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Gray v Sirtex Medical Ltd

Gray v Sirtex Medical Ltd

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FEDERAL COURT OF AUSTRALIA
Gray v Sirtex Medical Limited [2011] FCAFC 40

Citation: Gray v Sirtex Medical Limited [2011] FCAFC 40

Appeal from: University of Western Australia v Gray (No 28) [2010] FCA 586

Parties: BRUCE NATHANIEL GRAY v SIRTEX MEDICAL LIMITED

File number: WAD 185 of 2010

Judges: BENNETT, GILMOUR & GORDON JJ

Date of judgment: 18 March 2011

Catchwords: DAMAGES – assessment of damages from cross-claim in relation to misleading or deceptive conduct in breach of s 10 of the Fair Trading Act 1987 (WA) and a breach of duties as a director, including statutory duties under ss 180 and 181 of the Corporations Law – Federal Court of Australia Act 1976 (Cth) s 43 and Federal Court Rules 1979 (Cth) O 62 r 6 – whether legal costs incurred in defending the primary proceedings are recoverable as damages in the cross-claim – whether legal costs incurred in prosecuting the cross-claim are recoverable as damages in the cross-claim

Legislation: Corporations Law (Cth)
Fair Trading Act 1987 (WA)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 1979 (Cth)

Cases cited:
Anderson v Bowles (1951) 84 CLR 310
Avenhouse v Hornsby Shire Council (1998) 44 NSWLR l
Barnett v Corporation of Eccles [1900] 2 QB 423
Berry v British Transport Commission [1962] 1 QB 306
Cockburn v Edwards (1881) 18 Ch D 449
Grainger v Williams [2009] WASCA 60
Grundy v Lewis (1995) 62 FCR 567
Hammond v Bussey (1888) 20 QBD 79
Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
Lonrho Plc v Fayed (No. 5) [1993] 1 WLR 1489
McCourt v Cranston [2009] WASC 56(S)
Penn v Bristol & West Building Society [1997] 1 WLR 1356
Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674
Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 1100
Ritchie v British Insulated Callender’s Cables (Aust) Pty Ltd (1960) 77 WN(NSW) 299
Ross v Caunters [1980] 1 Ch 297
Seavision Investments S.A. v Evennett & Clarkson Puckle Ltd (The “Tiburon”) [1992] 2 Lloyd’s Rep 26
Seavision Investments S.A. Norman Thomas Evennett and Clarkson Puckle Ltd (The “Tiburon”) [1992] 2 Lloyd’s Rep 26
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
University of Western Australia v Gray (No 20) (2008) 246 ALR 603
University of Western Australia v Gray (No 21) (2008) 249 ALR 360
University of Western Australia v Gray (No 28) (2010) 185 FCR 335

McGregor on Damages, 18^th ed (Sweet & Maxwell, London, 2009)

Date of hearing: 23 February 2011

Date of last submissions: 15 March 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 49

Counsel for the Appellant: DF Jackson QC with GKJ Rich

Solicitor for the Appellant: Goldsmith Lawyers

Counsel for the Respondent: JD Elliott SC with EJC Heerey & JS Emmett

Solicitor for the Respondent: Yeldham Price O’Brien Lusk

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 185 of 2010

ON APPEAL…

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: [2011] FCAFC 40
Decision Date: 18 March 2011

CaseChat Overview and Summary

The case of Gray v Sirtex Medical Ltd involves a dispute over the assessment of damages arising from a cross-claim related to misleading or deceptive conduct in breach of section 10 of the Fair Trading Act 1987 (WA) and a breach of duties as a director, including statutory duties under sections 180 and 181 of the Corporations Law. The Federal Court of Australia was tasked with determining the recoverability of legal costs incurred both in defending the primary proceedings and in prosecuting the cross-claim.

The central legal issues addressed by the court pertained to the extent to which legal costs incurred in defending the primary proceedings could be recovered as damages in the cross-claim. Additionally, the court examined whether legal costs incurred in prosecuting the cross-claim were recoverable as damages in that cross-claim. The court had to navigate the applicable provisions of the Federal Court of Australia Act 1976 (Cth) section 43 and Federal Court Rules 1979 (Cth) O 62 r 6 to ascertain the principles guiding the recovery of such costs.

