James, K.F.D. v Australia & New Zealand Banking Group Ltd

IN THE FEDERAL COURT	1
OF AUSTRALIA	1

WESTERN

AUSTRALIA

No. WA G106 of 1984

DISTRICT

REGISTRY

)

GENERAL	DIVISION	1
B E T W E E N :

Applicants

and

AUSTRALIA AND NEW ZEALAND BANKING

GROUP LIMITED	.-.
1.

First Respondent

and

TAMAR "ENT

PTY. LTD.

Second Respondent

and	I.
JOHN WELLS

Third Respondent

CORAM: TOOHEY J.

2 December 1985

RULING ON "NO CASE" SUBMISSION

SECOND AND THIRD RESPONDENTS

The applicants concluded their case in the third week

this hearing.

Mr. Owen-Conway, counsel for

the second and third

respondents

then

said

that

wished

make

a "no case"

submission on behalf of his clients.

He argued that his clients

should not be put to

an election whether to call evidence before

making the submission.

I reserved that question over night but,

when th? Court resumed next

mornlnq. counsel sald that he dld not

wlsh to pursue what was descrlbed as the prelimlnary submission. that the Court hear and deal wlth the no case submission.

It seemed to

me, and

I said

so to counsel, that some

difficulties might arise in the event of the second and third

respondents,

but

not

the

first

respondent,

making

such

submission. I suggested that evidence presented by the first

respondent might tend to falsify whatever decision was given on

the no case submission. The first respondent declined to join in

the submission; indeed its stance

has been that it wishes to give

evidence to answer the allegations made against it. Counsel for

the second and third respondents recognized that difficulties	L
! .

might arise but submitted that this

only strengthened his clients'

argument for having their submission dealt with before the first

respondent went into evidence. Counsel

for the applicants did not

contest the entitlement of the second and third respondents to

have their submission determined before the case

for

the first

respondent began; counsel expressly conceded their right

to such a

:1-

course. But

Mr. Templeman, counsel for the applicants, contended

that by making the submission the second and third respondents

lost not only the right to call evidence but the right

participate any further in the hearing including the making of

final address.

Mr.

Owen-Conway challenged this contention. In

his submission, his clients were entitled, in the event of their

no case submission being overruled, to cross-examine the first

respondent's witnesses and to make

fmal address.

_ .

! L

. '

J .

Oversimplifpmq what

was a thorouqh

and

considered

submission, the

argument of the second and third respondents was

that the evidence adduced by

the applicants was insufficient to

establish a case in law against either of them. Alternatively,

. -

they sald. If there was sufficient evidence it was

so palpably

inadequate and unsatisfactory that the case should be "withdrawn"

against them. They further argued that, on any view of the

evidence, the applicants' claim against the second and third

respondents was barred by reason of the time limit contained in

sub-s.82(2) of the Trade Practices Act 1974.

a gloss on that

submission, counsel accepted that, in

far as the applicants

relied in the alternative upon

5.87 of the Trade Practices Act,

I	limitation period was directly applicable. But he submitted that the Court ought, in the exercise of its discretion, apply the limitation period of 3 years in sUb-s.82(2) with the consequence

3 .

that	he	applicants'	claim	against	he	second	and	third	,
! "

respondents must fail in any event. Counsel for the applicants	I I
responded at length to these arguments.	..

adjourned

hearing

was

The

overnight

enable Mr. Owen-Conway to complete submissions begun in reply to

those

the

applicants.

However,

when

the

hearing

resumed

Mr.

Templeman said that he wished to withdraw his

submission that, in the event of their no case submission being

overruled,

the

second

and

third

respondents

should

not

permitted any further participation in the hearing. He said that

he withdrew the submission in the light

certain authorities

that had been referred to him by Mr.

Ipp, counsel for the first

respondent, authorities to which

I shall refer later in these

I . 1

reasons. In essence the basls

the withdrawal

was that where

there 1 s	more than one respondent. it is not appropriate	for the	! :
i

Court to entertain a no case submission unless made on behalf of

all respondents. Counsel

f o r

the applicants maintained, as an

alternative approach, that

for reasons already advanced in his

earlier argument, the no case submission should be rejected

I .

because there was evidence upon which the Court might find the

second and third respondents liable in damages to the applicants

and that there were no matters of law which should lead the Court

to conclude that in any event the applicants' claim against those

respondents must fail.

