Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd

[1985] FCA 278

Re: KEEN MAR CORPORATION PTY LTD
And: LABRADOR PARK SHOPPING CENTRE PTY LTD; HERSFIELD DEVELOPMENTS CORPORATION
PTY LTD and JONES LANG WOOTTON (A FIRM)
Re: TREVOR McDOUGALL COOMBER, GREGORY DESMOND KEILY and CAMERON GREGORY
GODDEN
And: LABRADOR PARK SHOPPING CENTRE PTY LTD; HERSFIELD DEVELOPMENTS CORPORATION
PTY LTD and JONES LANG WOOTTON (A FIRM)
Re: COLIN JAMES PALLESON and BETTY RUTH PALLESON
And: LABRADOR PARK SHOPPING CENTRE PTY LTD; HERSFIELD DEVELOPMENTS CORPORATION
PTY LTD and JONES LANG WOOTON( A FIRM)
Nos. QLD G119, G144 and G145 of 1984
Trade Practices
(1985) AIPC para 90 - 232

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.

CATCHWORDS

Trade Practices - s.52 claim against natural person - reliance on s.75B - not enough to show servant of respondent within s.75B.

Limitation of Actions - action for damages under general law - claim under s.87(1A) of Trade Practices Act.

Practice - striking out pleading.

Trade Practices Act, ss.52, 53A, 75B, 87(1A)

HEARING

BRISBANE
#DATE 28:6:1985

JUDGE1

In each of these matters the third respondent applies by notice of motion that the proceedings against it be stayed or dismissed on the ground that no reasonable cause of action is disclosed by the statement of claim, that the proceedings are frivolous or vexatious and that the proceedings are an abuse of process. Alternatively an application is made that the statement of claim be struck out on similar grounds.

1. The statements of claim in the principal applications are rather similar to one another and it is convenient to begin with the first in time, No. G119 of 1984 in which Keen Mar Corporation Pty Ltd is the applicant.

2. The applicant Keen Mar Corporation Pty Ltd alleges by its pleading that the first and second respondents are trading corporations. No such allegation is made against the third respondent whose name is given as "Jones Lang Wootton (a firm)". Counsel for the third respondent explained that one of the points sought to be taken rested upon the unincorporate status of the third respondent but, in response to enquiries by me, said that the firm name is registered "as being carried on by some individuals; that is in Queensland". He also said that "Jones Lang Wootton is a national firm - is a name which is employed nationally by different people". As I understood counsel's explanation, one firm carries on business nationally (including, presumably, in the State of Queensland) and the other carries on business only in the State of Queensland; the former, but not the latter, includes a corporation amongst its members.

3. It is undesirable that time and money be wasted on deciding legal points which, because of lack of definition of the facts, may turn out to be academic. If there are in fact two firms with the same name, one national and the other operating only in Queensland, the first thing ordinarily would be to clarify the identity of the third respondent, lest the proceedings dissolve in confusion. Nevertheless, it appears to me to be a practical course to proceed to consider whether the applicant can have a cause of action against the third respondent, on the hypothesis that it is the Queensland firm which is sued and that it neither is nor includes a corporation. I will summarise the main allegations.

4. The amended statement of claim in G119 of 1984 says that the first respondent, which I shall call "Labrador" owned land on which it and the second respondent ("Hersfield") built a shopping centre. The allegation is that the third respondent ("Jones") was the agent of Labrador and Hersfield in relation to the leasing of premises within the shopping centre. The applicant alleges that it took a six-year lease of a shop and that in the course of negotiations leading up to that Jones, on behalf of Labrador and Hersfield, sent a floor plan of the proposed shopping centre and that it relied on the floor plan in executing the lease. The applicant also says that it got from Jones a brochure prepared by Hersfield, making representations about the shopping centre, its access, exposure and so forth. Paragraph 16 of the statement of claim says that all the respondents, in relation to the brochure, engaged in misleading or deceptive conduct, in contravention of ss.52 and 53A of the Trade Practices Act.

5. There is a distinct set of allegations made concerning what is called a Certificate of Classification made under by-laws pursuant to the Building Act 1975-1981. The applicant alleges that because there was no relevant Certificate of Classification, it was unlawful to occupy the premises. Amongst other allegations about the Certificate of Classification, it is set up that Jones on behalf of Labrador and Hersfield sent circulars advising the applicant of the opening date and that it was "imperative that all tenants were fully operational by that date". The applicant says the respondents owed a duty to the applicant to inform it that its occupation would be illegal and that the failure to do so was a breach of ss.52 and 53A of the Trade Practices Act. Alternatively, the applicant says that there was a duty to disclose the illegality on 17 December 1981 when Jones wrote on behalf of the other respondents a certain letter from which the applicant inferred that its occupation would be lawful. Next, it is said that a failure on the part of all the respondents to tell the applicant about a letter written by the local authority concerning the Certificate of Classification constituted misleading or deceptive conduct. There is an allegation that the respondents owed a duty to the applicant to inform it of the contents of that letter.

6. It is not as clear as it might be, whether there is any claim against the third respondent other than under the Trade Practices Act. The application claims against each of the respondents damages for negligence, but there are not allegations in the pleading to support that and it seems right to assume, as did counsel for the applicant Keen Mar, that the case is brought under the Trade Practices Act.

