O'Rourke & Anor v Hearn & Anor

[2004] HCATrans 248

[2004] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B33 of 2003

B e t w e e n -

DENNIS O’ROURKE

First Applicant

CAMERAWORK PTY LIMITED

Second Applicant

and

TACCARA JAYNE HEARN BY HER NEXT FRIEND MARGARET ANNE HEARN

First Respondent

KELLIE ANNE ALLARDICE

Second Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 2.45 PM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:  May it please your Honours, I appear with my friend, MR D.P. O’GORMAN, for the applicants.  (instructed by Baker & McKenzie)

MR R.A. PERRY:  May it please the Court, I appear for the respondents.  (instructed by Drakopoulos Black)

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   Your Honours, in the 14 years that have followed publication of this Court’s reasons in the majority judgment in Concrete Constructions v Nelson there have been ‑ ‑ ‑

GUMMOW J:   The lesson of Concrete Constructions v Nelson may be that the Court was not dealing with a situation after trial.

MR WALKER:   Yes.

GUMMOW J:   There had been no trial in Concrete Constructions…..point, was it not?

MR WALKER:   Neither has there been here.

GUMMOW J:   Exactly.

HAYNE J:   Just so.  We thought we would encourage you at the outset, Mr Walker.

MR WALKER:   That is not what I was going to say in the second half of the sentence but it was a sentence I was going to come to very soon.  May I come to it directly?

GUMMOW J:   Yes.

MR WALKER:   The lack of detailed findings of fact in Nelson, that is, findings after a contested trial, is not significant for the way in which the test has been formulated.  To put it another way, the description of the assumed factual basis upon which Justice Einfeld delivered the decision from which the appeal was brought are conclusions of a kind which may well have resulted from a contested hearing with full testimony and cross‑examination.  On the other hand, it is clear that the ratio to be found, in particular, at pages 603 and 604 of the majority judgment, regardless of the fact that it is on assumed rather than adjudicated facts, is ratio that must be followed if it can be. 

Now, accepting that excessively abstract formulations of legal propositions, particularly in interpreting statutes, may follow in unguarded moments, which must be rare, even in this Court where there is no trial record and findings of fact, accepting that as a risk, what we now have in this country is the law about what section 52 means in the preposition “in trade or commerce” perhaps explicable because that was the foundation ‑ ‑ ‑

GUMMOW J:   If anyone wants it to be reconsidered at any stage, it is best that it come up here after a trial.

MR WALKER:   Your Honour is there referring, I think, to the richness of detail which would be achieved by actual evidence about, in this case, the dealings between the parents, the girls, the documentary filmmaker.  The question, of course, presents in this fashion, that we have already been to the Full Court.  The Full Court did not dispose of the matter on the basis that it was inapt to be dealt with on appeal in relation to the adequacy of a pleading and so it follows that any trial will be had subject to and necessarily fought on the basis of the Full Court’s understanding of section 52 ‑ ‑ ‑

GUMMOW J:   It would be fought on the pleadings hopefully.

MR WALKER:   Yes, I was about to say and then fought on the pleadings.  This was after all a pleading point as to whether a cause of action was revealed by the pleading, answer yes, the case will now be fought on the basis that a pleading not materially different from the pleading which was before the Full Court in this case produces a cause of action insofar as the critical nexus in trade or commerce is required. 

That means that if the challenge that we seek in this application to bring before this Court is not brought now, is not heard by this Court now, that there will be a trial, which cannot be run on what I will call alternative bases, it has to be run in accordance with what the Full Court has held, and the Full Court will be confronted with a very recent decision of its own, as it happens, in the very same proceedings, the only difference being between pleaded facts, pleaded allegations on the one hand, assumed to be true for the purposes of the pleading summons, and on the other hand actual findings of fact.

GUMMOW J:   You may win.

MR WALKER:   We may win.  However, on the “in trade or commerce” point, in our submission ‑ ‑ ‑

GUMMOW J:   All sorts of reasons.

