Paula Susan Chappell as Executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd - [2021] WASCA 205

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PAULA SUSAN CHAPPELL AS EXECUTOR OF THE ESTATE OF ROBERT HASTINGS HITCHCOCK -v- GOLDSPAN INVESTMENTS PTY LTD [2021] WASCA 205
CORAM:   BUSS P
MITCHELL JA
PRITCHARD JA

HEARD:   17 & 18 FEBRUARY 2021
DELIVERED          :   3 DECEMBER 2021
FILE NO/S:   CACV 155 of 2019
BETWEEN:   PAULA SUSAN CHAPPELL AS EXECUTOR OF THE ESTATE OF ROBERT HASTINGS HITCHCOCK
Appellant
AND
GOLDSPAN INVESTMENTS PTY LTD
First Respondent
KEVIN ROBINSON
Second Respondent
NEIL ROBINSON
Third Respondent
PETER ROBERT HALLAM
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ALLANSON J
Citation: [2019] WASC 434
File Number            :   CIV 1597 OF 2014

Catchwords:

Misleading or deceptive conduct - Death of original plaintiff before trial - Abatement - Substitution of the original plaintiff's executor as the plaintiff in the pending proceedings - Whether the original plaintiff's executor was a person who had suffered loss or damage for the purposes of the statutory claims based on misleading or deceptive conduct - Proper construction of the term 'person' in each of s 1041I of the Corporations Act 2001 (Cth), s 12GF of the Australian Securities and Investments Commission Act 2001 (Cth) and s 236 of the Australian Consumer Law (WA) - Proper construction of s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 (WA) - Whether s 79 of the Judiciary Act 1903 (Cth) picked up and applied s 4 of the Law Reform (Miscellaneous Provisions) Act - Whether the causes of action under s 1041I of the Corporations Act, s 12GF of the Australian Securities and Investments Commission Act and s 236 of the Australian Consumer Law (WA) which were subsisting or vested in the original plaintiff survived for the benefit of his estate

Legislation:

Acts Interpretation Act 1901 (Cth), s 2C
Administration Act 1903 (WA), s 8
Administration and Probate Act 1958 (Vic), s 29
Australian Consumer Law (WA), s 2(2), s 18, s 138, s 236, s 239
Australian Securities and Investments Commission Act 2001 (Cth), s 12AE, s 12BAA, s 12BAB, s 12DA, s 12GF
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), s 4
Commonwealth Constitution, s 109
Compensation (Fatal Injuries) Act 1974 (NT), s 7(1)
Competition and Consumer Act 2010 (Cth), s 9, s 131, s 131A(1), s 131A(2), s 140, s 140B, Pt XI, Pt XIAA, sch 2
Corporations Act 2001 (Cth), s 9, s 764A(1), s 766C(1), s 1041H, s 1041I, s 1041K
Fair Trading Act 1987 (WA), s 10, s 11A, s 19, s 24, s 36, s 52
Fair Trading Act 2010 (WA), s 19, s 36
Interpretation Act 1984 (WA), s 3
Judiciary Act 1903 (Cth), s 79, s 80
Land Administration Act 1997 (WA), s 202
Law Reform (Miscellaneous Provisions) Act 1934 (UK)
Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 4
Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2(1)
Law Reform (Miscellaneous Provisions) Act 1956 (NT), s 5
Limitation Act 2005 (WA)
Limitation Legislation Amendment and Repeal Act 2005 (WA), s 15(3)
Matrimonial Causes and Personal Status Code 1948 (WA), s 3(1)
Property (Relationship) Act 1984 (NSW)
Property Law Act 1974 (Qld), s 283
Public Trustee Act 1941 (WA), s 9
Rules of the Supreme Court 1971 (WA), O 18 r 7
Sex Discrimination Act 1984 (Cth)
Supreme Court Act 1935 (WA), s 94
Trade Practices Act 1974 (Cth), s 51AC, s 52, s 82, s 87, Pt IV, Pt V
Trustees Act 1962 (WA), s 10
Trusts Act 1973 (Qld), s 15

