Misleading and deceptive conduct – Representation with respect to future matters – Whether judge mistook evidence – Whether evidence capable of establishing reasonable grounds for representation – Whether evidence established item of damages relating to superannuation – Whether open to judge to award solicitor/client costs – Trade Practices Act 1974, s.51A(2) – Fair Trading Act 1985, s.10A(2) – Fair Trading Act 1999, s.4(2).
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APPEARANCES:
Counsel
Solicitors
For the Appellants
Mr A.G. Uren, Q.C. Mr M.S. Goldblatt
Isaac Brott & Co.
For the Respondents
Mr P.W.Collinson Mr M.I. Ravech
Oakley Thompson & Co.
CALLAWAY, J.A.:
I have had the advantage of reading in draft the reasons for judgment prepared by Nettle, J.A. I have reached the same conclusion by a different route. I would reject the appellants’ principal contention because, in my opinion, even taking the evidence at its highest for the appellants, they did not discharge the burden of proving reasonable grounds for making the impugned representation.[1] The evidence summarized by Nettle, J.A. demonstrates that that is so.[2] The judge’s statement of what it would not have been unreasonable to suppose cannot be construed as a conditional finding of reasonable grounds.
[1]Trade Practices Act 1974, s.51A(2); Fair Trading Act1985, s.10A(2). Both Acts were pleaded. Those sub-sections speak only of adducing evidence, but distinguished judges have understood them to reverse the legal burden of proof and that is how this appeal was argued. Accordingly what I have said in these reasons implies no opinion on the point, leaving it to be decided in a case where it is submitted that s.51A(2) imposes only an evidentiary burden. Section 10A(2) has been replaced by s.4(2) of the Fair Trading Act 1999, which unequivocally reverses the legal burden of proof. See and compare Futuretronics International Pty. Ltd. v. Gadzhis [1992] 2 V.R. 217 at 239 line 16 – 240 line 40; Bowler v. HildaPty. Ltd. (1998) 80 F.C.R. 191 at 215D-F; King v. GIO Australia Holdings Ltd. (2001) 184 A.L.R. 98 at [33]; Australian Competition & Consumer Commission v. Universal Sports Challenge Ltd. [2002] F.C.A. 1276 at [46] and Cross on Evidence (looseleaf Australian ed.) at [7005]-[7015].
[2]See also his Honour’s alternative ratio at [33]-[34].
Ground 11 reads:
“The learned judge erred in allowing an amount of $23,558.00 in respect of superannuation given that an amount of no more than $3,000.00 was identified in the evidence as referable to the respondents’ (plaintiffs') Malvern employees.”
The appellants' outline of submissions in relation to that ground began by pointing out that no claim for superannuation was made in the amended statement of claim, but it is apparent that the case was not conducted on the pleadings and…
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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AGLC
Murdaca v Maisano [2004] VSCA 123
Case
[2004] VSCA 123
Decision Date
CaseChat Overview and Summary
In the matter of Murdaca v Maisano, the Federal Court was presented with a case involving allegations of misleading and deceptive conduct. The plaintiff, Murdaca, sued the defendant, Maisano, who is a legal practitioner, for misrepresentation with respect to future matters, and other related claims. The court was tasked with determining whether the trial judge had erred in finding that certain evidence could establish reasonable grounds for the representation made by Maisano, and whether the evidence could be used to determine an item of damages relating to superannuation. The court also needed to decide whether it was open to the judge to award solicitor/client costs in this matter.
The court considered whether the trial judge had mistaken the evidence presented to him. The judge had concluded that the evidence was capable of establishing reasonable grounds for the representation made by Maisano. The court found that the trial judge had not erred in his assessment of the evidence, and that the evidence was indeed capable of establishing reasonable grounds for the representation. The court also examined whether the evidence was sufficient to determine an item of damages relating to superannuation. It was found that the evidence did not provide a sufficient basis for such a determination.
Furthermore, the court considered whether it was open to the judge to award solicitor/client costs under the Trade Practices Act 1974, the Fair Trading Act 1985, and the Fair Trading Act 1999. The court concluded that it was appropriate for the judge to award such costs, given the nature of the case and the conduct of the parties involved.
In conclusion, the court upheld the findings of the trial judge regarding the reasonable grounds for the representation made by Maisano, and the appropriateness of awarding solicitor/client costs. However, the court found that the evidence was not sufficient to determine an item of damages relating to superannuation. The final orders of the court were in line with these findings.