Harrington v Lowe - [1995] HCATrans 349

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S39 of 1995

B e t w e e n -
MAUREEN FRANCIS HARRINGTON
Applicant
and
KEVIN GRAHAM LOWE

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 NOVEMBER 1995, AT 10.20 AM

MR D.M.J. BENNETT, QC: May it please the Court, I appear with my learned friend, MR G. RICHARDSON, for the applicant. (instructed by Keddies)

MR M.D. BROUN, QC: I appear for the respondent, your Honours. (instructed by Adrian Twigg & Co)

BRENNAN CJ: We will hear from Mr Broun first, Mr Bennett.

MR BENNETT: If the Court pleases.

MR BROUN: Your Honours, the essential character of an order to conference under Order 24 of the Family Law Rules is that the statute requires it to occur. That is section 79(9) of the Family Law Act which, effectively, says you cannot have a property order made unless there is an Order 24 conference held first. So, the first feature is that, effectively, it is compulsory.

Order 24 of the rules then gives effect to section 79(9) by saying this is what is to happen and this is how that statutory requirement is to be given effect to. Now, it is therefore different from, in basic character as the Full Court has held, an ordinary negotiation where parties who have some dispute endeavour to negotiate with each other to reach a compromise.

BRENNAN CJ: Section 79(9) does not make it different.

MR BROUN: Your Honour, it does in this sense, that it is a negotiation but a negotiation that is required as a prerequisite of getting a hearing.

BRENNAN CJ: That is right.

TOOHEY J: All that means is that a conference shall take place. Nothing in the section defines the nature of the conference or the implications to be drawn from it or the results of it.

MR BROUN: Your Honour, it is then a matter, I suppose, of policy. If the parties cannot have a hearing without such a conference and if, indeed, the court provides a registrar to assist in the conference, then the rules should specify what the impact of that conference is.

BRENNAN CJ: Patently, the purpose of a conference is to reach an agreement.

MR BROUN: Indeed, your Honour, yes, or to see whether an agreement may be reached.

BRENNAN CJ: Yet, on your argument, the rules have been enacted in such a way as to preclude a court discovering whether an agreement has been reached.

MR BROUN: No, your Honour, not at all. No, I would not accept that. Your Honours, if we look, for example, at the case the Full Court referred to at some length of Johnston, during the course of the conference a document is written out and signed and, indeed, during the course of that same day orders were made in accordance with that…

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.

Continue reading Harrington v Lowe

Details

AGLC: Harrington v Lowe [1995] HCATrans 349
Case: [1995] HCATrans 349
Decision Date

CaseChat Overview and Summary

In *Harrington v Lowe*, the High Court of Australia considered a dispute between the appellant, Harrington, and the respondent, Lowe. The case concerned the interpretation and application of certain provisions within the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)) in relation to alleged misleading or deceptive conduct.

The central legal issues before the High Court were whether the respondent had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of section 52 of the *Trade Practices Act 1974* (Cth). This involved determining the nature of the representations made by the respondent and assessing their impact on the relevant audience.

The Court's reasoning focused on the objective test for misleading or deceptive conduct, which requires considering whether the conduct, viewed as a whole, was capable of leading a person into error. The judges examined the specific statements and circumstances surrounding the representations to ascertain their likely effect on a reasonable member of the class of persons to whom they were directed. The Court ultimately found that the respondent's conduct did not contravene section 52 of the Act.

Orders