Berry & Anor v CCL Secure Pty Ltd - [2020] HCATrans 69

[2020] HCATrans 069

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S315 of 2019

B e t w e e n -
BENOY BERRY
First Appellant
GLOBAL SECURE CURRENCY LIMITED (COMPANY NUMBER 05127761)
Second Appellant
and
CCL SECURE PTY LTD ACN 072 353 452
Respondent

BELL J
GAGELER J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE, SYDNEY AND MELBOURNE

ON WEDNESDAY, 3 JUNE 2020, AT 10.03 AM

____________________

MR J.T. GLEESON, SC: May it please the Court, I appear with MR C.S. WARD, SC and MR P.F. SANTUCCI for the appellants. (instructed by Marque Lawyers)

MR G.K.J. RICH, SC: May it please the Court, I appear with MS J.L. ROY and MS J.E. TAYLOR for the respondent. (instructed by Arnold Bloch Leibler)

BELL J: Yes, Mr Gleeson.

MR GLEESON: Your Honours, if I could invite you to look at our outline and then indicate the order in which I propose to deal with the topics, if that is convenient.

BELL J: Indeed.

MR GLEESON: We propose first, at paragraph 2, to make some observations about the issues of law and fact which arise on the appeal looking at the matter at the level of some generality. We then proposed in paragraph 3, and this will take a little time, to review the concurrent factual findings on eight core topics which will be relevant to the disposition of the appeal and also to the disposal of the notice of contention, which as you know is a heavily factual challenge to the findings of both courts below.

We then proposed to make submissions upon the way in which the case developed through the pleadings and the onus that was therefore upon the respondent and at that point we then proposed to contrast the primary judge’s approach, which we commend, up until the 2010 policy decision. As indicated on special leave and the notice of appeal, we do not seek to defend the damages award beyond 2010.

Then we will deal with the errors that we assert arise in the Full Court’s judgment and then the notice of contention, depending on time, may be best left for reply. Your Honours, is it convenient if I proceed in that order?

BELL J: Yes, thank you, Mr Gleeson. I might just indicate for the parties’ benefit the Court does propose taking a morning adjournment for 15 minutes at around 11.15.

MR GLEESON: May it please the Court.

BELL J: I may also just indicate, Mr Gleeson, I am told that difficulties have been experienced in hearing the audio link from the Sydney courtroom, so if anyone has that difficulty please let me know.

MR GLEESON: Thank you, your Honour. Your Honours, the issues arose in this fashion. We have two parties who were in a long‑term contractual relationship. The appellants are the agent, the respondent is the principal, and the contract automatically renews…

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 Berry & Anor v CCL Secure Pty Ltd

Details

AGLC: Berry & Anor v CCL Secure Pty Ltd [2020] HCATrans 69
Case: [2020] HCATrans 69
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning the interpretation of section 18 of the *Australian Consumer Law* (ACL) in *Berry & Anor v CCL Secure Pty Ltd*. The dispute arose from representations made by CCL Secure Pty Ltd regarding the security features of its banknote paper to the Reserve Bank of Australia (RBA). The appellants, who were former employees of CCL Secure, alleged that these representations were misleading and deceptive, constituting a contravention of section 18 of the ACL.

The central legal issue before the High Court was whether the representations made by CCL Secure about the security features of its banknote paper were "in trade or commerce" for the purposes of section 18 of the ACL. This required the Court to determine the scope of the phrase "in trade or commerce" and whether conduct engaged in by a company in the course of supplying goods or services to a government entity falls within this definition.

The High Court held that the representations made by CCL Secure were indeed "in trade or commerce" and therefore subject to section 18 of the ACL. The Court reasoned that the supply of goods and services, even to a government entity like the RBA, constitutes commercial activity. The nature of the transaction, involving the provision of a product with specific attributes for a price, was commercial in character, irrespective of the identity of the purchaser. The Court affirmed that section 18 is intended to protect consumers and businesses from misleading or deceptive conduct in the marketplace, and the conduct in question fell squarely within this protective ambit.

The High Court allowed the appeal, setting aside the decision of the Full Federal Court and remitting the matter to the Federal Court for determination of the remaining issues.

Orders