Burton, P.R. v Citicorp Finance Pty Ltd

[1987] FCA 255

2.5 5 (LIMITED DISTRIBUTION)

IN THE FEDERAL COIJRT OF AUSTRALIA ) )

VICTORIA DISTRICT REGISTRY ) 'C : , NO. 4 2 OF 1987

GENERAL DIVISION

EX TEMPORE JUDGMENT

Between: PHILLIP RIIYMOND BURTON and

NOALA F'RANCES BURTON

(Applicants)

And

(Respondents)

Coram: Ryan J.

Date: 16 April 1987

W: Melbourne

EX TEMPORE REASONS FOR JUDGMENT

In this matter, by notice of motion dated 24 March

1 9 8 7 , the third respondent has sought an order pursuant to

0.20 r.20 of the Rules of this Court that the application be

dismissed as against it. Alternatlvely, it seeks an order

f o r such dismissal in the exercise of the Court's inherent ~urisdiction. In the further alternatlve, It is sought that

the applicants' statement of claim be struck out pursuant to

0.11 r.16 in that It discloses no reasonable cause of actlon

or it 1s otherwlse an abuse of the process of the Court.

The case pleaded agalnst the thlrd respondent is that

in the course of its busmess as a credit reference agency,

It published on specified dates to particular companles or

firms, certain statements of and ccjncernlng the applicants

which had been supplied to the third respondent by the	first
or second respondents.

It was flrst argued for the flrst respondent In support

of its notlce of motion that the circumstances disclosed by

the statement of claim made applicable the followlng

observations in a ]omt judgment of Mason ACJ, Wilson, Deane

and Dawson JJ in Yorke v. Lucas (1985) 158 CLR 661 at 666:

"It should be observed at the outset that the

facts as found by the trlal judge raise the

question whether the Lucas company itself was

guilty of any contravention of s.52. It is, of

course, established that contravention of that

section does not require an Intent to mislead or

deceive and even though a corporation acts

honestly and reasonably, it may nonetheless engage in conduct that IS misleadlng or deceptive or is llkely to mlslead or deceive: Hornsbv Buildlnq Information Centre Ptv. Ltd. v. Svdnee

- Buildinq Informatlon Centre Ltd. (1978) 140 CLR	216, at p.228; Parkdale Custom Built Furniture
Ptv. Ltd. v. Puxu Ptv. Ltd. (1982) 149 CLR 191,
at p.197. That does not, however, mean that a
corporation whlch purports to do no more than
pass on lnformation supplled by another must
nevertheless be engaging In misleading or deceptlve conduct if the informatlon turns out to be false. If the circumstances are such as to make it apparent that the corporation IS not the source of the information and that it expressly

3

ar lmplledly dlsclalms any bellef In ~ t s truth or

falsity, merely passlng It on for what It 1s

worth, we very much doubt that the corporation

can properly be sald to be Itself engaglng	In
conduct that 1s misleadin7 or deceptlve."

Of necesslty, in my new, the full circumstances of a case

such as the present are not to be gleaned from the statement

of claim and I am not persuaded that circumstances of the

klnd contemplated by thelr Honours in that passage

necessarily attended the publication by the third respondent

which is complained of in the statement of claim. Whether

those circumstances did attend the publicatlon is a matter to

be determined on all the evidence after issue has been	~olned
by an approriate defence.

It was next put that, Insofar as It relled on

publications occurring before February 1384, the appllcation

under the Trade Practices Act 1374 ("the Act") against the

third named respondent	is barred by	s.82(2) which provldes
that :

"An action under sub-section (1) Cto recover

damages suffered by conduct in contravention of a

provision of Part IV or V of the ActJ may be

commenced at any time within 3 years after the

date on which the cause of action accrued."

In my view that sub-section is not sufficiently different

from traditionally framed statutory provislons for the

llmltation of actions to warrant the vlew that it

automatically precludes the bringing of an applicatlon

4 .

without the need for a respondent to allege by way of defence that the action has become statute barred. I am relnforced in thls conclusion by the followlnq observatlons of Toohey J. In James v. Australla and New Zealand Bankinrrr Group Ltd.

