Charben Haulage Pty Ltd v Caltext Petroleum Pty Ltd & Anor

[2006] HCATrans 622

[2006] HCATrans 622

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S40 of 2006

B e t w e e n -

CHARBEN HAULAGE PTY LTD

Applicant

and

CALTEX PETROLEUM PTY LTD

First Respondent

ENVIRONMENTAL & EARTH SCIENCES PTY LTD

Second Respondent

Office of the Registry
  Sydney  No S43 of 2006

B e t w e e n -

CHARBEN HAULAGE PTY LTD

Applicant

and

ENVIRONMENTAL & EARTH SCIENCES PTY LTD

First Respondent

CALTEX PETROLEUM PTY LTD

Second Respondent

Applications for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 NOVEMBER 2006, AT 12.22 PM

Copyright in the High Court of Australia

__________________

MR P.T. TAYLOR, SC:   May it please your Honours, I appear with my learned friend, MR D.S. WEINBERGER, for the applicant in both applications.  (instructed by NOT Lawyers)

MR R.J.H. DARKE, SC:   May it please the Court, I appear with my learned friend, MR M.S. HENRY, for the first respondent in S40 of 2006 and the second respondent in S43 of 2006.  (instructed by Middletons)

MR J.J. WEBSTER, SC:   If the Court pleases, I appear with my learned friend, MR M. GREEN, for the Environmental & Earth Sciences in both matters.  (instructed by Colin Biggers & Paisley)

GUMMOW J:   Yes, Mr Taylor.

MR TAYLOR:   Your Honours, the misleading conduct claim against EES in the Full Court turned on the question of reliance, reliance on the Report 19844C in respect of Lot U, No 692B.  References to other reports or to Lot T or to No 694 are irrelevant to this application.  The trial judge accepted the applicant’s evidence of reliance.  The critical evidence was given by the applicant’s solicitor, Mr Beilby.  That is found at page 146 of the appeal book.

At the top of that page in paragraph 169 he testified that he had received the report, that he read it, that he highlighted with a yellow highlighter the conclusion page, that he underlined the word “residential” and that he concluded from the report and its conclusion “that the site was suitable for residential use which is the highest level” of use, and so he advised that the applicant could proceed to settlement.  He said he would not otherwise have done so.

In addition to that and other evidence, Caltex and EES made relevant concessions in their written submissions at trial.  In relation to this pleaded representation of suitability for residential land use, if your Honours go to the supplementary appeal book ‑ ‑ ‑

GUMMOW J:   Just before you do that, Mr Taylor, you have two special leave applications.  Can you tell us how they arise and how they are linked, shortly?

MR TAYLOR:   Yes, your Honour.  The applicant commenced proceedings against two respondents in the Federal Court and was successful in respect of a different cause of action against each.  Each of those respondents appealed against the decision of the primary judge and the two appeals were each upheld and as a result there are two applications, although there are common issues both in fact and law in both.

GUMMOW J:   Yes, we have been proceeding on the footing that they are being heard together and the one round of submissions covers both.

MR TAYLOR:   Yes, your Honour.  If your Honours have the supplementary appeal book, at page 7 Caltex’s submissions start in the extract that follows which includes, if your Honours see that at paragraph 181 on page 9, line 40:

Caltex accepts that EES made the representation pleaded; i.e., that No. 692B had been remediated to a standard suitable for residential land use.

At paragraph 187 at the bottom of page 10, the next page:

Caltex accepts, for the purpose of these proceedings only, that the evidence establishes that the EES February 2000 Report was misleading [and] deceptive insofar as it represented that No 692 was suitable for residential land use -

If your Honours go back to 179 and 180 on page 9, in relation to reliance, the third element of the cause of action, at 179:

On the evidence the Court should conclude that, while Mr. Beilby read the whole of the report, he only relied upon the ultimate conclusion . . . 

Charben in fact could only have relied upon the representation pleaded in para 16(j) of the FASC.

That is the representation in the next paragraph about suitability for residential land use.  EES, whose submissions came after Caltex, adopted that concession on reliance.  If your Honours go to page 13 of the supplementary book, at paragraph 14 under “Submissions by Caltex” it reads:

EES agrees with and respectfully adopts much of what Caltex has submitted in its submissions dated 7 August 2003, subject to various qualifications as set out below.