7. Counsel for the applicants relied on s.75B of the Trade Practices Act, saying that Jones is liable under paragraph (c) as a party to the contravention alleged. Reference was made to Yorke v. Lucas (1983) 49 ALR 672 in which the Full Court considered the operation of s.75B(c). At p 682 the Court said:-
   
   

"The words 'party to the contravention' necessarily connote, in our view, that a person assents or

concurs in the conduct which constitutes the

contravention. He must therefore know or be aware of the essential facts or matters which must be

proved to establish the contravention ... In our opinion, the words 'party to the contravention'

refer to a person who participates in, or assents to the contravention in question."

More recently, Neaves J. considered the operation of s.75B in Maisey v. Mudgeeraba Village Estates Pty Ltd (1985) ATPR 40-569. His Honour had there to consider whether a director of an incorporated real estate agency was liable under the section and although there was some evidence (referred to at p 46615) that she was connected with the matters complained of, the conclusion was that she was not liable, being not aware of the representations made.

1. In the first statement of claim, that of Keen Mar Corporation Pty Ltd, wherever Jones is mentioned, the firm is described simply as "the third respondent" and no allegation is made that it acted by or through any named person. Presumably the pleading is so drawn because the pertinent allegations against Jones relate to the firm's having communicated with the applicant in writing or having failed to carry out an alleged duty to speak. Ordinarily, there can be no objection to pleading in that way, but a cause of action under s.75B(c), as interpreted in Yorke v. Lucas (supra), has as its foundation an assertion that an identified person or persons has been involved in a contravention. That is not specifically alleged, nor reasonably to be deduced, from the statement of claim. I return to this subject below.

2. I pause to dispose of a separate argument, viz. that some of the causes of action are barred. It is not necessary for the purposes of this judgment to explain the details of the facts, so far as time limitation is concerned. It is enough to mention that, in some respects, the events complained of occurred just outside the three-year limit mentioned in s.82(2) of the Trade Practices Act. It was argued that for the purposes of that provision time ran from the conduct complained of. Under the general law, that is not so, with respect to actions for damages for negligence: Pirelli General Cable Works Ltd. v. Oscar Faber and Partners (a firm) (1983) 2 AC 1. The House of Lords there reaffirmed the view that a cause of action in damages for negligence accrues when the damage comes into existence. Secondly, as was very fairly pointed out by Mr Jackson on behalf of Jones, the Full Court has decided in Fenech v. Sterling (1984) ATPR 40-496 that the Court's powers under s.87(1A) of the Trade Practices Act, which may well be availed of in such a case as this, are not subject to any explicit time limit. Thirdly, it is not the practice to strike out a statement of claim on the ground that the claim is statute-barred.

3. Mr Jackson made other criticisms of the pleadings. For example, he pointed out that although the applications mention damages for negligence and breach of contract there is in the pleadings no clear allegation of negligence and no allegation of breach of contract, against Jones. Again, he urged the view that the claims made in respect of the Certificate of Classification seem to be implausible, at least insofar as it is said that damage flowed. None of these supplementary points, as they may fairly be called, need be dealt with, for I am satisfied that none of them are of a kind which could form the whole or part of the ground for striking out the proceedings or the pleadings.

4. I return to the s.75B problem. In the statements of claim in the second and third cases, brought by T.M. Coomber and Others (G144 of 1984) and C.J. and B.R. Palleson (G145 of 1984) some of the allegations against Jones set out that things were done by named servants or agents. For example, in G144 of 1984 one Wakeham is alleged to have made representations on behalf of Jones, by sending a letter. These named servants or agents are not parties. The contention has to be that Jones is liable because, for example, Wakeham made a representation. But, in the absence of an allegation that Jones is incorporated, that cannot succeed. If it is sought to place the cases on the footing that Jones is liable under s.75B, it is my view, on the authority of Yorke v. Lucas (supra), that the representations must be sheeted home to the partners in Jones, themselves; it is not enough to succeed under s.75B, to show that a party to the contravention acted for the third respondent Jones as agent or servant, the members of the third respondent not being themselves said to have been involved. It follows that in none of the three cases is there a pleading properly raising a case against Jones under s.75B.

5. I might have, in the exercise of my discretion, nevertheless declined to accede to Jones' application, on the basis that interlocutory skirmishes about legal points, in advance of ascertainment of the facts, are to be discouraged. I have, however, decided that it is unfair to Jones, and cannot help the applicants, to let the matters continue in their present form. In coming to my conclusion, I am influenced by the fact that the applicants' chances of proving a case under the Trade Practices Act against Jones appear to be slim.

6. There remains the complication of the ambiguity of the name "Jones Lang Wootton", referred to above. If, as Mr Jackson's instructions suggest, there is a national firm of that name including a corporation, it may be that the applicant would desire to re-plead its case directly, so to speak, under ss.52 or 53A, to fix the corporation with liability. I do not say, of course, that that can be done; I merely wish to give the applicants time to take stock of their position. They may wish, having appropriate instructions, to re-plead under s.75B. To enable such possibilities to be considered, the order will be one dismissing the applications as against the third respondent unless within 14 days the applicant applies to amend the pleading, as against the third respondent.

7. In summary, the legal view on which I have decided the case is that where suit is brought against a natural person, in reliance on s.75B of the Trade Practices Act, it is not enough merely to show that the respondent was a principal on whose behalf acts were done falling within the section; the principal himself must be involved in the contravention.