The court ruled that the appeal was to be allowed in part. It held that the legal costs incurred in defending the primary proceedings were recoverable as damages in the cross-claim, aligning with the principles established in prior case law. However, it determined that the legal costs incurred in prosecuting the cross-claim were not recoverable as damages in that cross-claim. This nuanced decision reflects the court's careful consideration of the statutory and equitable principles relevant to the recovery of legal costs in such contexts.

The court ordered that by 4:00pm on 1 April 2011, the parties should bring in a minute of orders to give effect to the court's reasons. This directive underscores the practical aspect of the judgment, ensuring that the court's findings are implemented effectively and promptly.

Orders

Orders of the court

1. The appeal be allowed in part.

2. By 4:00pm on 1 April 2011, the parties bring in a minute of orders to give effect to the reasons of the Court.

Note:

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Gray v Sirtex Medical Limited [2011] FCAFC 40
Appeal from:		University of Western Australia v Gray (No 28) [2010] FCA 586
Parties:		BRUCE NATHANIEL GRAY v SIRTEX MEDICAL LIMITED
File number:		WAD 185 of 2010
Judges:		BENNETT, GILMOUR & GORDON JJ
Date of judgment:		18 March 2011
Catchwords:		DAMAGES – assessment of damages from cross-claim in relation to misleading or deceptive conduct in breach of s 10 of the Fair Trading Act 1987 (WA) and a breach of duties as a director, including statutory duties under ss 180 and 181 of the Corporations Law – Federal Court of Australia Act 1976 (Cth) s 43 and Federal Court Rules 1979 (Cth) O 62 r 6 – whether legal costs incurred in defending the primary proceedings are recoverable as damages in the cross-claim – whether legal costs incurred in prosecuting the cross-claim are recoverable as damages in the cross-claim
Legislation:		Corporations Law (Cth) Fair Trading Act 1987 (WA) Federal Court of Australia Act 1976 (Cth) Federal Court Rules 1979 (Cth)
Cases cited:		Anderson v Bowles (1951) 84 CLR 310 Avenhouse v Hornsby Shire Council (1998) 44 NSWLR l Barnett v Corporation of Eccles [1900] 2 QB 423 Berry v British Transport Commission [1962] 1 QB 306 Cockburn v Edwards (1881) 18 Ch D 449 Grainger v Williams [2009] WASCA 60 Grundy v Lewis (1995) 62 FCR 567 Hammond v Bussey (1888) 20 QBD 79 Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 Lonrho Plc v Fayed (No. 5) [1993] 1 WLR 1489 McCourt v Cranston [2009] WASC 56(S) Penn v Bristol & West Building Society [1997] 1 WLR 1356 Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 1100 Ritchie v British Insulated Callender’s Cables (Aust) Pty Ltd (1960) 77 WN(NSW) 299 Ross v Caunters [1980] 1 Ch 297 Seavision Investments S.A. v Evennett & Clarkson Puckle Ltd (The “Tiburon”) [1992] 2 Lloyd’s Rep 26 Seavision Investments S.A. Norman Thomas Evennett and Clarkson Puckle Ltd (The “Tiburon”) [1992] 2 Lloyd’s Rep 26 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 University of Western Australia v Gray (No 20) (2008) 246 ALR 603 University of Western Australia v Gray (No 21) (2008) 249 ALR 360 University of Western Australia v Gray (No 28) (2010) 185 FCR 335 McGregor on Damages, 18^th ed (Sweet & Maxwell, London, 2009)
Date of hearing:	23 February 2011
Date of last submissions:	15 March 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	49
Counsel for the Appellant:	DF Jackson QC with GKJ Rich
Solicitor for the Appellant:	Goldsmith Lawyers
Counsel for the Respondent:	JD Elliott SC with EJC Heerey & JS Emmett
Solicitor for the Respondent:	Yeldham Price O’Brien Lusk

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 185 of 2010