Result:

Appeal allowed
Notices of Contention dismissed

Category: A

Representation:

Counsel:

Appellant	:	Ms J K Taylor SC and Ms A Pieniazek
First Respondent	:	Mr B F Katekar SC and Mr D J McDonald-Norman
Second Respondent	:	Mr M C Goldblatt
Third Respondent	:	Mr M C Goldblatt
Fourth Respondent	:	Mr B F Katekar SC & Mr D J McDonald-Norman

Solicitors:

Appellant	:	Jones Day
First Respondent	:	Mills Oakley
Second Respondent	:	Murcia Pestell Hillard
Third Respondent	:	Murcia Pestell Hillard
Fourth Respondent	:	Mills Oakley

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

AB v The State of Western Australia; AH v The State of Western Australia [2011] HCA 42; (2011) 244 CLR 390
Air Link Pty Ltd v Paterson [2005] HCA 39; (2005) 223 CLR 283
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247
Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485
AWAP SGT 26 Invesment Limited v CN 2000 Holdings Ltd [2020] WASCA 74
Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440
Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Barnes v Forty Two International Pty Limited [2014] FCAFC 152; (2014) 316 ALR 408
Beckham v Drake [1849] 2 HLC 579
Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720
Bride v Shire of Katanning [2013] WASCA 154
Brown v Jam Factory Pty Ltd [1981] FCA 35; (1981) 53 FLR 340
Brown v Milson [2012] WASC 36
Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592
CAG v The Public Trustee of Queensland [2008] QCA 252; [2008] 2 Qd R 419
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502
Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106; (2001) 123 FCR 62
Chappell v Goldspan Investments Pty Ltd [No 4] [2019] WASC 434
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
City Pacific Ltd (in liq) v CBRE (V) Pty Ltd [2021] NSWSC 456
Clayton v Bant [2020] HCA 44; (2020) 385 ALR 41
Coffey v Bennett [1961] VR 264
Commissioner of Stamp Duties (NSW) v Owens [No 2] [1953] HCA 62; (1953) 88 CLR 168
Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694; (1964) 112 CLR 12
Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594
Dawson v Great Northern and City Railway Co [1905] 1 KB 260
Dean v Wiesengrund [1955] 2 QB 120
Defries v Milne [1913] 1 Ch 98
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Elna Aust Pty Ltd v International Computers (Aust) Pty Ltd [No 2] (1987) 16 FCR 410
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Farrow v Wilson [1869] LR 744
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Felton v Oser (1969) 72 SR (NSW) 24
Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570
Foppoli v Public Trustee [1970] WAR 73
Gould v Vaggelas [1985] HCA 75; (1985) 157 CLR 215
Gregory Spencer Ward t/as Ward's Stock Transport v Watson [2021] WASCA 44
Hartley Poynton Limited v Ali [2005] VSCA 53; (2005) 11 VR 568
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
House v The King [1936] HCA 40; (1936) 55 CLR 499
In the matter of HIH Insurance Ltd (in liq) ACN 008 636 575 [2018] NSWSC 1886; (2018) 133 ACSR 338
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309
Kalejs v Minister for Justice and Customs [2001] FCA 1769; (2001) 111 FCR 442
Kenny and Good Pty ltd v MGICA (1992) Ltd [1999] HCA 25; (1999) 199 CLR 413
Kilmaley Investments Pty Ltd v City of Wanneroo [2019] WASCA 156
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Kirk v Todd (1882) 21 Ch D 484
Krishell Pty Ltd v Nilant [2006] WASCA 223; (2006) 32 WAR 540
Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques (No 2) [2016] QSC 242; [2017] 2 Qd R 456
Laverick v Westpac Banking Corporation [2020] QSC 333
Letang v Cooper [1964] 2 All ER 929
Maddock v Registrar of Titles (Vic) [1915] HCA 10; (1915) 19 CLR 681
Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385
Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554
Mayne v Jaques (1960) 101 CLR 169
McEvoy v Public Trustee (1989) 16 NSWLR 92
Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance [2010] HCA 31; (2010) 241 CLR 357
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388
