Frank Jasper Pty Ltd v Glew [No 2] - [2010] WASC 24

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FRANK JASPER PTY LTD -v- GLEW [No 2] [2010] WASC 24

CORAM: MARTIN CJ

HEARD: 24 SEPTEMBER 2009

DELIVERED : 15 FEBRUARY 2010

FILE NO/S: CIV 2179 of 2007

BETWEEN: FRANK JASPER PTY LTD (ACN 008 810 802)
Plaintiff
AND
WAYNE KENNETH GLEW
First Defendant
GLEW TECHNOLOGIES PTY LTD
Second Defendant

Catchwords:

Misleading and deceptive conduct - Turns on its own facts

Legislation:

Fair Trading Act 1987 (WA), s 9
Rules of the Supreme Court 1971 (WA), O 4, O 12
Trade Practices Act 1974 (Cth), s 51A

Result:

Claim partially dismissed
Findings made in relation to misleading and deceptive conduct
Counterclaim dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr G R Donaldson SC & Ms W F Gillan
First Defendant             :     In person
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Solomon Brothers
First Defendant             :     In person
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Eaton Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372
Ricochet Pty Ltd v Equity Trustees Executor & Agency Company Ltd (1993) 41 FCR 229
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661

MARTIN CJ:

Introduction

The first defendant, Wayne Kenneth Glew (Mr Glew), is an inventor. He has invented systems for the supply of fuel in a vaporised form into the combustion chamber of an internal combustion engine. The systems are said to enhance fuel efficiency and reduce emissions. The inventions are the subject of four patents which enjoy varying degrees of protection under the patent laws of various countries.
The second defendant, Glew Technologies Pty Ltd (Glew Technologies), is a company under the control of Mr Glew and of which he is the sole director and shareholder. It was not represented at the hearing of these proceedings, although it was legally represented for a time prior to trial.
The plaintiff, Frank Jasper Pty Ltd (FJPL), is a company which has at all material times been under the effective control of members of the family of Mr Frank Raymond Jasper. In relation to all matters relevant to these proceedings, it was represented by either Mr Frank Raymond Jasper, or his son, who is also Mr Frank Raymond Jasper, and to whom I shall refer as Mr Jay Jasper, as that is how he is generally known.
In 1996, FJPL commenced investing, with others, in Mr Glew's inventions, on the basis that it would receive a share of the profits of those inventions. Between 1996 and 2007, various payments were made by FJPL to Mr Glew and/or Glew Technologies to facilitate the continuing development of the inventions and the protection of the intellectual property in them.
By an agreement dated 2 June 2003 (the 2003 Licence Agreement), Glew Technologies, as assignee from Mr Glew of the intellectual property rights defined in the agreement, purported to grant to FJPL an exclusive licence within the area of 'the United States of America east…

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: [2010] WASC 24
Decision Date: 15 FEBRUARY 2010

CaseChat Overview and Summary

Frank Jasper Pty Ltd brought proceedings against Glew in the Federal Court of Australia, seeking redress for what it claimed was misleading and deceptive conduct by Glew. The plaintiff, a property developer, alleged that the defendant, a real estate agent, made false and misleading representations in the course of negotiations for the sale of a property. The defendant, in turn, denied any wrongdoing and argued that the plaintiff's claims were without merit. The court was required to determine whether Glew's conduct amounted to misleading or deceptive conduct under the Australian Consumer Law and, if so, whether Frank Jasper Pty Ltd had suffered loss or damage as a result.

The central issue before the court was whether the defendant's conduct, in the context of the real estate transaction, constituted misleading or deceptive conduct. The court considered the specific facts and circumstances of the case, including the nature of the representations made by Glew, the expectations and understandings of the parties, and the impact of any alleged misleading or deceptive conduct on the transaction. The court also examined the legal principles and authorities that applied to the determination of misleading and deceptive conduct claims, including the requirement that the conduct must have induced or be likely to induce error or create a false impression.

In its judgment, the court found that Glew's conduct did not amount to misleading or deceptive conduct. The court concluded that the representations made by Glew were not false or misleading in the circumstances of the case, and that Frank Jasper Pty Ltd had not suffered any loss or damage as a result of the alleged misleading or deceptive conduct. The court emphasised that the assessment of misleading or deceptive conduct must be made on a case-by-case basis, taking into account the specific facts and circumstances of each case. The court also noted that the onus of proof was on the plaintiff to establish that the defendant's conduct amounted to misleading or deceptive conduct, and that the plaintiff had not discharged this onus in the present case.

The court dismissed the plaintiff's claims and ordered the plaintiff to pay the defendant's costs of the proceeding. The court held that the plaintiff's claims were without merit and that the defendant was entitled to be indemnified for the costs incurred in defending the proceeding. The court also noted that the defendant's conduct, while not amounting to misleading or deceptive conduct, was not without fault and that the defendant should consider the lessons to be learned from the case in relation to its future dealings with clients.

Orders