Mr.	Owen-Conway then proceeded with his submissions in

reply, in the course of which he	argued that in the particular	I	->
I

circumstances of this case the Court should deal with

h s no case

submission, notwithstanding the absence of any such submission by

the first respondent.

I then

permitted

Mr.

Ipp to

address as to

the

appropriateness of the Court dealing with the second and third

respondents'

case

submission

the

absence

such a

submission by the first respondent. It will be necessary to deal later with the various authorities referred to by Mr. Ipp, but the

crux of his argument was that

at this stage the Court should not

be concerned with an analysis of the strength of the applicants'

case against the second and third respondents. He said that since

there was no suggestion that

a no case submission by

the first

respondent would succeed, the Court should not compartmentalize

the hearing but should look at the evidence as

a whole. To this

5 .

end, he said.	c o u n s e l for	the second	and	third respondents were	4.
1,
I .. L ,
1 ,

entitled

cross-examine

any witnesses he called and were

entitled to make a final

address; indeed, since they had not

I =

called evidence, they might

address last.

It was implicit in this

I.,'

submission

that

the

second

and

third

respondents

could

not

withdraw their election

to call no evidence.

Counsel for the applicants then endorsed what had been

said by counsel for the first respondent, with this qualification.

He	said that it was still open to the Court to find that "the

applicants have proved affirmatively in their case that it is

impossible to impute blame to the second

third respondents,

then clearly the no case submission should succeed". That is a

matter to which

I shall return later.

Against this background of somewhat shifting stances,

propose

consider

first

whether

the

second

and

third

respondents' no case submission should be rejected in

any event as

inappropriate when there is

a respondent who has made no such

submission.

The very term no case submission was described

v. Johnson (1953) 70 W.N. (N.S.W.) 302 at p.304 as "an

unfortunate phrase to use in civil proceedings". Street

C.J., who

delivered the judgment

of the Full Court, referred to ambiguity in

the expression for it may mean that there is no evidence of the

elements necessary to be proved

or that there is some evidence of

those elements but that it is so weak or

unsatisfactory that it

should not be accepted. Again it may mean that by reason of some

question

law

the

case

cannot

succeed

any

event.

The

criticism by the Court was made in the context of an argument

5 .

whether, In proceedinss in a Court of Petty Sessions for recovery

possession

of premises, the lessee was required to elect

whether or not

he would go into evldence before making a no case

submission. And of course there is much authority on this matter,

both in the context of civll and criminal proceedings. But that

pomt does not arise here for the second and third respondents

expressly elected not to give evidence.

When a no case submission has an evidentiary foundation

rather than

basis in some proposition of law, there is no

logical inconsistency in the Court holding that there is a case to

answer but thereafter dismissing the claim. The question for the

Court on the no case submission is whether there is evidence upon

which the

Court

could

enter

judgment

for

the

applicant.

rejection of

a no case submission does not carry with it an

inevitable consequence that the claim must succeed. Where

a judge

is sitting with a jury, the distinction between the arbiter of law

and the arbiter of fact is of course apparent. If the judge

decides that there is

a case to

go to the jury, it is then

for the

jury to uphold

or dismiss the claim. While there is no logical

inconsistency in rejecting a no case submission and thereafter

rejecting the claim, the distinction is a fine one when a judge

sits without a jury, given that the standard of proof is on the

balance of probabilities and that inferences may be drawn by

reason of the respondent's failure to adduce evidence. It is for

these reasons, I think, that in Alexander	v. Ravson C19361 1 K.B.
l69 at 178 the Court of Appeal said:

"Where an action is	being heard by a jury it is, of
course, quite usual	and often very convenient at the

cnd oil

the case of the plaintiff

_ _ _ for the opposing

party to ask for the ruling of the judge whether there

is any case to

go to

the ?ury, who are the

only

judges

of fact. It also seems to be not unusual in the Kings	I	-
Bench Dlvlslon to ask for a similar ruling in actions

trled by

a judge alone. We think, however. that this

1s highly Inconvenient. For the ludge in such cases is

also the judge

fact and we cannot think

it right

that the judge of fact should be asked to express any

oplnion

upon

the

evidence

until

the

evidence

completed. Certainly no one would ever dream of asking

a jury

at the end of

plaintiff's case to say what

verdict they would be prepared to give if the defendant

called no evidence, and we fail to say why

a judge

should be asked such a question in cases where

he and

not	a jury is the judge that has to determine the

facts.

such cases we venture to think that the

responsibility

for

not

calling

rebutting

evidence

should be upon the other partys' counsel and upon no

one else".	.. .	. . l
I ,

These remarks seem to have sounded the death knell for

any election by defendants in civil actions. If

defendant

elects not

call evidence, the judge

has

before him all the

evldence

upon

which

he is

called

make

a decision.