National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (No 1) (1995) 132 ALR 514
National Trustees Executors and Agency Co of Australia Ltd v Federal Commissioner of Taxation [1954] HCA 71; (1954) 91 CLR 540
Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553
Northern Territory of Australia v Public Trustee of the Northern Territory of Australia [2001] NTSC 110; (2001) 11 NTLR 134
Oakey and Sons v Dalton (1887) 35 Ch D 700
Occidental Life Insurance Co Australia Ltd v Bank of Melbourne Ltd (unreported, Victorian Supreme Court, O'Bryan J, 31 May 1991)
O'Connor v Insurance Commission of Western Australia [2016] WASCA 95
Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306
Park v Allied Mortgage Corporation Limited (1993) ATPR (Digest) 46‑105
Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd [2018] VSC 633; (2018) 58 VR 1
Plaintiff M70/2011 v Minister for Immigration and Citizenship and Anor [2011] HCA 32; (2011) 244 CLR 144
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Poulton v The Commonwealth [1953] HCA 101; (1952) 89 CLR 540
Premiership Investments Pty Ltd v White Diamond Pty Ltd (1995) 61 FCR 178
Pritchard v Racecage Pty Ltd [1997] FCA 27; (1997) 72 FCR 203
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Pulling v The Great Eastern Railway Company [1882] 9 QB 110
Qantas Airways Ltd v Aravco Ltd [1996] HCA 12; (1996) 185 CLR 43
R v Chong; Ex parte Chong [2001] 2 Qd R 301
R v Falzon [2018] HCA 29; (2018) 264 CLR 361
Re her Honour Judge Schoombee; Ex parte Attorney General (WA) [2011] WASCA 129; (2011) 58 MVR 315
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Shannon (1935) 35 SR (NSW) 516
Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268; (2003) 27 WAR 475
Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511
Re Wardle (1979) 22 SASR 139
Read v Nicholls [2004] VSC 66
Redmond Family Holdings v GC Access Pty Ltd [2016] NSWSC 1883
Rizeq v The State of Western Australia [2017] HCA 23; (2017) 262 CLR 1
Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [No. 6] [2014] WASC 203
Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532
Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159
Schlenert v HG Watson Contracting Co Pty Ltd [1979] 1 NSWLR 140
Scruby v Hoggan (1954) 55 SR (NSW) 2
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
Skene v Dale [1990] VR 605
Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Stephenson v Human Rights and Equal Opportunity Commission [1996] FCA 1654; (1996) 68 FCR 290
Story v Sheard [1892] 2 QB 515
Sugden v Sugden [1957] P 120
Sydney Local Health Network v QY and QZ [2011] NSWCA 412; (2011) 83 NSWLR 321
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Union Bank of Australia v Harrison, Jones & Devlin Ltd [1910] HCA 44; (1910) 11 CLR 492
Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1
Wilson v Arwon Finance Pty Ltd [2020] WASCA 137
Witcombe v Talbot & Olivier [2011] WASCA 107; (2011) 280 ALR 177
Woolworths Ltd v Crotty (1942) 66 CLR 603
WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34; (2010) 241 CLR 420

Table of Contents

BUSS P & MITCHELL JA

The primary judge's reasons for judgment, the grounds of appeal, the grounds of the notices of contention and the submissions of the parties

The grounds of appeal

The grounds of the appeal: the primary judge's reasons

The grounds of appeal: relevant principles of statutory construction

Ground 1 of the appeal: its merits

Ground 2 of the appeal: its merits

The notices of contention

Conclusion

PRITCHARD JA

(a) Overview of the primary judge's reasons for decision

The establishment of CTEC and the nature of its operations

Early discussions concerning the sale of Mr Hitchcock's shares

CTEC's financial position 2008 to 2010

September 2010 to February 2011

A change of fortune for CTEC and discussions with Forge

Conclusion of the negotiations for the sale of Mr Hitchcock's shares

The Diamantina contract and the Share Purchase Agreement

The primary judge's conclusions in relation to whether the causes of action continued, after the death of Mr Hitchcock

