in permit application and permit - Damage to equipment in transit - Loss or damage - Trade Practices Act 1974 (Cth), ss. 4(2), 53(1), 82.
HEADNOTE
The respondent agreed to transport earthmoving equipment for the applicants and made application to the police for a permit to do so. The respondent's application stated a route which included passage under an overbridge but misstated the loaded height of the equipment on the respondent's vehicle. A permit was issued in the terms of and in consequence of the statements in the application. The first applicant observed the description of the route in the permit. In the course of transit the equipment on the respondent's vehicle struck the overbridge and was damaged. The applicants asserted that the respondent had, in trade or commerce, engaged in conduct that was misleading or deceptive or was likely to mislead or deceive, contrary to s. 52(1) of the Trade Practices Act 1974 and sought to recover the loss and damage pursuant to s. 82.
Held, that the first applicant did not relate the permit, or anything in it, to the suitability of the route relative to the loaded height of the respondent's vehicle, nor would he have done so had his attention been drawn to the inaccuracy.
HEARING
Brisbane, 1982, July 26, 28-29; August 6. #DATE 6:8:1982
APPLICATION.
The facts appear in the judgment.
D.K. Derrington Q.C. and D.G. Russell, for the applicants.
D.P. Drummond Q.C. and J.H. Byrne, for the respondent.
Cur. adv. vult.
Solicitors for the applicants: W.R. Scott & Scott.
Solicitors for the respondent: Clayton & Co.
H.W. FRASER
ORDER
1. The Application…
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.
The case of Ansell v Wells involved a dispute concerning the liability of a carrier for a collision between a vehicle and an overhead bridge. The applicant, Ansell, alleged that the carrier, Wells, provided incorrect information regarding the height of the vehicle in an application for a permit under state traffic regulations. This mis-statement, according to Ansell, led to the collision. Ansell sought damages for the losses incurred as a result of the collision. The matter was heard and determined by the Federal Court of Australia.
The primary legal issue before the court was whether the loss suffered by Ansell was causally connected to the mis-statement made by Wells. Additionally, the court needed to decide whether the events would have taken a different course had the correct height of the vehicle been stated. These issues necessitated a detailed examination of the chain of causation and the foreseeability of the damage as a result of the mis-statement.
In its decision, the court held that the loss suffered by Ansell was not directly caused by the mis-statement. The court found that the collision would have occurred regardless of the height of the vehicle, as the bridge was too low to allow passage. The court also determined that the events were not causally connected in a manner that would impose liability on Wells. Consequently, the court dismissed Ansell’s application and ordered that Ansell pay Wells' costs of and incidental to the application, including any reserved costs.
The court’s decision effectively ruled out the possibility of holding Wells liable for the damages incurred by Ansell due to the collision with the bridge. The dismissal of the application and the imposition of costs on Ansell underscored the importance of establishing a direct causal link between the mis-statement and the loss in cases of alleged misleading and deceptive conduct under the Trade Practices Act.
Orders
Orders of the court
1. The Application is dismissed.
2. The Applicants pay the Respondent's costs of and incidental to the Application, including reserved costs if any. Application dismissed.
Applicants to pay respondent's costs including reserved costs.