One of them is 187, which is this misleading nature of the representation.  There is no reference to 179 or 180.  More particularly, if your Honours go forward to page 19 at paragraph 118, it says:

EES generally agrees with and adopts the submissions made by Caltex in paragraphs 172 to 180 –

which includes the reliance concession at 179 and 180.  In the result, the trial judge held that reliance was not a major issue.  His Honour also held that there was no doubt that Charben relied on the report, especially the concluding statement about suitability for residential land use.  Confirming suitability for residential land use, if your Honours turn to the large application book, page 113, in the middle of that page, line 29, it is recorded in the Full Court’s judgment that the objective of the report was:

‘to validate the site to confirm it is suitable for the proposed residential usage’ -

The Full Court acknowledged that it was compelled to accept the evidence of the plaintiff’s witnesses, including Mr Beilby, yet it rejected the trial judge’s finding that reliance was not a major issue.  It made no reference to the concessions of Caltex and EES that I have taken your Honours to and it allowed the appeal on the basis that there should be no finding of reliance.  In so doing, the Full Court effectively rejected the evidence of Mr Beilby.  Having quoted his evidence on reliance in the passage at paragraph 169 that I took your Honours to, it found that he gave no evidence that he believed the report contained the representations found by the trial judge.  If your Honours go to 149 of the application book at line 20, the court says:

It is difficult to see, therefore, how Mr Beilby could say that, had he not believed, from his reading of Report 19844C, that Lot U was clean and suitable for development, he would not have advised Charben to proceed to settlement . . . 

It is not possible, therefore, to find that Mr Beilby was induced, by representations to the effect found by the primary judge, to give any advice to his client, Charben.

Your Honours, related to that is the Full Court held that the trial judge made no finding as to whether the report actually represented that the land was suitable for residential land use, contrary to the concession at least of Caltex, but that, in our submission, ignores several of the trial judge’s findings.  Perhaps rather than take your Honours to them in the time, but his Honour did make such findings at pages 28, 38 and 39, and those findings are effectively acknowledged in the EES written submissions, page 257 of the appeal book in paragraph 15 where, although the finding is opposed or criticised by EES, there is no suggestion in paragraph 15 that the finding in fact was not made about the representation that the site was suitable for residential land use simpliciter.

In our submission, your Honours, the findings of the Full Court amount to an unjustified revisiting of the trial judge’s holdings on credit, holdings which were not challenged.  These findings also advance a case different in defence from that maintained at trial, similar, in our submission, to the circumstances that this Court dealt with in the decision of Whisprun Pty Ltd v Dixon where at paragraph 51 of that judgment this Court held:

It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial . . . Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial ‑ ‑ ‑

GUMMOW J:   Well, I think the criticisms made in Whisprun of the New South Wales Court of Appeal are one thing.  The thoroughness of the judgment here in the Full Court may be another.

CALLINAN J:   Except you say that this is just a misstatement about what happened at the trial by the Full Court, do you not, Mr Taylor?

MR TAYLOR:   We say that the basis ‑ ‑ ‑

CALLINAN J:   In the respects to which you referred.

MR TAYLOR:   Well, the trial judge found reliance was not a major issue and found the evidence compelling in favour of reliance in any case on this particular representation and they have not looked at – they have quoted the compelling evidence, but then apparently immediately disregarded it as evidence proving reliance in circumstances where in addition to that compelling evidence there has been a concession on it, we say…..not referred to, that the administration of justice in the particular case at least warrants a grant of special leave because those findings were the basis of the Full Court’s denial of the applicant’s claim against EES on misleading conduct.

Your Honours, if I can just turn to the misleading conduct of Caltex which, unlike the case against EES, was not found in the applicant’s favour by the trial judge.  Caltex successfully resisted the claim, notwithstanding those admissions, on the ground that the report was the conduct of EES, not Caltex, but Caltex provided the report without a disclaimer, asserted that it had fulfilled its obligations – perhaps I should take your Honours to the pages.  Your Honours have the supplementary appeal book.  At page 3 of that book your Honours see the covering letter of the report which asserts that “Completion of the contract is now due”, and at page 5, line 30, there is an assertion that the vendor:

has fully complied with all the terms and conditions of the Contract . . . 

if you fail to comply with this notice the Vendor may terminate the Contract and the deposit paid by you will be forfeited -

In our submission, these were statements and conduct in connection with the report, relevant matters in determining whether Caltex had engaged in misleading conduct in accordance with the decision of this Court in Butcher v Lachlan Elder Realty Pty Ltd.  To adopt the words of the majority of the Court at paragraph 59 in that decision, everything relevant Caltex did up to the time when Charben completed the purchase must be taken into account.