The learned primary judge's alternative findings in relation to the statutory claims

Findings as to whether the respondents engaged in misleading and deceptive conduct

Findings as to causation

Findings as to damages

Apportionment

(b) The appellant's grounds of appeal

The ASIC Act provisions

The Corporations Act

Australian Consumer Law

(d) On their proper construction, do the applicable Acts manifest an intention by the enacting Parliaments that the term 'person' includes the executor of a person's estate?

Authorities on which the respondents relied

Conclusion in relation to the operation of the operative provisions

(e) Did s 4 of the LRMP Act apply so that the statutory cause of action under the applicable Acts did not abate, and could be pursued by the appellant for the benefit of Mr Hitchcock's estate?

The proper construction of s 4 of the LRMP Act application to statutory causes of action

Does s 4(1) of the LRMP Act apply to the determination of the claims made under the operative provisions?

(f) The grounds raised by the Notices of Contention

(g) Principles in relation to appellate review of findings of fact

(h) Consideration of the grounds in the Notices of Contention

Goldspan and Mr Hallam's ground 2: The primary judge erred in finding that Mr Hitchcock was not informed of the Merredin contract: RFD [484]

The Robinsons' ground 2: The primary judge erred in finding (at RFD [472], [484]) that none of the respondents told Hitchcock that the Merredin contract had been awarded and in not finding that Hallam and [Van Veen] informed Hitchcock, prior to the entry into of the [Share Buy Back Agreement] on 30 July 2011, of matters, which conveyed to Hitchcock that the Merredin contract had been awarded to CTEC

The Robinsons' ground 1: The primary judge erred in finding (at RFD [472], [483], [484], [488], [489] ‑ [491]) that there was a relevant failure, in the circumstances, on the part of [Kevin Robinson or Neil Robinson], to disclose information to Hitchcock regarding the contracts which [CTEC] applied for or was awarded or CTEC's relationship and negotiations with [Forge]

Goldspan and Mr Hallam's ground 1: The primary judge erred in finding that the other shareholders would have agreed to Mr Hitchcock sharing in the initial payment under the Share Purchase Agreement with Forge: RFD [524]

The Robinsons' ground 5: The primary judge erred in finding (RFD [515], [519], [524], [525]) that [Kevin Robinson's and Neil Robinson's] conduct, in not disclosing to Hitchcock the Merredin contract (if such be found not to have been disclosed to Hitchcock; see ground 2), the preliminary agreements with Diamantina (not pleaded) and the potential for an acquisition by Forge, caused Hitchcock to sell the Hitchcock shares under the [Share Buy Back Agreement], when he otherwise would not have; and Hitchcock would have participated in the [Share Purchase Agreement] with Forge to the extent of the initial payment under it of $16 million; because he gave no, or insufficient, weight to the evidence

Whether it was part of the appellant's pleaded or conducted case that the other shareholders would have agreed to Mr Hitchcock sharing in the initial payment

Whether the scenario found by the primary judge had been eschewed by counsel for the appellant in closing submissions

Whether the respondents were denied the opportunity to present evidence or submissions on the scenario found by the primary judge, and whether in the circumstances the primary judge's finding constituted a denial of the basic requirements of procedural fairness

Whether the evidence was sufficient to support an inference that the finding made by the learned primary judge was more probable than not

Goldspan and Mr Hallam's ground 3: The primary judge erred in finding that Mr Hitchcock was 'misled' into entering the agreement on 26 June 2011: RFD [491]