Any

distinction between the role

of the judge in ruling on a no case

submission and the role

of the judge as an arbiter of fact becomes

largely illusory. (This of course is in the context of a

no case

submission based on the evidence; such

a submission based

on a

proposition of

law may be in quite

a different position.)

The

inconvenience of

not putting the defendant to

an election is

apparent. If the judge's decision

on the no case submission is

I ! '

upset on appeal, there must inevitably be

a r trial.

Where there is more than one respondent, the arguments

against allowing one respondent to make

no case submission are

powerful and they have been endorsed by courts on a number

occasions. Hummerstone

v. Learv C19211 2 K.B. 664 concerned a

clam for damages against the owners of two motor vehicles, in one

8 .

whl ch t h e

plalntiffs were passengers. At the close of the

plaintlffs'

case, counsel for the owner of the lorry

submitted

that there was no evidence against his client and the County Court

judge accepted this submission and dismissed that defendant from

the action. The case then proceeded against the owners of the car	L .
whose witnesses threw all the blame on the driver of the lorry. The judge found that the driver of the car was not negligent and entered judgment for the owner of that vehicle also. In their

~udgment

ordering that there be

a new trial, Bray and Lush JJ.

said at

pp.666-667:

"In our opinion the learned judge took

an entirely wrong

course in allowing Leary to be dismissed from the

action. Instead of trying the case as

one entire case,

which it

was, and hearing

all the evidence before

arriving at a conclusion, he

divided it into what we

may call compartments and tried each separately, the

result of which was that it was never really tried at

all.	He treated it as a claim against Leary alone and

a claim against Foster alone, overlooking the fact that

the plaintiffs, as they were entitled to do under the

Rules, were alleging that either Leary or Foster or

both were responsible for the accident. When once

state of facts were proved, as it was, from which the reasonable inference to be drawn was that prima facie

one

not

both drivers had been negligent, the

plaintiffs were entitled to call on the defendants for

an answer, and the proper time

at which to decide

whether on the evidence one defendant or the other

defendant or both the defendants were liable was	at the
close of the whole case".

I -

Hummerstone v.

Learv was followed by the Full Court

New South Wales

Menzies v.

Australian Iron and Steel Ltd.

t '

(1952) 52 S.R. (N.S.W.)

62.

That case concerned a claim for

damages by a widow against the employer of her deceased husband and against the driver of a motor vehicle. The plaintiff claimed

recover

against

defendants

everally

or, in

the

alternative,

jointly.

the

plaintiff's

case,

counsel for r;he employer applled

f o r a verdict bv direction but

I , '

the trlal Judge sald that the application was premature. but that

it might

be renewed later, and that counsel was free to call or

not call evldence

as he thought fit. That practice was approved

by the Full Court which also gave its endorsement to Hummerstone

v. Learv and to

a passage in Glanville Williams on Joint Torts and

Contributorv Neqliqence p.59 in the following terms:

"In actions against concurrent tort feasors there is a

further rule that if the plaintiff shows that prima

facie one if not both of

the defendants was negligent,

the judge should not at the close of the plaintiff's

evidence non suit him against one defendant only, but

should

hear

the

whole

case

before

coming

to a

decision".

In the present case the first respondent has not made

no case submission and

so the applicants have not been concerned

to show a prima facie case against that respondent. But

I can see

no difference in principle to the procedure to

be followed where

one respondent impliedly acknowledges	a prima facie case against
him.

Hummerstone v.

was

applied

Wilson

J. in

the

Supreme Court of New Zealand in Mobil Oil

New Zealand Limited

Matthew Park Limited C19653

N.Z.L.R. 803.

It is true that in Menzies

v. Australian Iron and Steel

m. the court attached some importance to the language of

s .2

the Law Reform (Miscellaneous Provisions) Act 1946

(N.S.W.) and

that in Mobil Oil

New Zealand Limited

v. Matthew Park Limited the

court placed reliance

on r.45

of the Maqistrates' Courts Rules

1548. bor-h c~t wnicn permlt a plaintiff wno is

in doubt as to the

person from whom he 1 s entitled to redress

to loin two or more

defendants "so

that the question as to which is liable, and to

I ..

what extent, map be determined as

between all parties" (emphasis

added). But it is equally clear that in each case the court

rested its decision on a broader foundation of convenience and

justice to the parties. The same may be said of Hummerstone v.