At paragraph 50 of that decision this Court recognised the significance of the presence and similarly therefore the absence of an exclusion clause.  The Full Court overlooked all of those matters:  Butcher, the absence of a disclaimer, the notice to complete after service of the report.  None of those matters were referred to by the Full Court and, in our submission, the principles stated in Butcher addressing the issue of when one party’s use of another’s misleading document will constitute misleading conduct are principles of general importance and warrant a grant of special leave.

GUMMOW J:   What do you say about the submissions against you at pages 253 and 254 of the application book?

MR TAYLOR:   In terms of?

GUMMOW J:   Well:

the Applicant purports to rely upon “concessions” which were never made ‑ ‑ ‑

MR TAYLOR:   I have taken your Honour to the particular concessions.  They are the written submissions that the two parties made at trial and they were the only submissions made at trial.  There were no oral submissions.

GUMMOW J:   No oral submissions at all?

MR TAYLOR:   No.  The evidence was heard and then the case proceeded on the basis of written submissions by the parties.

GUMMOW J:   There was no oral hearing of submissions?

MR TAYLOR:   Not at the trial, no.

GUMMOW J:   What about the second point?  We have looked at that.  That is Whisprun.  Now, it is said that the finding of absence of reliance was obiter.

MR TAYLOR:   Well, there were some findings after the reliance issue where the Court went on to consider whether the conduct was misleading.  Relevantly, there were three aspects on the representations made as to whether the conduct was misleading:  whether the land was suitable for residential use, in other words, whether that representation was false; secondly, in relation to the guidelines, whether too aspect of the guidelines were adhered to or not.

GUMMOW J:   How many days did this trial go?

MR TAYLOR:   Three weeks of evidence, your Honour.

GUMMOW J:   And there were no oral submissions?

MR TAYLOR:   No.  The evidence finished.  The matter was adjourned with a timetable for written submissions.

GUMMOW J:   Is this an ordinary practice in a Federal Court trial?

MR TAYLOR:   I cannot say whether it is common, your Honour.  I think it has happened in other cases.

GUMMOW J:   So the first occasion on which the submissions are tested in court between Bench and Bar was in the Full Court?

MR TAYLOR:   Yes, there were written submissions by the applicant, response to the written submissions by the respondents and then reply submissions.

GUMMOW J:   Did the parties acquiesce in this process at trial?

MR TAYLOR:   Yes, your Honour.  Your Honour, as to the misleading conduct, the three aspects of misleading conduct in respect of one of them, it was not dealt with at all.  In relation to whether the representation about suitability for residential land use was true or not, was not dealt with.  As to the soil tests, the Full Court noted that the trial judge ‑ ‑ ‑

GUMMOW J:   Were there issues of credit?

MR TAYLOR:   No issues of credit were raised on appeal.

GUMMOW J:   No, no, at trial?

MR TAYLOR:   We say there was some cross‑examination, but relevantly not on this, we say, but in any event ‑ ‑ ‑

GUMMOW J:   On any issue.  Were there any issues of credit at trial to be decided?

MR TAYLOR:   Your Honour, in terms of what the submissions of the respondents put in as to whether they challenged the credit of witnesses, they did raise, I imagine, some issues of credit, but they were dealt with in the judgment.  The judge found all the applicant’s witnesses to be reliable and honest and no issue was taken on appeal about any of those credit issues.

CALLINAN J:   I would have thought that reliance would have been a matter that would have been the subject of cross‑examination, but whether it was or it was not, you say the concessions to which you have taken us made it cease to be an issue by the time of submissions.  Is that correct?

MR TAYLOR:   Yes, your Honour.  The concessions related to the particular representation which is important in this application.  Other representations were pleaded and there was a contest about reliance upon other representations.  But in relation to this one, which is pre-eminently the subject of the Full Court’s judgment, the concessions were relevant and any cross‑examination really became otiose on that concession.

GUMMOW J:   What relief would you have us grant?  Simply restoration of the primary judge?

MR TAYLOR:   That is what relief is sought, yes.  Your Honour asked me a question about the misleading conduct.

