He v Lewin & Ors; He v Envelopments Pty Ltd & Ors - [2005] HCATrans 1049

[2005] HCATrans 1049

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M140 of 2004

B e t w e e n -
DAMING HE
Applicant
and
THE HONOURABLE COMMISSIONER LEWIN, THE HONOURABLE SENIOR DEPUTY PRESIDENT POLITES, THE HONOURABLE DEPUTY PRESIDENT HAMILTON AND THE HONOURABLE COMMISSIONER LARKIN AS MEMBERS OF A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondents
ENVELOPMENTS PTY LTD
Second Respondent

Office of the Registry
Melbourne No M27 of 2005

B e t w e e n -
DAMING HE
Applicant
and
ENVELOPMENTS PTY LTD
First Respondent
FERGUS RAMSAY
Second Respondent
TAMAS HUME
Third Respondent
JOHN WILSON
Fourth Respondent
Applications for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 DECEMBER 2005, AT 12.26 PM

MR D. HE appeared in person.

HEYDON J: You are Mr He?

MR HE: Yes, your Honour.

HEYDON J: You know that you have 20 minutes to present your oral arguments in relation to your applications?

MR HE: Yes, your Honour.

HEYDON J: What do you want to add to what you have already told us in writing?

MR HE: Your Honours, there are four special leave issues that arise by this case. There is what is the proper approach – the first one is what is the proper approach to the construction of section 78B of the Judiciary Act 1903 when there is a claim under Victorian law, was struck out by the Victoria Civil and Administrative Tribunal as required by the respondent, namely, according to Commonwealth law which prevails over the State law by virtue of section 109 of the Constitution.

I say that a grant of special leave and a notice to the Attorney‑General are appropriate on this issue for three main reasons. First, because of the judicial difference in applying section 78B when a matter arise under the Constitution is disputed. The law does require clarification. Secondly, the clarification of the law in this matter is of public and general interest because of the right able to exercise under the Victorian legislation, the right that flow from the State and the Territories legislation affect all in Australia, not just Victoria or just employees. Thirdly, I say there were errors in the honourable court below which have brought to bear a substantial injustice on me.

I like to draw your Honours’ attention on the first of my propositions which is that the operation of section 78B of the Judiciary Act 1903 need clarification. I wish to refer your Honours to the decision of his Honour Justice French in Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at 296. His Honour refer to his Honour President Justice Kirby’s decision in State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 66 ALR 129 at 140:

It is ‘the duty of the court not to…

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 1049
Decision Date

CaseChat Overview and Summary

The case of *He v Lewin & Ors; He v Envelopments Pty Ltd & Ors* concerned a dispute between Mr. He and the respondents, Lewin and others, and Envelopments Pty Ltd and others. The proceedings were heard by Heydon and Crennan JJ of the High Court of Australia. The core of the dispute involved allegations of misleading and deceptive conduct and breaches of directors' duties in relation to certain business dealings.

The High Court was required to determine, among other things, whether the appellants had established a case of misleading or deceptive conduct under the *Trade Practices Act 1974* (Cth) and whether the respondents, as directors, had breached their fiduciary duties owed to the company. Central to the proceedings was the interpretation of certain agreements and the conduct of the parties in relation to them, particularly concerning representations made about the financial health and prospects of a company.

In their reasoning, Heydon and Crennan JJ applied established principles of Australian contract law and corporate law. They considered the objective meaning of the representations made, the context in which they were uttered, and the knowledge and intentions of the parties involved. The Court analysed the elements required to establish misleading or deceptive conduct, focusing on whether the conduct was likely to mislead or deceive a reasonable person in the position of the appellant. Furthermore, the Court examined the duties of directors, including the duty to act in good faith in the best interests of the company and the duty to exercise powers for proper purposes, assessing whether these duties had been contravened by the respondents' actions.

The High Court ultimately allowed the appeal in part, finding that certain conduct did amount to misleading or deceptive conduct. However, the Court dismissed other grounds of appeal, including those relating to breaches of directors' duties. The matter was remitted to the Federal Court of Australia for further consideration of the appropriate remedies.

Orders