- see in particular Bray

J. at 667.

In pesterczuk v.

Mortimore (1965) 115 C.L.R.

140 at 147

Kitto J. referred with apparent approval to Hummerstone

v. Learv,

commenting:

_ .

'I...

accordingly, where the evidence adduced for the

plaintiff raises

a prima facie inference that the

plaintiff's injuries resulted from negligence

on the

part of one or other or both of the defendants, it is	I.
an error to dismiss one defendant from the action at

the close of the plaintiff's case

on the ground that as

the evidence stands it is more probably the other

defendant who was negligent.

The

proper course is to

await the conclusion of the whole of the evidence then

consider whether the collision was due to negligence on

the part of one only or to negligence on the part of

each".

Trade Practices Commission v. Georqe Weston Foods Ltd.

(No. 2 ) (1980) 43 F.L.R.

55 concerned proceedings

the Trade

.	i
I..

Practices Commission against several defendants. alleging conduct

in breach of

s.45 of the Trade Practices Act. At the conclusion

of the plaintiff's case the defendant sought

o move for judgment

the ground that there was no case to answer. Davies

requlred them to elect whether

or not to adduce evidence. saying

at p.61:

"Tn my vxew. !ustice would best be done by calling upon

the defendants to elect whether o not to call evidence

so that the submlssion of no case to answer. if it is	,,-.
made. proceeds upon the whole of the evidence which is	,-
I .
to be taken into account in this action" (again, emphasls added).

I reaard that decision

as an endorsement by a judge of the Federal

L . .

Court of the general principles to which I have referred. The

present

clam does not assert that the three respondents acted

~ointly.

The first and second respondents are sued by reason of

. L.

alleued

misleadinu or deceptive

conduct,

the

misleading

deceptive conduct not being precisely the same in each case. The

third respondent's liability is based upon

s.75B

of the Trade

Practices Act. There is in addition

a claim in negligence against

the first and second respondents, again not based

the same

facts, though there may be evidence common to both. Nevertheless

the principles enunciated in the decisions mentioned above are in

my view equally applicable to the present case. The second and

third respondents submit that there is no case to answer against

them. The first respondent makes no such submission and must be

taken,

for

the

purposes

of the

present

applicatiion,

acknowledge that it has a case to answer. The second and third

respondents

say

nothing

the

case

against

the

first

respondent. In those clrcumstances

I am of the opinion that, in

far as the no case submission has

an evidentiary basis,

should not entertain

it.

The first respondent proposes to call

evidence, the second and thlrd respondents have elected not

to do

so and it will be for the Court to determine at the end of the

first respondent's case, and in the light of the final addresses,

whether the applicants have made good any cause of action against

any of the respondents. It is implicit in this view that the

12.

second ana tnlra respondents must

cermltted to make a final

address. They can hardly be precluded from doinu

since all

they have souaht

to do' is to aruue that they have no case to

answer. Equally

I am

of the opinion that the second and

third

respondents are entitled to cross-examine any witnesses called by

the

first

respondent.

As a

general

proposition,

that

cross-examination would not constitute the calling of evidence

though it is conceivable that an issue may arise

as to whether an

answer to a particular question or the production of

a document to

a witness may constitute adducing evidence. These are matters on

which

express no view until they arise, if they

do,

for

decision.

The question of a non-suit did not arise,

no doubt

because it was accepted by counsel (and rightly so,

in my view)

that such a procedure is not available in the Federal Court. The

history

of non-suits was expounded by Windeyer J. in Jones

Dunkel (1958-1959)

101 C.L.R. 298, at

pp.323-331.

It is a

consequence of the view I have taken that I do

not propose to follow either

Mr. Owen-Conway or Mr. Templeman in

his analysis of the evidence adduced

to date.

In my view that is

precisely the exercise that

I should not embark upon, having

regard to the admonitlons in the authorities which have been

mentioned.

The time to consider the evidence is at the end

of the

hearing. Equally

I am not prepared to accede to

Mr. Templeman's

suggestion that

I might consider whether the evidence proves

affirmatively that it is impossible to impute blame to the second

or third respondent.

The reasons that have led me to reject an

t ,

13.

analysls of

the evldence to date for the purpose of the no case

submission persuade me that

I should re~ect

the invitatlon.