GUMMOW J:   Yes.

MR TAYLOR:   I am not sure that I answered that.  In relation to one of the three matters that was not dealt with, the second matter, it had been decided by the primary judge on what he determined was common ground, the court found that it was not common ground but did not go forward to determine whether or not the misleading nature of the representation was found.  In relation to the third point, a different aspect of misleading conduct, we say that it was not also sufficiently found, but that there is - at least in one respect the court did find against the applicant on that.  Your Honour, can I finally deal with the matter of the contract claim against Caltex?  The trial judge’s finding against Caltex on the contract case was ‑ ‑ ‑

GUMMOW J:   That does seem to turn on matters of construction.

MR TAYLOR:   Yes.  Your Honour, the Full Court found a specific express obligation on Caltex to ensure that petrol pollution was reduced to a specified level, was discharged by the general release clause, and the contract provided that completion was conditional on the fulfilment of that specific obligation, and that the specific obligation, amongst others, would not emerge on completion.  The first of those matters, the conditional nature of the contract, was not regarded as significant by the Full Court, and the second was expressly denied, at page 122.  Your Honour, I note my time is up.

GUMMOW J:   Go on, finish, Mr Taylor.

MR TAYLOR:   At 122 at the foot of that page:

The obligations of Caltex under 44.2(a) –

which is the obligation to reduce the petroleum levels –

were not intended to continue after completion.

The point we take about the construction is that this Court has repeatedly held that an exclusion clause might be read down if it would otherwise defeat the main object of the contract.

GUMMOW J:   Well, it is said that this is not an exclusion clause in that sense, that this is not a contract of adhesion, that this is a specific allocation of responsibilities hammered out between two commercial parties.

MR TAYLOR:   Ultimately, we say that there is a literal reading of both the relevant clauses which would give effect to both of them as set out in our summary of argument which was not considered by the Full Court, but ‑ ‑ ‑

CALLINAN J:   If you are wrong about that, the Full Court ‑ ‑ ‑

MR TAYLOR:   The contract point?

CALLINAN J:   Yes, the Full Court is right, your appeal then would simply be against the other respondent, would it not?

MR TAYLOR:   EES?

CALLINAN J:   Yes.

MR TAYLOR:   Subject to the matter of the second point, whether Caltex’s conduct in relation to the report ‑ ‑ ‑

CALLINAN J:   Whether passing it on or ‑ ‑ ‑

MR TAYLOR:   Passing it on and demanding completion on the basis that they had cleaned up the land.  If that means that that claim cannot be sheeted home to them, then in those ‑ ‑ ‑

GUMMOW J:   That is why you have joined them as second respondent in that appeal, is it not?

MR TAYLOR:   Well, they were a party to the appeal by EES before the Full Court.

GUMMOW J:   What we are trying to extract from you is that, insofar as you would want to draw in Caltex to deal with your appeal against the environmental people, you would be able to do so because they are just a party to that appeal.  It would not involve the first appeal, would it?

MR TAYLOR:   It certainly could be done that way, your Honour.  That might be a convenient way to do it in the sense that I think that the notice ‑ ‑ ‑

GUMMOW J:   We are just trying to work out the relativities and relationships, that is all.

MR TAYLOR:   The notice of contention that the applicant put on in relation to this misleading conduct claim against Caltex would have been put on in Caltex’s appeal in the Full Court, which is what the application to this Court against Caltex as first respondent concerns.  But for our part, so long as it was open to maintain that claim in only the proceedings in which EES is the first respondent, we would be content.  Those are our submissions.

GUMMOW J:   Yes, thank you, Mr Taylor.  We will adjourn now until 1.40 and at 1.40 we will hear first from you, Mr Webster.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.42 PM:

GUMMOW J:   Yes, Mr Webster.

MR WEBSTER:   Can I take your Honours first to this matter of this concession that it is alleged that EES and Caltex have made?  If I take your Honours back to the page in the supplementary book that the appellants have raised on page 9, your Honours will see my friend was relying upon 179 and 180.  Let me deal just with 180 first if I can, and 181.  Paragraph 180 says:

Charben in fact could only have relied upon the representation pleaded in paragraph 16(j) of the FASC.

Not that they did, but in other words that they could only have done so.  They did not make any admissions or any concessions that in fact there was a reliance upon the representation pleaded.  In fact, in the next paragraph they say:

Caltex accepts that EES made the representation pleaded; i.e., that No. 692B had been remediated to a standard suitable for residential land use.