The Robinsons' ground 3: The primary judge erred in finding (at RFD [248], [484], [488] ‑ [494]) that whether or not Hitchcock was misled by, or relied on, or was induced by, [Kevin Robinson's and Neil Robinson's] conduct in entering into the agreement on 26 June 2011 for the sale of the Hitchcock shares was determinative of the statutory claim. The primary judge should have determined whether or not: [Kevin Robinson and Neil Robinson] engaged in misleading conduct; and, if so, Goldspan, the vendor of the Hitchcock shares under the [Share Buy Back Agreement], alternatively, Hitchcock, was misled by, or relied on, or was induced by, such conduct in entering the [Share Buy Back Agreement]. The primary judge should have found that [Kevin Robinson and Neil Robinson] did not engage in misleading conduct; and, in any event, Goldspan, alternatively, Hitchcock, was not misled or induced by, or relied on, [Kevin Robinson and Neil Robinson's] conduct in entering into the [Share Buy Back Agreement].

The Robinsons' ground 4: Alternatively to ground 3, if the entry into an agreement on 26/27 June 2011 was determinative of the statutory claim, the primary judge erred in finding (at RFD [248], [484], [488] ‑ [494], [515]) that Hitchcock was misled into, or relied on, or was induced by, [Kevin Robinson and Neil Robinson's] conduct in, entering into the agreement.

The Robinsons' ground 6: The primary judge erred in finding (RFD [527] ‑ [529]) that each of [Neil Robinson, Kevin Robinson] and Hallam were equally responsible for the loss sustained by Hitchcock and that he would have ordered that Goldspan/Hallam were liable for one third of the loss suffered by Hitchcock and [Kevin Robinson and Neil Robinson] were together liable for two thirds of the loss. The primary judge should have found that Goldspan/Hallam were liable for 70% of the loss and [Kevin Robinson and Neil Robinson] were together liable for 30% of the loss

Conclusion

BUSS P & MITCHELL JA:

At all material times before 30 July 2011:
(a)the first respondent (Goldspan), the second respondent (Mr Kevin Robinson), the third respondent (Mr Neil Robinson) and Mr Thierry Van Veen were the shareholders of a company known as CTEC Pty Ltd (CTEC);
(b)Mr Kevin Robinson, Mr Neil Robinson, Mr Van Veen and the fourth respondent (Mr Hallam) were the directors of CTEC; and
(c)Mr Hallam was the sole director and shareholder of Goldspan.
At all material times:
(a)Goldspan held upon trust for Mr Robert Hitchcock 20% of the issued share capital of CTEC; and
(b)Goldspan held beneficially another 20% of the issued share capital of CTEC.
In July 2011, Mr Hitchcock sold his 20% beneficial shareholding to CTEC who purchased and cancelled the shares. Each of the remaining shareholders then held 25% of the remaining issued share capital.

Mr Hitchcock sold his shares for US$1.15 million.
In January 2012, the remaining shareholders in CTEC sold all of their shares in CTEC to Forge Group Ltd for a total price in excess of A$30 million.

