Juneau Pty Ltd v Kayford Pty Ltd

[1991] HCATrans 220

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl4 of 1991

B e t w e e n -

JUNEAU PTY LTD

Applicant

and

KAYFORD PTY LTD

First Respondent

ROBINSON CARR PTY LTD

Second Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

McHUGH J

Juneau 1 9/8/91

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 AUGUST 1991, AT 12.59 PM

Copyright in the High Court of Australia

MR J.R. BIRMAN:  May it please Your Honours, I appear for

the applicant. (instructed by Birman & Ride)

MR N.W. ODES:  May it please Your Honours, I appear for the

second respondent. (instructed by Parker & Parker)

MASON CJ: Yes, Mr Birman.

MR BIRMAN:  Your Honours would have before you submissions

on behalf of the applicant.

MASON CJ: Yes, we have those.

MR BIRMAN: Essentially, Your Honours, the applicant's case

is that the decision of the majority in the Full

Court of Western Australia as to the application of

section 52 of the Trade Practices Act is, with

respect, wrong, and special leave is sought on the

basis of that decision.

MASON CJ: Mr Birman, the problem is, of course, that it is

unusual for this Court to intervene in proceedings

at this stage where the Full Court has made an

order which will result in the matter going for

trial. Your submission is, of course, that there

has been a misinterpretation in the majority

judgment of what this Court said in Hornsby

Building Information Centre and in York v Lucas,

but after all, if the matter goes to trial the

facts can be properly found and the principles

enunciated by this Court in those two decisions can

be explored and applied. So why should be grant

special leave at this stage?

MR BIRMAN: Well, Your Honour, the applicant's answer to

that is, of course, this is a matter that would go

to trial in the district court, and as things stand
if it did go to trial the appeal court decision of

the Full Court would, of course, remain on foot.

We say that that decision is clearly in conflict

with the established - - -

MASON CJ: But the District Court judges no doubt can read

what we said and one would hopefully expect them to

apply what we said.

McHUGH J: Yes, he is bound what we say; not what the

Full Court has said.

MR BIRMAN:  I accept that, Your Honours, but nevertheless

our submission is that the Full Court's decision -

the appeal decision does cause confusion which is

best resolved quickly.

MASON CJ: Yes, but as I said to you, I think it is a

mistake to attribute too much importance to what is

said by judges in an intermediate Court of Appeal

Juneau 2 9/8/91

when dealing with an appeal against an order for

summary judgment, in circumstances where the judges

are sending the matter back for trial.

MR BIRMAN:  Well I cannot take that aspect of it any

further, Your Honours, but I think you understand

the crux of the application.

MASON CJ: Oh yes, certainly. There is no doubt that your

outline of submissions and what you have said make

it clear that the ground on which you are seeking
special leave is that you take the view that the

majority in the Full Court have wrongly understood

what this Court said in the two decisions that have

been referred to. Now is there anything else you

want to put in support of the special leave

application?

MR BIRMAN: Well Your Honours, I do not think that I can

usefully take the matter any further. I think the

substantive position is clear on the submissions

and I am sure Your Honours understand the point

that I make.

MASON CJ: Yes. Well thank you, Mr Birman. The Court need

not trouble you, Mr Odes.

We are not persuaded that this case involves

any question of public importance which would

warrant the grant of special leave to appeal. The

effect of the majority judgment of the Full Court

of the Supreme Court is that the action will

proceed to trial in the District Court when the
principles of law discussed in Hornsby Building

Information Centre Pty Ltd v Sydney Building

Information Centre, 140 CLR 216 and York v Lucas,

158 CLR 661, can be applied to the facts as found.

It is true that it is arguable that some of

the observations made in the majority judgment do

not entirely accord with what was said in this

Court in those two cases, particularly with respect

to the absence of an element of intent to mislead

or deceive in a cause of action arising under

section 52 of the Trade Practices Act, 1974, but we
do not consider that this constitutes a reason for

granting special leave to appeal at this stage of

the proceedings in the district court.	The
application is therefore refused.

MR BIRMAN:	May it please the Court.
MR ODES:	I ask for costs of the application.

Mr Birman, you cannot oppose an order for costs,

can you?

Juneau 3 9/8/91

MR BIRMAN:  No, Your Honour.

Very well. The application is refused with

costs.

AT 1.05 PM THE MATTER WAS ADJOURNED SINE DIE

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Juneau 4 9/8/91