In other words, they first of all say they could have only relied upon a representation pleaded there and then they say they accept that EES made the representation, not that there is any reliance.  But more particularly, if your Honours go over to page 19 of the same supplementary submission, what my friend did not read to you was paragraph 119, certainly paragraph 118, but 119 says:

In the case of paragraph 181 –

that is where Caltex make the admission that there is a representation –

EES does not concede that it has been relevantly established that EES made the representation pleaded.

Now, I must point out 16(h) is wrong – it is 16(j) – because if your Honours go on down further to see in the defence at paragraph 11(1)(j), that is a pleading about 16(j), so (h) that appears in brackets in that paragraph should read 16(j).

CALLINAN J:   All of this highlights a problem, Mr Webster, of trying to decide a case on the basis of an analysis of exclusively written submissions.

MR WEBSTER:   Well, it could be, your Honour, but his Honour was pretty firm about the matter.  He said that he wanted written submissions and the only basis of any oral submissions was if he called for them.

CALLINAN J:   That is what happened?  It was the judge’s initiative, was it?

MR WEBSTER:   Yes, your Honour.  He said that he wanted written submissions and the only oral submissions he would ask for would be ones that – he would ask for oral submissions if he felt he needed them.  Admittedly, your Honour, that was the case, so it left ‑ ‑ ‑

CALLINAN J:   It is not a practice I am commending; on the contrary.

MR WEBSTER:   No, I appreciate that altogether, your Honour, it is not a practice I would recommend either, but nevertheless his Honour was very – but the point is that we never made the concession about the representation, how could we have made a concession in 180 about there being a reliance upon the representation?  So what my friend is suggesting to you is quite wrong.  In other words, there is no case, no way in the world that we made any concession about either reliance or representation.  The same thing applies to 179.  In 179, on page 9 again:

On the evidence the Court should conclude that, while Mr. Beilby read the whole of the report, he only relied upon the ultimate conclusion.

May well be, but not relied upon the representations that were being made.

GUMMOW J:   Just a minute, paragraph 179.

MR WEBSTER:   Yes:

On the evidence the Court should conclude that, while Mr. Beilby read the whole of the report, he only relied upon the ultimate conclusion.

That is not a concession that there was a reliance upon a representation.  It is also of interest to note at this stage if your Honours go to the opposite page, page 8, where Caltex set out the basis upon how they are doing the reasoning in this case.  You might recall that the evidence was that Caltex did their submissions and we did ours and to try and facilitate matters we would not repeat things that happened in – and these are the paragraphs we have accepted in Caltex:

Caltex submits that the only convenient way to deal with this aspect of Charben’s claim is to first identify the representations which the evidence establishes were relied upon by Charben.  If Charben did not rely upon a particular representation, then that obviates the need to analyse the report in order to determine whether the representation was made, and whether it was false or misleading.

So, in other words, what Caltex was doing in this context was saying, “Let’s identify the representation, then we’ll look to see whether reliance is being…..  If there’s no reliance, then there’s no case and there’s no false or misleading conduct”.  So, in other words, there were a whole series – and we have handed up to your Honours another book of course referring to all of these matters.  But your Honours should be aware of the fact that the Full Court then undertook a full analysis of this allegation about reliance not being ‑ ‑ ‑

GUMMOW J:   Yes, I was going to ask you about that.  Where does the Full Court deal with this reliance question?

MR WEBSTER:   If your Honour goes to page 130 of the book, your Honour will see ‑ ‑ ‑

GUMMOW J:   Yes, I have it, “Whether Reliance Was a Major Issue”.

MR WEBSTER:   Yes, your Honour.  Then he points out about what the trial judge accepted:

reliance was in issue in the pleadings . . . 

In the light of the submissions to the primary judge by both Caltex and EES, it was not entirely correct to say that reliance was not a major issue.  The submissions in relation to each of Report 19844B and Report 19844C are summarised below.

Then he goes into great detail.  Your Honours will see that at page 131 he deals with what the written submissions of Charben were, and then at 111 he starts with Caltex’s submissions.  Can I merely read to you the last sentence of that:

Rather, Caltex submitted, Mr Beilby was merely a conduit for the purpose of interpreting the extract and relating its contents to representatives of Charben.

