Fish & Anor v Solution 6 Holdings Ltd & Ors - [2005] HCATrans 896

[2005] HCATrans 896

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S206 of 2005

B e t w e e n -
NICHOLAS TERRENCE FISH
First Appellant
NISHA NOMINEES PTY LIMITED
Second Appellant
and
SOLUTION 6 HOLDINGS LIMITED
First Respondent
SOLUTION 6 PTY LIMITED
Second Respondent
NEVILLE BUCH
Third Respondent
NEIL GAMBLE
Fourth Respondent
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
Fifth Respondent

Office of the Registry
Sydney No S207 of 2005

B e t w e e n -
PETER JAMES BATTERHAM
First Appellant
MAYLORD EQUITY MANAGEMENT PTY LTD
Second Appellant
and
QSR LIMITED
First Respondent
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
Second Respondent

Office of the Registry
Sydney No S209 of 2005

B e t w e e n -
OLD UGC INC
First Appellant
UIH ASIA/PACIFIC COMMUNICATIONS INC
Second Appellant
AUSTAR ENTERTAINMENT PTY LIMITED
Third Appellant
CTV PTY LIMITED
Fourth Appellant
STV PTY LIMITED
Fifth Appellant
and
THE INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION
First Respondent
ROBERT McRANN
Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 NOVEMBER 2005, AT 12.01 PM

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR S.J. BURCHETT, for the appellants in Fish. (instructed by Clayton Utz)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR B.J.A. SHIELDS, for the respondents in Fish. (instructed by Deacons)

MR R.C. KENZIE, QC: May it please the Court, I appear with my learned friend, MR M.J. KIMBER, SC, for the appellants in Batterham. (instructed by Turner Freeman)

MR D.E. GRIEVE, QC: May it please your Honours, I appear with MR J.M. MILLER for the first respondent in Batterham. (instructed by Pryor Tzannes & Wallis)

MR G.J. HATCHER, SC: May it please the Court, I appear with my learned friend, MR C.S. WARD, for the appellants in Old UGC. (instructed by Thomson Playford)

MR J.N. WEST, QC: May it please the Court, I appear with my learned friend, MR J.D. SMITH, for the second respondent in Old UGC. (instructed by Harmers Workplace Lawyers)

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, may I mention a matter as to time, first of all. Your Honours, we have arrived at an arrangement whereby I will take an hour and a quarter, Mr Hatcher, when it comes to his turn, an hour and a quarter, the other parties an hour and then three‑quarters of an hour for the replies in‑chief. That would, on the ordinary Court’s hours, finish at 4.15 tomorrow.

GLEESON CJ: Thank you, Mr Jackson. We promise not to interrupt you.

MR JACKSON: Your Honour, some promises are of imperfect obligation, of course. Your Honours, as the Court will have seen, this case is concerned with…

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: [2005] HCATrans 896
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Full Federal Court concerning allegations of misleading and deceptive conduct under the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). The appellants, Mr. and Mrs. Fish, alleged that Solution 6 Holdings Ltd and its related entities engaged in such conduct by representing that a software product, "Solution 6 Practice Management System," was Y2K compliant when it was not. The dispute centred on whether the representations made by Solution 6 were false or misleading, and whether the appellants suffered loss or damage as a result.

The primary legal issues before the High Court were whether the representations made by Solution 6 regarding the Y2K compliance of its software constituted misleading or deceptive conduct in contravention of section 52 of the *Trade Practices Act 1974* (Cth). The Court also had to determine whether the appellants had established that they suffered loss or damage by reason of any such contravention, and if so, the extent of that loss.

The High Court analysed the nature of the representations made by Solution 6 and the evidence presented regarding the software's actual Y2K compliance. The Court considered the meaning of "misleading or deceptive conduct" in the context of commercial representations and the onus of proof on the appellants to demonstrate a causal link between the alleged contravention and their loss. The Court applied established principles of statutory interpretation and the law of misleading or deceptive conduct, focusing on the objective assessment of the representations made and the subjective impact on the consumers.

The High Court dismissed the appeal, finding that the appellants had failed to establish that the representations made by Solution 6 were misleading or deceptive, or that they had suffered loss or damage as a consequence of any such conduct.

Orders