COUNSEL: (CA 40832/02 & CA 40833/02) John C Sheahan SC/M Christie (Appellant) A J Meagher SC/I M Jackman SC (Respondents) (CA 40838/02) A J Meagher SC/I M Jackman SC (Appellants) John C Sheahan SC/M Christie (Respondents) (CA 40840/02) A J Sullivan QC/H Stowe (Appellants) John C Sheahan SC/M Christie (Respondents)
SOLICITORS: (CA 40832/02 & CA 40833/02) Blake Dawson Waldron (Appellant) Atanaskovic Hartnell (Respondents) (CA 40838/02) Atanaskovic Hartnell (Appellants) Blake Dawson Waldron (Respondents) (CA 40840/02) Gillis Delaney Brown (Appellants) Blake Dawson Waldron (Respondents)
CATCHWORDS: PRACTICE AND PROCEDURE - Pleading referring to s 51A of the Trade Practices Act 1974 (Cth) - Particulars giving specificity to the alleged representation - Utility of trial judge's finding where proceeded on an incorrect assumption - Question of fact involving credibility findings - Where credibility findings made, reliance not to be determined on a Gould v Vaggelas (1983) 157 CLR 215 presumptive basis - Lack of authority must be pleaded to prevent surprise - TRADE PRACTICES - Whether representation with respect to a future matter - Approach in Miba Pty Ltd v Nescor Industries Group Pty Ltd (1966) 141 ALR 525 not adopted - Relevance of expression of belief - Proper approach to s 51A of the Trade Practices Act 1974 (Cth) - Whether representation was misleading and deceptive - Where no evidence of reasonable grounds for the representation - Whether parties had relied on the representation - Indirect causation under s 82(1) of the Trade Practices Act 1974 (Cth) - Relief under s 82 of the Trade Practices Act 1974 (Cth) -…
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
AGLC
Digi-Tech (Australia) Ltd v Brand [2004] NSWCA 58
Case
[2004] NSWCA 58
Decision Date
CaseChat Overview and Summary
The Full Court of the Federal Court of Australia considered an appeal from a decision of a single judge. The appeal concerned a dispute between Digi-Tech (Australia) Ltd and Brand, involving allegations of misleading and deceptive conduct under the *Trade Practices Act 1974* (Cth) and issues relating to withholding tax.
The court was required to determine, among other things, whether certain representations made by the appellant constituted misleading or deceptive conduct, particularly in light of section 51A of the *Trade Practices Act 1974* (Cth), which deals with representations with respect to future matters. The court also considered the proper approach to assessing reliance on such representations, the relevance of a party's belief, and whether there were reasonable grounds for the representations made. Additionally, the court examined the definition of a royalty for the purposes of withholding tax.
The court noted that the trial judge's findings were made on an incorrect assumption and that credibility findings, where made, should not be determined on a presumptive basis. The court emphasised that the proper approach to section 51A required consideration of whether there was evidence of reasonable grounds for the representations. The court also commented on the length and complexity of the trial judgment, observing that prolixity can obscure essential issues and make the reasoning process difficult to follow, thereby increasing costs and hindering comprehension.
At this stage, the Full Court did not make final orders. Instead, it directed the parties to file, within 21 days, a list of orders that were common ground, a minute of proposed orders for disputed matters (including costs), and written submissions supporting their respective contentions.
Orders
Orders of the court
The parties should, within 21 days, file a list of orders that are common ground, a minute of proposed orders in regard to those orders that are in dispute (including costs), and written submissions in support of their respective contentions.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
In the circumstances, we do not propose to make any orders at this stage. The parties should determine whether there is any common ground as to the orders that should be made. The parties should, in any event, within twenty one days, file a list of orders that are common ground, a minute of proposed orders in regard to those orders that are in dispute, and written submissions in support of their respective contentions.A final comment: overly lengthy judgments There is a noticeable increase in extremely complex and sophisticated litigation. This is one such case. The increased complexity of litigation and the great number of issues that in some cases require determination have led to some very lengthy judgments. There are other cases where the issues are less complex but the judgments are nevertheless very long, and unnecessarily so. This should be discouraged. Prolixity is an enemy of comprehensibility and, indeed, cogency, This case was a labyrinth of facts and issues, and the task of writing a judgment was an extremely difficult one. Many of the issues resolved by his Honour are not the subject of appeal. Nevertheless, while genuine tribute must be paid to the judge for the industry and dedication manifest from his extensive reasons, it has to be said that their length and form have not facilitated the discernment and understanding of the significant issues in the appeal. The judgment sets out in great detail the submissions advanced by the parties and the evidence of many of the witnesses. Some of this material relates to peripheral matters. The mass of these references tends to obscure the essential issues that have to be decided and makes the reasoning process difficult to follow. The reasoning process itself is overly discursive, and clear and precise findings are at times difficult to detect. In addition, findings on some important matters have not been made at all, but in fairness to his Honour, in many instances that is likely to have been because of the particular focus attributed to the issues by the parties in presenting their respective cases. All these matters loomed large in the argument on appeal. In Customs and Excise Commissioners v A [2003] 2 All ER 736 Schiemann LJ said (at 753-754, [82]-[83]:“A judge’s task is not easy. One does often have to spend time absorbing arguments advanced by the parties which in the event turn out not to be central to the decision making process. Moreover the experienced judge commonly has thoughts about avenues which it might be crucial to explore but which the parties have not themselves examined. It may be his duty to explore these privately in order to satisfy himself whether they are relevant. Having done the intellectual work there is an understandable temptation to which many of us occasionally succumb to record our thoughts for posterity in the judgment or to refrain from shortening a long first draft.However, judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; and (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice.”