I must point out all of this is taken from EES and Charben’s submissions.  In other words, his Honour has gone through the submissions that we took him through to point out how reliance was a major issue.  Go to the next paragraph, 112, and again I only rely upon the last sentence:

If Steve Paradisis relied upon Mr Beilby’s statement that the Site was clean, then he relied upon a representation that was not made by EES.

Go to the next paragraph, 113.  These were all taken from Caltex’s submissions, the last sentence again:

Caltex submitted that nothing said in the extract was capable of being a representation that materially misled or deceived Charben into entering into the Lot T Contract.

GUMMOW J:   Yes, that pattern follows ‑ ‑ ‑

MR WEBSTER:   All the way through.

GUMMOW J:   ‑ ‑ ‑ 114 and 115.

MR WEBSTER:   Yes, 116, and then he starts on our submissions in 117, and the same thing again, the last sentences in each one of those point out how we were saying there was just no way that there could possibly be any reliance by Charben in respect to the matter.

GUMMOW J:   Yes, we do not need to hear you any further, Mr Webster.

MR WEBSTER:   Thank you, your Honour.

GUMMOW J:   Yes, Mr Taylor, what do you want to say in reply to
Mr Webster?

MR TAYLOR:   Your Honour, those passages that your Honour has just been taken to are irrelevant to the application in the matter that the Full Court determined.  Your Honour will see at the bottom of page 130 the heading is “REPORT 19844B” and we only get to the relevant report at paragraph 119 at the foot of page 133.  The reason why those other matters are irrelevant to the application is at page 148 of the Full Court judgment at line 26 in paragraph 178, the Full Court explained why, as it concluded there:

It is necessary, therefore, to focus ‑ ‑ ‑

GUMMOW J:   Just a minute, you are at ‑ ‑ ‑

MR TAYLOR:   Page 148.

GUMMOW J:   Yes, 19844C ‑ ‑ ‑

MR TAYLOR:   The last sentence of paragraph 178 on page 148, the Full Court says:

It is necessary, therefore, to focus only on the question of reliance on Report 19844C -

because, as it turned out, for reasons that do not need to trouble your Honour but are dealt with in part in that paragraph, the court found that the position in relation to 19844B was not significant.  If the applicant had not purchased Lot U, the subject of 19844C, then it would not have suffered any of the loss.

With respect, submissions of my learned friend dealing with another report that is not the relevant report does not assist your Honour in relation to the question of whether reliance was properly ventilated.  If your Honours go to, after the heading at the bottom of page 133, that is, “REPORT 19844C”, over on to page 134, your Honours will see that at paragraph 120, line 30, that is the time when the Full Court deals with the written submissions of Caltex in relation to that report, and they adopt certain material that appears probably at page 8 of the supplementary book, but they do not deal at all with the concessions that were made by Caltex.

My learned friend seeks to make some mileage on the fact that 179 is only a concession that Mr Beilby relied on the ultimate conclusion, but if your Honours look at page 18 of the book to see what is in the conclusion, the relevant part of the conclusion, the last paragraph of the conclusion is quoted by ‑ ‑ ‑

GUMMOW J:   Where are you going now, Mr Taylor?

MR TAYLOR:   Page 18 of the application book.

GUMMOW J:   Yes.

MR TAYLOR:   Page 18, top of the page, there is a quotation which is the last line from the conclusion as it says on the preceding page.  The final passage is that:

‘Given the above, the validation results for potential contaminants associated with a former service station site, show that this site is suitable for residential landuse in accordance with the relevant guidelines.’

So we say that is what the concession is about the conclusion that Mr Beilby relied upon and whether there was contest – and there was contest about reliance on other representations and other reports, but not in relation to this representation in this report.  That is why Caltex’s concession covers it and insofar as EES seek to say, “We don’t admit we made it, but we do adopt their concession that we relied upon it”, we say, well, that is, in my submission, a concession that if the court finds that the representation is made, then reliance is conceded.  Those are my submissions.

GUMMOW J:   Mr Webster, what do you say about what Mr Taylor has just been putting to us about 19844C and pages 18 and 148, in other words, his complaint is that what you have been directing us to is not a total picture?

MR WEBSTER:   Your Honour, the circumstances - your Honours will see that his Honour in the Full Court at 148 was dealing in respect of 178 in regard to Report B, that he dealt with 19844C in the following paragraphs, 179, et cetera.

