Digi-Tech (Australia) Ltd v Brand

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.