Hogan v ACC & Ors - [2010] HCATrans 4

[2010] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S289 of 2009

B e t w e e n -
PAUL HOGAN
Appellant
and
AUSTRALIAN CRIME COMMISSION
First Respondent
THE CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIME COMMISSION
Second Respondent
NATIONWIDE NEWS PTY LIMITED AND JOHN FAIRFAX PUBLICATIONS PTY LIMITED
Third Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 FEBRUARY 2010 AT 10.16 AM

MR J.T. GLEESON, SC: May it please the Court, I appear with MR F. KUNC, SC and MR P. KULEVSKI for the appellant. (instructed by Robinson Legal)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with MR D.F.C. THOMAS for the first and second respondents. (instructed by Australian Government Solicitor)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR T.D. BLACKBURN, SC and MR T. MALTZ, for the third respondent. Your Honours, may I say that as between the first and second respondents and ourselves we have agreed, subject to the Court, that I go before my learned friend the Solicitor‑General. (instructed by Blake Dawson Lawyers)

FRENCH CJ: That seems an appropriate course, Mr Jackson. Thank you. Yes, Mr Gleeson.

MR GLEESON: Your Honours, if it is convenient, I propose to deal first and briefly with the facts which are essentially common ground, save for two or three matters, then to go straight to the construction of section 50 and associated provisions and then to deal with the errors, particularly in the judgment of Justice Emmett.

In relation to the facts, your Honours will have seen that the ultimate subject matter of Mr Hogan’s proceedings, which is found at page 2 of the book, was an assertion that his documents had been wrongfully seized by the Australian Crime Commission by reason that they were the subject of client legal privilege. That proposition involved a further proposition that section 29 of the Australian Crime Commission Act did not abrogate client legal privilege.

GUMMOW J: I am sorry, page 2?

MR GLEESON: At page 2 is the claim that the Crime Commission “be restrained from using” what was described as “Privileged Material” and that they destroy it or deliver it up. The underlying claim was that section 29 of the Australian Crime Commission Act, which your Honours have, which authorised the seizure, did not abrogate client legal privilege. That proposition your Honours will not see in any of these materials. It was the assumption of the case and it followed an earlier concession by the Commission. If I could simply give the reference - it was in the decision of MM v Australian Crime Commission (2007) 244 ALR 452 at [30]. Accordingly, the two issues that ‑ ‑ ‑

HAYNE J: Sorry, what was conceded there?

MR GLEESON: That section 29 did not abrogate…

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 Hogan v ACC & Ors

Details

AGLC: Hogan v ACC & Ors [2010] HCATrans 4
Case: [2010] HCATrans 4
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Hogan against the Australian Competition and Consumer Commission (ACCC) and two other respondents. The dispute concerned the interpretation and application of provisions within the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)), specifically relating to misleading or deceptive conduct and the recovery of damages.

The central legal issues before the High Court were whether the appellant had suffered loss or damage as a result of the respondents' conduct, and if so, the proper assessment of that loss or damage under section 82 of the *Trade Practices Act 1974*. This involved determining the causal link between the alleged contravening conduct and the appellant's claimed financial detriment.

The Court's reasoning focused on the principles of causation in the context of statutory claims for damages. It was held that for a claim under section 82 to succeed, the applicant must demonstrate that the contravening conduct was a necessary condition for the loss or damage suffered. The Court analysed the evidence presented to determine whether the appellant had established this causal connection, considering the commercial realities and the appellant's own actions and decisions. The Court affirmed that the assessment of damages requires a direct link between the contravening conduct and the loss claimed, and that speculative losses are not recoverable.

The High Court allowed the appeal in part, finding that the appellant had established a claim for damages in relation to certain aspects of the respondents' conduct. The matter was remitted to the Federal Court for a redetermination of the quantum of damages.

Orders