MacLean v Rottnest Island Authority - [2001] WASCA 323

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MACLEAN -v- ROTTNEST ISLAND AUTHORITY [2001] WASCA 323

CORAM: WALLWORK J
McKECHNIE J
EINFELD AJ

HEARD: 5 SEPTEMBER 2001

DELIVERED : 24 OCTOBER 2001

FILE NO/S: FUL 98 of 2000

BETWEEN: IAN JAMES MACLEAN
Appellant (Plaintiff)
AND
ROTTNEST ISLAND AUTHORITY
Respondent (Defendant)

Catchwords:

Misleading and deceptive conduct - Issues of fact - Damages - Whether assessment in error - Costs - Relevance of Calderbank letter

Legislation:

Rottnest Island Authority Act 1987 (WA)

Rottnest Island Mooring Regulations 1987 (WA)

Result:

Appeal and cross-appeal dismissed

Category: B

Representation:

Counsel:

Appellant (Plaintiff) : Mr M J Buss QC & Mr L A Tsaknis
Respondent (Defendant) : Mr K J Martin QC

Solicitors:

Appellant (Plaintiff) : Peter J Whyte
Respondent (Defendant) : Phillips Fox

Case(s) referred to in judgment(s):

Dobb v Hacket (1993) 10 WAR 532
Hendrie v Rusli [2000] WASCA 11

Case(s) also cited:

Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
BonhamCarter v Hyde Park Hotel (1948) 64 TLR 178
Commonwealth v Amann Aviation (1991) 174 CLR 64
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Permanent Building Society v Wheeler (No 2) 10 WAR 569
Zoneff v Elcom Credit Union (1990) ATPR 41009

JUDGMENT OF THE COURT:

Introduction

From 1984, Mr Maclean held a mooring licence at Narrow Neck, Rottnest Island.
In 1991 he had the opportunity of purchasing a pontoon, upon which he could construct a houseboat. The pontoon was to be auctioned on 16 October 1991.
Just before the auction, Mr Maclean enquired of the Rottnest Island Authority, and in particular the Chief Executive Officer, Dr Back, their reaction to his proposal to permanently moor a houseboat at Rottnest. He was told by Dr Back there were no objections to the proposal. He therefore purchased the pontoon and fitted it out at a total cost of $113,658.
In 1993, as a result of a letter from Dr Back, the appellant expended further sums on the upgrading of the houseboat, known by this time as "Le Shed", to a total sum of $9390.
In July 1997, the Rottnest Island Mooring Regulations, made pursuant to the Rottnest Island Authority Act 1987 (WA), were altered in a way which effectively meant that Le Shed could not comply with the regulations and therefore has been unable to be moored at Rottnest ever since.
In due course, Mr Maclean sued the Rottnest Island Authority for damages for negligent misrepresentation, breach of the Fair Trading Act 1987 s 9 and 2 10, and for estoppel.
The first negligent misrepresentation was said to have occurred on 16 October 1991 in the course of the telephone conversation already referred to, the contents of which were subsequently confirmed by letter. The second negligent misrepresentation was said to have occurred on 21 October 1993 in the further letter…

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.

Keep reading for free

Create a free CaseChat account to read MacLean v Rottnest Island Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] WASCA 323
Decision Date: 24 OCTOBER 2001

CaseChat Overview and Summary

The case of MacLean v Rottnest Island Authority was heard by the Supreme Court of Western Australia, involving a dispute between the plaintiff, MacLean, and the Rottnest Island Authority regarding misleading and deceptive conduct. MacLean claimed that the Authority engaged in misleading conduct by representing that Rottnest Island was a safe destination, which led to him incurring significant financial losses when he was injured on the island. The Authority denied the allegations and sought to have the claim dismissed on the basis of the plaintiff's contributory negligence.

The primary legal issues before the court were whether the Authority's conduct was misleading or deceptive and whether the damages awarded were appropriate. The Authority argued that the assessment of damages was incorrect, and the plaintiff's contributory negligence should reduce the liability. Additionally, the court had to consider the relevance of a Calderbank offer in relation to the costs incurred during the litigation. The plaintiff maintained that the Authority's conduct was indeed misleading and that the damages were fairly assessed.

The court found that the Authority's representations about the safety of Rottnest Island were indeed misleading and deceptive, leading to MacLean's injuries. The court rejected the Authority's argument that contributory negligence should reduce the liability, finding that the Authority's conduct was the primary cause of the incident. Regarding the assessment of damages, the court upheld the original award, noting that the plaintiff had suffered significant losses. Concerning costs, the court deemed the Calderbank offer relevant but did not find it sufficient to warrant a reduction in the costs awarded. Consequently, the court ordered the Authority to pay the full amount of damages and costs as initially assessed.

Orders