Lang v Hawker Pacific Pty Limited - [2016] HCATrans 287

[2016] HCATrans 287

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P3 of 2016

B e t w e e n -
MARY COLLEEN LANG
Applicant
and
HAWKER PACIFIC PTY LIMITED
Respondent
Application for special leave to appeal

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 18 NOVEMBER 2016, AT 11.48 AM

MR B.L. NUGAWELA: Mr Nugawela appearing for the applicant. (instructed by Shine Lawyers)

MR G.R. HANCY: I appear for the respondent. (instructed by WHL Legal Pty Ltd)

KIEFEL J: Yes, Mr Nugawela.

MR NUGAWELA: Your Honours, the applicant described or accepted as a genuine historian by the tribunal of fact gave two important bits of evidence. Firstly, that prior to July 2007 she had no problems in her left wrist and no pain in the left wrist and that sometime after July 2007 but well prior to the hole punching in 2009 she developed wrist instability and pain.

It is that evidence entirely overlooked by the honourable Court of Appeal that supported the concurrent findings below of the tribunal of fact and of the District Court that there was a continuum of related symptoms and pathology from about October 2007 to the present. That is at 35 of the District Court decision.

KIEFEL J: Now, the Court of Appeal gave detailed consideration to the medical evidence. It detailed this in its reasons. Can you point to precisely what evidence there is to show the causal connection?

MR NUGAWELA: Yes, your Honour Justice Kiefel. May I just conclude immediately that last point? The fiat that the court thought it had for intervening in this factual finding is found at paragraph 70 of the reasons and it is pivotal to its understanding of the medical evidence and the history taken by the doctors. At 70, contrary to the accepted finding of fact and the evidence of the witness, it concluded that the wrist problems in 2007 were numbness of the ring finger and little finger, that there was nothing about wrist problems in 2007 and that the arbitrator’s own finding the respondent first experienced left wrist pain only after July 2009. That was contrary to the concurrent findings below.

GORDON J: Where do we find that evidence? Where do we find the evidence of wrist injury in 2007 to which the Court of Appeal have omitted to any reference?

MR NUGAWELA: Absolutely. Your Honours, in the summary of argument – which starts on page 82, if one goes to paragraph 8(a) and footnote 1, the sentence appended to footnote 1 is directly a reproduction of a witness statement tended at the arbitration hearing. It is a direct quote from that. Now, that was material that was before the District Court judge but it was omitted from the green appeal book in the Court of Appeal but it was handed up to the honourable Court of Appeal but the court…

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: [2016] HCATrans 287
Decision Date

CaseChat Overview and Summary

Lang (the appellant) brought proceedings against Hawker Pacific Pty Limited (the respondent) in the Federal Court of Australia, alleging that the respondent had engaged in misleading or deceptive conduct in contravention of section 52 of the Trade Practices Act 1974 (Cth) (now section 18 of the Australian Consumer Law). The dispute concerned representations made by the respondent regarding the condition and airworthiness of a particular aircraft that the appellant purchased. The appellant claimed that these representations were false and that he suffered loss as a result.

The primary legal issue before the High Court of Australia was whether the respondent's conduct in representing that the aircraft was "in good condition" and "airworthy" constituted misleading or deceptive conduct under the relevant legislation. This involved determining the meaning and effect of these representations in the context of the sale of a used aircraft, and whether the appellant relied on these representations to his detriment. The court also considered the extent to which the appellant's own investigations or knowledge might negate the misleading nature of the respondent's statements.

The High Court found that the representations made by Hawker Pacific were indeed misleading or deceptive. Their Honours reasoned that the unqualified statements about the aircraft's condition and airworthiness, made in the context of a commercial transaction for a significant asset, created a strong impression that the aircraft was free from substantial defects and fit for its intended purpose. The court held that the respondent had failed to qualify these representations sufficiently to alert a reasonable purchaser to the true state of the aircraft, which had a history of significant damage and repairs. The principles of statutory interpretation regarding misleading or deceptive conduct were applied, focusing on the overall impression conveyed to the consumer.

The High Court allowed the appeal, setting aside the orders of the Full Federal Court and remitting the matter to the Federal Court for determination of the appellant's damages.

Orders