GUMMOW J:   That is right.

MR WEBSTER:   Your Honours will see – in other words, the Full Court deals exactly with all the contents…..my friend is just saying.  You will see, if you look at the last two sentences:

It was no part of Charben’s case that Jim or Vicky Janakis, Steve ‑ ‑ ‑

GUMMOW J:   Where are you reading, Mr Webster?

MR WEBSTER:   Paragraph 179.  I do apologise, your Honour.

GUMMOW J:   Yes, “There is no suggestion”.

MR WEBSTER:  

There is no suggestion that any of them ever paid any attention to Report 19844C.  Thus, the evidence of Mr Beilby as to his reliance upon Report 19844C, in giving advice to the representatives of Charben, is critical.

If your Honour then goes over the page to 181, you will see that then the conclusions come in regard to this criteria, in other words, what was the concept of associating with this reliance by Mr Beilby.  The last sentence:

It is difficult to see, therefore, how Mr Beilby could say that, had he not believed, from his reading of Report 19844C, that Lot U was clean and suitable for development, he would not have advised Charben to proceed to settlement . . . 

Whether or not Report 19844C contained a representation that the Site, or Lot U, had been ‘validated’ in accordance with the relevant guidelines, there is no evidence that Mr Beilby understood Report 19844C to say that.  It is not possible, therefore, to find that Mr Beilby was induced, by representations to the effect found by the primary judge, to give any advice to his client, Charben.

“The scheme of Clause 44”, I do not need to take you to that.

GUMMOW J:   And in the last sentence of 184.

MR WEBSTER:   Again, your Honour, yes:

if the representations found to have been made by Report 19844C were known to be false, it could have done anything other than complete the purchase of Lot U.

But more importantly, your Honour, he then deals with all the questions of reliance, conclusions as to reliance, and can I take your Honour over to 191?  Your Honours will see the last sentence of that:

If that statement were false and it were misleading or deceptive for EES to provide Report 19844C to Caltex, it may have been possible to conclude that there was a contravention of s 52 of the Trade Practices Act.  However, that was not the case as pleaded by Charben and it was not the case about which the primary judge made findings . . . 

193     Thus, there could be no complaint about a finding that Report 19844C made a representation that Lot U was suitable for residential land use in accordance with the relevant Guidelines.  However, there has been no complaint about a failure to find that there was a representation that the hydrocarbon pollution of Lot U had been reduced to a level that would permit use ‑ ‑ ‑

GUMMOW J:   Yes, thank you, Mr Webster.  We do not need to hear you any more.  Anything more, Mr Taylor?  I think we have reached the end of the drama.

MR TAYLOR:   Your Honour, in relation to what is – if I go to 192 it seems to be just a summary of what is said, that his Honour found – if your Honour goes to 188, I am sorry, at the foot of 188, the Full Court make a finding that his Honour made no finding as to whether 19844C made the representation about the site being suitable for residential land use.  That is their finding and I have taken your Honour both in our summary of argument and in the submissions to those passages where his Honour expressly makes that finding, for example, that the trial judge expressly makes such a finding, contrary to what the Full Court says.  In paragraph 101 on page 28, his Honour says:

There is no doubt in my mind that, in deciding to purchase each of the allotments, Charben relied on the statements made in the respective reports, especially the statement in the Conclusion of each report as to the suitability of land –

going to the second one, which is the second report –

‘for residential landuse’ -

So the trial judge made a finding about a statement or representation about residential land use suitability and when the Full Court find that he made no such finding in 188, they were ignoring, in our respectful submission, passages such as the one quoted, and other passages, to take another quick example, at page 38, line 30.  This is the trial judge again:

Report 19844C stated Lot U was ‘suitable for residential land use’.

So we say to the extent that this analysis at pages 150 and 151 relies upon the suggestion that the trial judge never made a finding about that pleaded representation, we say it is plainly wrong and that has impacted upon the administration of justice in the particular case.

GUMMOW J:   Thank you.  We do not need to call on you, Mr Darke.

In application S40 of 2006 there are insufficient prospects of success to warrant a grant of special leave.  Special leave is refused with costs. 

In application S43 of 2006 we see no ground that would attract a grant of special leave and we are not satisfied that the interests of justice would require such a grant.  Accordingly, No S43 of 2006 is dismissed with costs.

AT 2.01 PM THE MATTERS WERE CONCLUDED