On 2 May 2014, Mr Hitchcock as plaintiff commenced proceedings in the General Division of the Supreme Court against the respondents as defendants.
Mr Hitchcock alleged, relevantly, that he had suffered loss or damage by the misleading or deceptive conduct of the respondents done in contravention of s 1041H(1) of the Corporations Act 2001 (Cth) (Corporations Act), s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and s 18(1) of the Australian Consumer Law (WA) (as applied by the Fair Trading Act 2010 (WA)) (ACL (WA)).
In the proceedings, Mr Hitchcock asserted that Goldspan, Mr Kevin Robinson, Mr Neil Robinson and Mr Hallam did not give him information about the financial position of CTEC before he agreed to sell his shares for US$1.15 million. Mr Hitchcock also asserted that, before he agreed to sell his shares, the respondents had misled and deceived him about the prospects of CTEC and about the value of his beneficial interest in the shares held on his behalf. According to Mr Hitchcock, the respondents' misleading and deceptive conduct caused him to suffer loss or damage.
Section 1041H(1) of the Corporations Act provides that '[a] person must not, in this jurisdiction, engage in conduct, in relation to a financial product or a financial service, that is misleading or deceptive or is likely to mislead or deceive'. Section 12DA(1) of the ASIC Act provides that '[a] person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive'. Section 18(1) of the ACL (WA) provides that '[a] person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive'. Section 18(1) is a provision of ch 2 of the ACL (WA).
The statutory provisions which conferred causes of action on Mr Hitchcock were as follows:
(a)by s 1041I(1) of the Corporations Act, '[a] person who suffers loss or damage by conduct of another person that was engaged in in contravention of section … 1041H may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention';
(b)by s 12GF(1) of the ASIC Act, '[a] person who suffers loss or damage by conduct of another person that contravenes a provision of … Subdivision D (sections 12DA to 12DN) may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention'; and
(c)by s 236(1) of the ACL (WA):
If:
(a) a person (the claimant) suffers loss or damage because of the conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 …;
the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
On 7 April 2015, Mr Hitchcock died.
On 25 January 2016, Allanson J (the primary judge) ordered, pursuant to O 18 r 7 of the Rules of the Supreme Court 1971 (WA) (RSC), that the legal personal representative of Mr Hitchcock's estate, namely Paula Susan Chappell, who is the appellant in this appeal, be substituted as the plaintiff in the pending proceedings.
Between 17 and 26 September 2018, the proceedings were tried before the primary judge.
On 29 November 2019, his Honour delivered judgment and published written reasons. See Chappell v Goldspan Investments Pty Ltd [No 4].[1]
[1] Chappell v Goldspan Investments Pty Ltd [No 4] [2019] WASC 434.
The primary judge held that:
(a)the respondents had engaged in misleading or deceptive conduct, as alleged in the proceedings;
(b)Mr Hitchcock had relied, to his detriment, upon the misleading or deceptive conduct; and
(c)Mr Hitchcock had suffered loss or damage by the misleading or deceptive conduct.
His Honour assessed that the amount of Mr Hitchcock's damages was A$3,200,000.
However, the primary judge dismissed the appellant's claim against the respondents on the following grounds:

(a)The appellant, in her capacity as the legal personal representative of Mr Hitchcock's estate, was not a person who had suffered loss or damage for the purposes of the statutory provisions which conferred causes of action for misleading or deceptive conduct. In particular, his Honour held that the term 'person' in each of s 1041I(1) of the Corporations Act, s 12GF(1) of the ASIC Act and s 236(1) of the ACL (WA) does not include the person's testamentary successor.
(b)None of the statutory provisions which conferred causes of action for misleading or deceptive conduct survived Mr Hitchcock's death. In particular, his Honour held that s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 (WA) (LRMP Act) did not apply, either directly or by virtue of s 79 of the Judiciary Act 1903 (Cth) (Judiciary Act), to those causes of action.

His Honour said that had he found the respondents liable on the appellant's claim then, for the purposes of apportionment of that liability as between the respondents, he would have held that Goldspan and Mr Hallam were liable for one third of the damages and Mr Kevin Robinson and Mr Neil Robinson were liable for two thirds of the damages.
The appellant has appealed to this court against the primary judge's dismissal of her claim on two grounds.
Goldspan and Mr Hallam have filed a notice of contention. Mr Kevin Robinson and Mr Neil Robinson have also filed a notice of contention. The notices contend that the primary judge's judgment should be upheld upon a number of grounds not relied upon by his Honour.
In our opinion, the appeal should be allowed on the basis of ground 2 but not ground 1. The notices of contention should be dismissed. Our reasons are as follows.

The primary judge's reasons for judgment, the grounds of appeal, the grounds of the notices of contention and the submissions of the parties

A detailed summary of the primary judge's reasons for judgment, the grounds of appeal, the grounds of the notices of contention and the submissions of the parties are set out in the reasons of Pritchard JA. We will not repeat her Honour's summary except to the extent necessary to explain these reasons.