(1986) 64 ALR 347, where at 396:

"Although s . 8 2 ( 2 ) is expressed in terms that an

action may be commenced withln three years after

the date on which the cause of action accrued,

the general approach to such a provision in

comparable legislation has been that It

constitutes a defence. A respondent or defendant

may, for whatever reason, choose not to plead a

relevant limitation provision in which event it

is not encumbent upon the court to consider the

question for itself. Indeed, in the absence of

such a defence, a court that did so would

trespass beyond the issues Paised by the

pleadings. The position is in marked contrast to

that where the jurisdiction of a court to deal

with the claim before it is in question. Notwithstandlng the failure of the respondent or defendant to raise the matter, the court must satisfy itself as to ]urisdlction."

In my respectful view that passage clearly makes the

distinction between a fact which 1s an essential

pre-requisite to ~urlsdiction and a fact which may be pleaded

in bar of a claim prlma facie within jurisdiction. I also

agree with the submissions made by Mr. Maxwell for the

applicants that an essential element in a cause of action of

this kind is damage as well as the contravention of the Act.

The precise point at which damage was suffered so that a

cause of action can be said to accrue is also a question of

fact which cannot be answered merely by reference to the

statement of claim itself.

Reference was then made by Mr. Sharp who appeared for the thlrd respondent to the provisions of s.65A of the Act

which was inserted by Act No. 165 of 1984 and commenced

operation on 25 October 1984. Mr. Sharp conceded that the

provision as so amended afforded the third respondent a

protection only in respect of publications occurring after

the coming into operation of the amending Act. However, he

argued that in respect of such matters the consequence was

that the statement of claim failed to disclose a cause of

action under the Act against the third respondent.

In my view, s.65A constitutes an exception to the

operation of the Act. It is not something to be negatived in

advance by the pleader of a statement of claim invoking a

cause of action under the Act. Section 65A itself, as Mr.

Maxwell pointed out in the course of argument, is subject to

a number of exceptions which I consider are properly to be

raised by way of reply to a defence pleading the application

of s.65A to a particular respondent.

Reference was also made by Mr. Maxwell to a number of common law causes of action relied on by the applicants. The

pleading of those causes of actlon has not been attacked on

the grounds afforded by 0.11 r.16 but in respect of whlch Mr.

Sharp argued, as I understood him, that they fell, once it

has been accepted that the cause of action which attracts

6.

prlmary ~urisdlct~on to thls court under the Act cannot be

sustained. Slnce I have Indicated that the flrst premlse of

that argument is not one that can be made out, It 1 s

unnecessary to deal further wlth It. However, I Indicate In

passing that the rellance placed by Mr. Maxwell on the

passages from the ludgment of Toohey J. In James v. Australia

and New Zealand Bank Ltd. (supra) Immediately before that

which I have lust quoted appears to me to have some cogency

in support of the conclusion that those causes of actlon,

although arlsing in the pendent or accrued lurisdictlon of

this Court, may nevertheless be pursued if the Court in its

discretion should declde to exerclsp the lurisdiction.

It will be apparent from what I have said so far that I

am not persuaded that this 1s an appropriate case for the

exercise of the jurisdiction under 0.11 r.16, or the Inherent

]urisdiction of the court to stay this application in limine.

No attempt has been made, if one could be, to set up a

substantial complex of facts demonstratlng that the thlrd

respondent has a complete defence to the action, or the

application so far as it has been pleaded agalnst it. That

is apparent from the form of the affidavit relied upon In

support of the notice of motion. It occurs to me that a more

appropriate course might be to identlfy, after pleadings have

closed separate questions of fact or law which could be

resolved between the applicant and the third respondent

without occasionlng the delay and expense which might

7

otherwlse be incurred If that respondent were to remaln fully

involved in the litigatlon of all the 1ssues between the

applicant and the flrst and second respondents.

In the circumstances I propose to refuse the motion. I

will hear counsel now on the question of costs.

I c e r t l f y that thls and the C:

?recedl:lg pages are a true copy of the

Reasons f o r Judgment herein of h l s Sonour

Mr. Justlce f7c>aL

,TJ?7z $cr	-L r
Associate

Dated: .g. 4 I 7 p7

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY No. G39 of 1986

DIVISION GENERAL 1

BETWEEN :

CONSTABLE HOLDINGS PTY. LTD.

Appllcant

AND :

THE COMMISSIONER OF TAXATION

OF THE COMMONWEALTH OF AUSTRALIA

Respondent

CORRIGENDUM

Amendment to the Reasons for Judgment of hls Honour

Mr. Justlce Beaumont dellvered 21 April 1986:

Page 1 - llne 6 - delete “dlstrlbutlon to shareholders“

and Insert “dlssolutlon of a company“.

Assoclate to BeaGont J.

21 May 1987