It is not, I think, a necessary consequence of thls vlew

that I should not entertain the no case submission in

so far as

involves questions of law though in

far as those questions

cannot be divorced

from findings of fact, the principles just

enunciated principles would apply.

For reasons that were developed in some detail during

the course

of Mr. Owen-Conway's submission, the second and third

respondents argued that any cause of action against them under

s.82 of the Trade Practices Act accrued

at the commencement

of any

loss or damage suffered by the applicants

as a result of any

conduct by the second respondent in breach of

s.52 of the Act and

that,

the

light

the

applicants'

case

as pleaded

and

conducted, that loss or damage began at the latest

in February

1981. Because the application was not lodged in the Federal Court

until 13 November

1984, the second and third respondents contended

that any claim against them is statute barred. Mr. Owen-Conway

made further submissions as to the consequence of the Court

holding, as he said it should, that it had no jurisdiction

entertain the claim under

s.82

against the second or third

respondents. The consequence,

he said, was that there was no

jurisdiction in the Court to deal with the applicants' claim in

negligence against the second respondent.

far as the

applicants sought relief under s.87

of the Trade Practices Act,

counsel

argued

that

the

limitatlon

period

under

sub-s.82(2)

should, as a matter

of discretion, be applied with the same

1 .

i ‘	I	1.1.
I

consequences far che applicants. Mr. Owen-Conwav dld not submit that, sa long as there 1 s a claim against the second respondent under 5.82 for breach of s.52 and a clalm against the third

respondent: under

s.75B. the Court could not entertain the claim in

negligence against the second respondent.

The arguments of

Mr.

Owen-Conway and Mr. Templeman on

these matters touched basic questions relating to the jurisdiction

of the

Federal Court, at

any

rate

its

accrued

or pendent

jurisdiction. But none of these questions arise unless it be held

that

applicants’

claim

against

second

and

third

respondents under the Trade Practices Act is statute barred:

so it

is to that matter that

I must turn.

Counsel

for the second and third respondents accepted

’ .

that any cause of action the applicants had by reason of

contravention of

5.52 of the Trade Practices Act did not accrue

until they had suffered

loss

or damage, for their cause of action

arose under

s.82.

Loss or damage may occur some time after

contravention. See Arcadi v. Colonial Mutual Assurance Societv

Limited C19841 A.T.P.R.

40-473. However, they contended that any

loss or damage claimed to have been suffered by the applicants

must have commenced

on one or other

of the following dates:

1. On 15 July 1980, when the applicants executed a contract for

the purchase of “Bibiking“

15.

2 . Fourteen days after 18 July 1980, beina the period withln

which

the

third

respondent,

actmu on

behalf of the

second

respondent, said that

he could procure

a. loan.

I. .

3 . On 11 August 1980, when the applicants paid a further deposit of $25,000.

4. On 31 August 1980, when the applicants paid a further $71,775

I	I	I	and lost the right to withdraw	f om the contract.
i	I

5. By February

1981, when the applicants effected settlement of

the purchase of "Bibiking" and at the same time borrowed

$1,250,000 from the first respondent

to make the final

payment to the vendor of "Bibikinq" and executed various

securities in order to obtain that loan.

.	i
I . .

On 26 April 1985 I gave judgment refusing

an application

by the second and third respondents to strike out those paragraphs

of the statement of claim relating to them. The second and third

respondents

appealed

against

that

decision.

The

appeal

was

dismissed and in the course of its reasons (Tamar Manasement Ptv.

m. v.

James, unreported decision delivered 20

September 1985)

the Full Court said that the proper construction of sub-s.82(2)

was at present "very much an open question". At p.9 the Court

said:

If	it were necessary, it could be added that, in

addition to the question of the proper interpretation of s.82(21 already mentioned, it would seem that a further question will arise as to its application to

the facts of the present case having regard to the

circumstance that the security given to

the bank

was

l ,

16.

based

upon a

b l l l line facilitv which provided for

roll-overs at varlable rates of Interest. This raises

the point, one

of construction. whether in February

1981. the respondents and the bank entered into one

entlre contract in that connection

or whether they

embarked upon a

fresh transaction on each occasion the

bill was kolled (see

K.D.

Morris & Sons Proprietary

Limited (In Liquidation) v. Bank of Oueensland	(1980)
146 C.L.R. 165)".

