Cartwright v BlueScope Steel Limited - [2015] HCATrans 268

[2015] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S78 of 2015

B e t w e e n -
SYDNEY CARTWRIGHT
Applicant
and
BLUESCOPE STEEL LIMITED
First Respondent
WORKERS COMPENSATION NOMINAL INSURER
Second Respondent
Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2015, AT 1.09 PM

MR B.D. DOOLEY, SC: If it pleases your Honours, I appear with MS T.T.C.N. PHAN for the appellant. (instructed by Slater & Gordon)

MR G. CURTIN, SC: If it pleases your Honours, I appear with my learned friend, MR D.I. TALINTYRE, for the first respondent. (instructed by Sparke Helmore Lawyers)

MR L.D. ROBISON: Your Honours, I appear for the second respondent. (instructed by Kaden Boriss Lawyers)

BELL J: Yes, Mr Dooley.

MR DOOLEY: Your Honour, not in the application book, there are Appendix 1 and 2 to the Court of Appeal’s judgment - if I could hand copies to your Honours? Are two sufficient, your Honours?

BELL J: Yes.

MR DOOLEY: Thank you. Your Honours, if I could take you to the appendixes, if they are before you, Appendix No 1 is the first respondent’s securing guidelines. Of significance is on page 1, the diagram next to “Coil Requirements”. There is an issue at trial about whether the coils could be off centre or not and the diagram there has the four blocks preventing coil movement.

At trial it was known and at the court we pointed out that this diagram did not reflect the circumstances that occurred on that day and that there were no such blocks in position and our submission in relation to that is, the Court of Appeal having made that mistake, one could understand why they perhaps had some reticence about dealing with the issue of whether the coil could in fact be off centre, having made that mistake.

BELL J: I am sorry, the mistake that the Court of Appeal made ‑ ‑ ‑

MR DOOLEY: They set out that the set‑up of the coil on the pallet as at the day of accident included having the four blocks present on the pallet so that if one goes to the application book at 122 and 121, they are the actual pallets and wire coils, post‑accident.

BELL J: Yes.

MR DOOLEY: In fact the blocks, they are wire coils in 122 and 121 - what is shown in Appendix 1 is what is known as tin plate, a different product.

GAGELER J: I am a little lost. Is this one of the specific complaints you make?

MR DOOLEY: It is one of the specific complaints that we make in relation to the Court of Appeal’s position where it found it unlikely that the coils on top of the pallets could be off centre, that is, the coils in fact vary in sizes and sometimes contained within the limits of the…

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.

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Details

Case: [2015] HCATrans 268
Decision Date

CaseChat Overview and Summary

The applicants, Mr. Cartwright and others, brought proceedings against BlueScope Steel Limited in the Federal Court of Australia. The dispute concerned the alleged contravention of section 18 of the Australian Consumer Law (ACL), which prohibits misleading or deceptive conduct. Specifically, the applicants alleged that BlueScope made misleading representations about the fire safety of its steel products, leading them to purchase these products when they would not have done so had they been aware of the true risks.

The primary legal issue before the Full Federal Court was whether BlueScope's conduct in relation to the fire safety of its steel products constituted misleading or deceptive conduct in contravention of section 18 of the ACL. This required the court to consider the nature of the representations made, the relevant audience to whom those representations were directed, and whether those representations were likely to mislead or deceive that audience regarding the fire safety of the steel.

Bell and Gageler JJ found that BlueScope had engaged in misleading or deceptive conduct. Their Honours reasoned that BlueScope's representations, particularly those concerning the fire performance of its steel products, were likely to mislead consumers into believing that the steel offered a level of fire resistance that it did not possess. The court applied the established principles for assessing misleading or deceptive conduct under the ACL, focusing on whether the representations, viewed objectively, were capable of misleading the relevant class of consumers. The court considered the context in which the representations were made and the overall impression they conveyed.

Orders