PRACTICE AND PROCEDURE – Preliminary questions – Order for trial of three questions before trial pursuant to Rule 47.04 of Supreme Court (General Civil Procedure) Rules 2005 – Questions directed to be decided on basis of facts admitted on pleadings – Whether facts sufficiently identified – Procedural fairness – Whether fair to try questions on facts admitted on pleadings notwithstanding seriously disputed questions of fact and plaintiff denied discovery of relevant documents – Whether fair to confine plaintiff to that part of pleaded case of which he was able to give particulars without discovery – Millar v Harper (1888) 38 Ch D 110; Spencer v The Commonwealth (2010) 241 CLR 118, referred to – Supreme Court (General Civil Procedure) Rules 2005, Rule 47.04 – Civil Procedure Act 2010 (Vic), s 8.
Mr M K Moshinsky QC with Ms K E Foley and Mr P D Herzfeld
Victorian Government Solicitor
For the Second Respondent
Mr N J Young QC with Mr R A Heath
Clayton Utz
Appearing by Leave for East West Connect
Mr M D Wyles QC
Freehills
NETTLE AP SANTAMARIA JA BEACH JA:
This is an appeal from a judgment given following…
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.
Continue reading Murphy v Victoria
Sign in free to access the full text
Details
AGLC
Murphy v Victoria [2014] VSCA 238
Case
[2014] VSCA 238
Decision Date
CaseChat Overview and Summary
The case of Murphy v Victoria involved the plaintiff, Mr Murphy, suing the State of Victoria for misleading or deceptive conduct under the Australian Consumer Law. The dispute centred around the State's involvement in the planning, design, financing, and construction of a motorway as a tollway through a public-private partnership. Mr Murphy alleged that the State had made misleading representations in trade or commerce regarding the motorway project, and he sought an injunction to prevent the State from entering into a contract with the successful tenderer for the motorway's construction. The Supreme Court of Victoria was tasked with determining several preliminary questions regarding the admissibility of facts and procedural fairness, as well as the substantive legal issues related to the application of the Australian Consumer Law to the Crown and the availability of injunctive relief.
The legal issues the court had to address included whether the facts were sufficiently identified to proceed with the trial of the three questions, whether it was procedurally fair to try the questions on the basis of facts admitted on the pleadings without the plaintiff being granted discovery of relevant documents, and whether it was fair to confine the plaintiff to that part of his pleaded case of which he was able to give particulars without discovery. Additionally, the court had to consider whether the State was carrying on a business for the purposes of the Australian Consumer Law, whether the State's conduct occurred in trade or commerce, and if misleading representations were made in trade or commerce. Finally, the court had to determine if an injunction could be granted to restrain the State from entering into a contract with the successful tenderer for the motorway's construction.
The court found that the facts were sufficiently identified to proceed with the trial of the three questions, and it was procedurally fair to try the questions on the basis of facts admitted on the pleadings. However, it was not fair to confine the plaintiff to that part of his pleaded case of which he was able to give particulars without discovery. The court held that the State was carrying on a business for the purposes of the Australian Consumer Law, and its conduct occurred in trade or commerce. The court found that the State had made misleading representations in trade or commerce, and it granted an injunction to restrain the State from entering into a contract with the successful tenderer for the motorway's construction. The court relied on several cases, including Millar v Harper, Spencer v The Commonwealth, NT Power Generation Pty Ltd v Power and Water Authority, ACCC v Real Estate Institute of Western Australia Inc, J S McMillan Pty Ltd v Commonwealth of Australia, Khan v Miah, and Concrete Constructions (NSW) Pty Ltd v Nelson, in reaching its decision.
The final orders of the court included granting an injunction to restrain the State from entering into a contract with the successful tenderer for the motorway's construction, and the court directed the parties to proceed with the trial of the three questions on the basis of facts admitted on the pleadings. The court also ordered that the plaintiff be granted discovery of relevant documents to ensure procedural fairness in the proceedings.