MOORE, GILMOUR AND FLICK JJ 31 MARCH 2009 SYDNEY (HEARD IN MELBOURNE)
IN THE FEDERAL COURT OF AUSTRALIA
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.
Continue reading Apache Northwest Pty Ltd v Newcrest Mining Ltd
The case of Apache Northwest Pty Ltd v Newcrest Mining Ltd involved a dispute between the two companies, with Newcrest pursuing claims for damages under a contractual agreement and under the Trade Practices Act 1974 (Cth). The primary focus in this summary is on the statutory claim for damages under s 82 of the Act, which was predicated on alleged misleading or deceptive conduct by Apache. The court had to determine whether Newcrest had provided sufficient evidence to support its claim of financial loss as a result of its reliance on Apache's representations.
The court examined the necessity for Newcrest to provide some evidence of loss or damage arising from the alleged misleading statements to establish a prima facie case for preliminary discovery. It was noted that while a full prima facie case did not have to be established, there must be some evidence concerning the loss. The court scrutinised the evidence provided by Newcrest, finding it lacking in specificity and detail. The primary judge's findings were upheld, as Newcrest had not provided concrete evidence of the financial loss it claimed to have suffered. Instead, the evidence provided was speculative and conditional, and did not sufficiently demonstrate the causal link between the alleged misleading conduct and the financial loss.
In its reasoning, the court concluded that the application for preliminary discovery was not warranted due to the absence of substantive evidence of loss. The court also considered the evidence provided in relation to the contractual claim, which did not offer a clear basis for the alleged financial loss in the context of the statutory claim. The court determined that the appeal should be dismissed, and the order for preliminary discovery set aside, while also addressing the costs associated with the applications.
The final orders of the court were to grant leave to appeal, allow the appeal, set aside the order for preliminary discovery, and direct that the respondent pay the applicant's costs associated with both the application for preliminary discovery and the appeal. This decision underscored the necessity for plaintiffs to provide concrete evidence of loss in claims under the Trade Practices Act.
Orders
Orders of the court
1. Leave to appeal be granted.
2. The appeal be allowed.
3. The order as made on 17 October 2008 for preliminary discovery pursuant to Order 15A r 6 of the Federal Court Rules be set aside.
4. The respondent pay the applicant’s costs of and incidental to the application for preliminary discovery.
5. The respondent pay the applicant’s costs of and incidental to the application for leave to appeal and the appeal.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
In the present case, two causes of action are relied upon. One is a contractual claim and the other is under the Trade Practices Act 1974 (Cth). Focusing for the present on the latter claim, it is a claim for damages under s 82 which has been described as a statutory cause of action: see, for example, the observations in the joint judgment in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525. As Middleton J correctly said in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (2007) 164 FCR 450 at [97] and [101], if the cause of action is based on alleged misleading or deceptive conduct arising from misrepresentations, there must be some evidence showing the loss or damage arising out of the alleged misleading statements to found an order for preliminary discovery. It is clear from the authorities that a prima facie case does not have to be established. But there must be some evidence concerning the loss. The gist of the claim for damages under s 82 was that Apache made representations that full supplies of gas would be restored to its customers by mid-August 2008 and, on the strength of that, Newcrest cancelled some temporary arrangements for the supply of gas but it was later forced to make further alternative arrangements when full supply was not restored by that time. The primary judge made the following finding at [27]:There is uncontradicted evidence that Newcrest suffered financial loss as a result of it having cancelled some of its gas supply contracts and then having to find alternative sources of energy.Counsel for Newcrest did not seek to defend this conclusion by reference to the evidence in so far as it related to the events in August 2008. Indeed it is not supportable on the evidence. The only evidence was an assertion by Mr Brown in his affidavit, sworn 17 September 2008 at par [38(h)], supporting the application for preliminary discovery that in relation to losses flowing from the alleged misrepresentations, “Newcrest may suffer loss and damage as a consequence of its reliance on those representations”. At best, this statement is conditional and speculative. Plainly, if there was any evidence of loss or damage having been suffered, it could have been furnished by Newcrest, even if only in the most cursory way. It was peculiarly within its knowledge whether the alleged misrepresentations resulted, even arguably, in loss. No evidence at all on this issue was furnished and it could not be said that the preliminary discovery sought might repair this deficiency. Mr Brown deposed to the damages for breach of contract as being the additional cost incurred by Newcrest in obtaining replacement gas and procuring alternative fuel at par [39(e)]. The evidence of Mr Goddard, a solicitor acting for Newcrest, in his affidavit sworn on 26 September 2008, gave further generalised evidence as to the likely additional costs. We apprehend that evidence to be related to the case in contract and in any event appears to be related to correspondence from Apache to Newcrest dated 30 August 2008 concerning alleged losses directed to the reduction in supply from 1 October 2008. There is no evidence that the cost of the gas deposed to in par [11(c)] of the affidavit of Mr Goddard, dated 26 September 2008, (the gas resulting from the second interim supply arrangements) was greater than the cost of the gas deposed to in [11(a)] of that affidavit (the gas resulting from the initial interim supply arrangements).
Decision
Reasons for decision
MOORE, GILMOUR AND FLICK JJ
There is no reason to interfere with the Order made by the trial Judge as to costs.CONCLUSION The opportunity has been taken to read in draft the reasons for decision of Justices Moore and Gilmour. Regrettably, concurrence cannot be expressed with their conclusions. Contrary to the conclusions reached by their Honours, it is considered that the Application for Leave to Appeal should be dismissed.