Murphy v Victoria

Case [2014] VSCA 238


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0117

ANTHONY MURPHY
Appellant
v
STATE OF VICTORIA
First Respondent

- and –

LINKING MELBOURNE AUTHORITY
Second Respondent

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JUDGES: NETTLE AP, SANTAMARIA and BEACH JJA
WHERE HELD: MELBOURNE
DATES OF HEARING: 22, 23 & 24  September 2014
DATE OF JUDGMENT: 29 September 2014
MEDIUM NEUTRAL CITATION: [2014] VSCA 238
JUDGMENT APPEALED FROM: Murphy v State of Victoria & Anor [2014] VSC 363 (Croft J)
Murphy v State of Victoria & Anor(No 2) [2014] VSC 404 (Croft J)

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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.

TRADE PRACTICES – Misleading or deceptive conduct – Application of Australian Consumer Law to Crown in right of State of Victoria – So far as carries on a business –Whether State carrying on business of planning, designing, financing and constructing motorway as tollway in public private partnership – In trade or commerce – Whether State making misleading representations in trade or commerce – Remedies – Injunction – Whether, if State making misleading representations in trade or commerce, injunction may go to restrain State’s entry into contract with successful tenderer for construction of motorway – NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 29; ACCC v Real Estate Institute of Western Australia Inc (1999) 95 FCR 114, applied; J S McMillan Pty Ltd v Commonwealth of Australia (1997) 77 FCR 337; Khan v Miah [2000] 1 WLR 2123; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, considered; Pioneer Concrete Services Ltd v Galli [1985] VR 675, distinguished – Competition and Consumer Act 2010 (Cth), s 2B; Australian Consumer Law, ss 18 and 232; Trade Practices Act 1974 (Cth), s 2A.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr R Merkel QC with
Ms S Gory
Fitzroy Legal Service
For the First Respondent 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:

  1. This is an appeal from a judgment given following…

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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.

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