The Full Court was at pains to point out that the

question of limitations under sub-s.82(2)

is not some abstract

question of law but a matter to be determined on the evidence.

am not to be taken

suggesting that the submissions of the

second and third respondents in this regard ignored questions of

fact. Clearly they did not. But the point is that, until the

relevant facts have been found, it is not possible

reach a

L '

conclusion concerning the operation of

sub-s.82(2). For instance,

counsel for the applicants submitted that although his clients

incurred a

substantial liability when they executed the security

documents, they also acquired a substantial asset. There was no

immediate

loss;

it was as time went by that the applicants'

indebtedness to the first respondent rose through the rollover of

commercial bills. Had the value of the mortgaged properties

remained

the

same,

said

counsel,

the

applicants'

equity

redemption in those properties would have diminished. However

there was evidence, in particular from Robert James Ferguson

licensed valuer, that property values rose between

1980 and 1982.

It followed, in counsel's submission, that no loss may have been

sustained

the applicants until some time after

1982 when

property values fell.

i t	17.
I

i	On this matter the applicants and the first respondent
l	I

I	are	of	a common mind, for counsel for the first respondent
I

foreshadowed a submission that the applicants did not sustain

damage until after February

1981.

Mr. Ipp submitted that the

applicants did not suffer loss or

damaae until their liabilities

under the securities exceeded the value of the secured assets. He

made it clear that the first respondent was not abandoning its

plea of limitations under sub-s.82(2). But its primary submission

was that the applicants did not suffer loss untll

a time which,

whenever it occurred, fell within a period of 3 years preceding

the commencement of these proceedings. While that may seem a

somewhat curious submission for the first respondent to make, the

point of it is that in

the first respondent's submission the

applicants were the authors

of their own misfortune for they could

have

sold

their

farming

land

and

avoided

any

loss.

This

submission was not developed at any length and

so I say no more

about it except that it points up the danaers of seeklna to

resolve,

case

submission

the

second

and

third

respondents, questions which bear directly upon the position

the flrst respondent and which may well be the subject

of evidence

by that respondent.

Mr. Owen-Conwap also made an attack

upon

those

paragraphs of the statement of claim relating to his clients, on

the qround that a pleading that the second respondent represented

that it "was able to obtain" or "was able to procure" a loan for

the first applicants was a representation as to the future and was

not capable of constituting misleading

or deceptive conduct within

5.52.

Once again, this is a matter which cannot be divorced

from

, I

18.

the evidence. In a Judicature Act system of pleading the question

whether a statement of claim discloses

a reasonable cause of

action was put this way by the Privy Council in Mutual Life and

Citizens Assurance Co. Ltd.

v. Evatt (1970) 122 C.L.R. 628 at

1	I	p.631:
I

"The question is thus different from that which arises under the modern system of pleading in England upon an

application to strlke out

a statement of claim as

disclosing no reasonable cause of action. There the

question is whether it would be open to the plaintiffs

upon the pleadinqs	to prove facts of the trial which
would constitute a	cause of action. See Dorset Yacht

Q.	v. Home Office C1970l A.C. 1004".

Recently,

v. Australasian

Recvclers (W.A.) Pty.

m. (unreported decision, delivered 31 October 1985) I discussed

the concept of misleading and deceptive conduct in the context of

representations made by a respondent which have some future

element about them and the relevance of the respondent's state

mind at the time the representations were made.

I do not propose,

at this stage of the proceedings, to add to what

I said there. It

1 s enough, for present purposes, to say that within the framework

of	the statement of claim it is possible for the applicants to

adduce evidence capable of constituting misleading

or deceptive

conduct on the part of the second respondent and of establishing

facts from which conduct on the part of the third respondent

within s.75B of the Trade Practices Act may be inferred. Whether

they

do so

is a matter to be determined in the light of the

totality of the evidence.

I	As to the operation of s.87 of the Trade Practices Act,

the question whether the time limit

sub-s.82(2) should be

19.

applied is very much a question of discretion,

as the Full Court

emphasised in Fenech v. Sterlina (1984) 57 A.L.R. 98.

1	I
I	L .
,.
_.
I	I
I
i
I	!.
I
l i
i	I
l
I
!
I

1.	I reject the no case submission made on behalf	of the second
and third respondents.

when no similar submission	has been	made concerning the	first
respondent.

amounts to adducinq evidence by them is	a	matter to be
considered If and when it arises.

[1985] FCA 599

2 Dec 1985