MR WALKER:   Of course, I accept that, but on the “in trade or commerce” point, we face this difficulty, that we are now foreclosed from putting arguments upon which we obviously do wish to rely, namely that this was not in trade or commerce.  That has now been held against us, so long as the pleadings remain, as I say, not materially different and it is most unlikely that in relation to the commercial nature of documentary filmmaking, in relation to the approaches, not itself financial in nature, to the girls and their parents, it is most unlikely there will be any material change.  In that fashion we would seek to call in aid the fact that this reaches this Court on an assumed rather than found basis of fact because what now occurs by reason of the Full Court’s decision against us is a trial which, if we are right, will be entirely wasted, subject only to the happy possibility that we win on another ground altogether. 

There is some reference in the respondents’ written submissions to there being, in fact, a dispute of fact on the face of the pleadings.  Well, of course, there is, but there is no dispute as issues joined on the pleadings, no dispute whatever concerning the matters which are said to have given this its trading or commercial character. 

Your Honours, that then leaves the question of whether Concrete Constructions v Nelson is an exposition of the law which is (a) authoritative and (b) in need of revisiting.  In our submission, the first is clearly, yes, it is and must be treated by all courts, by this Court as authoritative; and (b) it can be seen that most particularly by use in a number of different places on those two pages, 603 and 604, of the phrase “in the course of”, that is, in the course of activities or transactions.  The different ways in which that is used in the critical passage has led to consequences such as are illustrated in the reasons of Justice Weinberg in McCormick v Riverwood that we have extracted at page 53 of the application book, paragraph 25 of our written submissions. 

The phrase is used quite differently with opposite effect on pages 603 and 604 of Concrete Constructions majority judgment, in particular, having pronounced that which is regarded as the test to be taken from the discussion that commences with description of section 52 “in trade or commerce” as being a restrictive operation, in particular, their Honours said that the words did not refer:

to the “immense field of activities” in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business.

Alas on page 604, in talking about the persons who may take advantage of section 52, just down from the top of the page, their Honours said:

What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings –

and then comes the phrase –

in the course of those activities or transactions which, of their nature, bear a trading or commercial character.

We would wish to submit to this Court that those generalised matters of conduct which have to bear that sufficient relation or be part of, or be component part of, activities or transactions which of their nature have the character of trading or commercial, those component parts to be in trade or commerce must be among those aspects, elements, component parts which lend the trading or commercial character to those activities.  That is a test which would remove the possibility shown by the lower court decisions to which we have drawn attention in our written submissions of matters which are essential for trading or commerce and, thus, in one sense, in the course of or for the purposes of trading or commerce, such as many, if not all, employment‑related matters – the famous truck signalling case, used by way of example in these very reasons, would be another – and all permissions. 

In one sense this is a case about permissions necessary to engage in one’s trading or commercial enterprise.  Some permissions are official and the question arises as to whether, on the approach taken in this case, all dealing with officialdom by business would be in trade or commerce.  That is an important matter.  Not all permissions are official.  Many a private licence is necessary for people to engage in one aspect or another of their business activities, including, for example, implied licences to enter upon private land. 

In our submission, one consequence of the Full Court’s decision in this case is that they too will be in trade or commerce because they answer the description that the majority chose.  In our submission, the case is, therefore, a ripe one to deal with the issues which are presently concluded against us by the combination of the Full Court and its understanding of what Concrete Constructions v Nelson says.  We are obviously precluded at trial and again in the Full Court, if there is a hearing in this case, from, with any cogency, submitting that the Full Court, from which we seek special leave to appeal, was wrong.  In our submission, that could only be done in this Court and, in the interests of efficiency at the trial, it would be better were it done now than that it be the subject of a special leave application later.  May it please your Honours.

GUMMOW J:   We do not need to call on you, Mr Perry.

The questions which the applicant seeks to agitate in this Court arise from the disposition of an interlocutory application in the Federal Court concerning the sufficiency of the pleading by the opposing parties.  This circumstance does not provide a suitable occasion for this Court to consider those questions.  Accordingly, special leave is refused with costs.

AT 2.57 PM THE MATTER WAS CONCLUDED