Berry v CCL Secure Pty Ltd

The High Court of Australia heard an appeal concerning damages awarded under the *Trade Practices Act 1974* (Cth) for misleading or deceptive conduct. The appellants, Dr Berry and GSC, had entered into an agreement with the respondent, CCL Secure Pty Ltd (formerly Securency Pty Ltd), which they subsequently relinquished due to the respondent's conduct in contravention of section 52 of the Act. The central dispute revolved around the quantum of damages, specifically whether the respondent could contend that, absent its misleading or deceptive conduct, it would have lawfully terminated the agreement, thereby reducing the appellants' recoverable loss.

The legal issues before the High Court were whether the Full Court of the Federal Court had erred in its assessment of the damages recoverable by the appellants. This involved determining whether the respondent bore the onus of proving that it would have lawfully terminated the agreement in the absence of its contravening conduct, and if so, whether it had discharged that onus by demonstrating a "real (not negligible) possibility" of such lawful termination. The court was required to consider the application of the presumption against wrongdoers and the evidential burden of proof in the context of a statutory claim for damages under section 82 of the *Trade Practices Act*.

The High Court allowed the appeal, finding that the respondent had failed to discharge the evidentiary onus imposed upon it regarding causation of the appellants' loss. The court clarified that in a statutory action under section 82, the plaintiff bears the legal onus of proving the loss or damage suffered and its connection to the contravention. However, where the defendant seeks to rely on a "lawful means alternative" to reduce the quantum of damages, the burden of adducing evidence to establish the real possibility of such an alternative lies with the defendant. The court concluded that the respondent had not presented sufficient evidence to establish that, but for its misleading or deceptive conduct, it would have lawfully terminated the agreement.

Consequently, the High Court set aside the orders of the Full Court and ordered judgment for the appellants in the sum of $27,078,507, plus interest, and awarded them costs of the appeal to the Full Court and the High Court.