The grounds of appeal

Ground 1 of the appeal alleges that the primary judge erred in law in holding that the appellant, in her capacity as executor of the estate of Mr Hitchcock and as the plaintiff substituted under O 18 r 7 of the RSC after Mr Hitchcock's death, was not a person who had suffered loss or damage for the purposes of the statutory claims for misleading or deceptive conduct.
The particulars of ground 1 are as follows:
(a)As a matter of statutory construction, the primary judge ought to have found that the term 'person' in each of s 1041I of the Corporations Act, s 12GF of the ASIC Act and, or alternatively, s 236 of the ACL (WA) includes the person's testamentary successor.
(b)The primary judge applied the decision of the Full Court of the Federal Court in Pritchard v Racecage Pty Ltd[2] when he ought to have concluded that that decision was distinguishable, or alternatively was wrongly decided and should not be followed.
[2] Pritchard v Racecage Pty Ltd [1997] FCA 27; (1997) 72 FCR 203.
Ground 2 of the appeal alleges, further or alternatively, that the primary judge erred in law in holding that none of the statutory claims could succeed and ought to have held instead that s 4 of the LRMP Act applied:
(a)to the causes of action under s 236 of the ACL (WA) which were subsisting or vested in Mr Hitchcock so that they survived for the benefit of his estate;
(b)further or alternatively, by virtue of s 79 of the Judiciary Act, to the causes of action under s 1041I of the Corporations Act and/or s 12GF of the ASIC Act which were subsisting or vested in Mr Hitchcock, so that they also survived for the benefit of his estate.

The grounds of the appeal: the primary judge's reasons

The primary judge said that a common feature of the statutory provisions relied upon by the appellant in connection with the claims for misleading or deceptive conduct is that they confer rights of action for damages or compensation on 'a person who suffers loss or damage by conduct of another person that was done in contravention of [the relevant provision]' or 'a person … [who] has suffered, or is likely to suffer, loss or damage by conduct of another person' [368].
His Honour referred to Pritchard, where the Full Court of the Federal Court considered whether, pursuant to s 82 of the Trade Practices Act 1974 (Cth) (TPA), the estate of a deceased person was able to recover damages arising from the deceased's death. His Honour noted that in Pritchard, Branson J (Spender and Olney JJ agreeing) observed (218):
I see no reason to read down the expression 'loss or damage' appearing in ss 82 and 87 of the [TPA] whether by reference to the rule in Baker v Bolton or otherwise so as to exclude loss or damage (as defined by s 4K of the [TPA]) suffered by reason of the death of any person.
However, in my view, the estate of the deceased [cannot] satisfy the statutory requirement of s 82 of the [TPA] of being a 'person' who suffers loss or damage. Nor can the estate, in my view, satisfy the statutory requirements of s 87 of the [TPA] of being 'a person who is a party to the proceeding' or 'a person who has suffered, or is likely to suffer, loss or damage' …
The primary judge said that the decision in Pritchard is consistent with authorities which have held that a cause of action under s 82 or s 87 of the TPA is not capable of assignment by the person who has suffered loss or damage [370].
His Honour rejected submissions by the appellant to the following effect [371] ‑ [372]:
(a)The present case was distinguishable from Pritchard and authorities which have held that a cause of action under s 82 or s 87 of the TPA is incapable of assignment because the effect of s 4 of the LRMP Act is that a cause of action vested in a deceased survives for the benefit of his or her estate. The vested cause of action may be pursued on behalf of the deceased person. There is no assignment of the cause of action.
(b)The present case was also distinguishable from Pritchard and the other cases because in the present case Mr Hitchcock commenced proceedings during his lifetime to enforce the causes of action. When he died before trial his executor was substituted as the plaintiff.
(c)A court should not find that Parliament intended that a statutory cause of action ceases to exist upon death unless that result is required by clear statutory language.
(d)Section 4 of the LRMP Act is 'picked up' by s 79 of the Judiciary Act and fills the gap created by the absence of a Commonwealth law addressing the means by which a federal claim by a deceased in a State court may be continued after his or her death.
The primary judge held:
(a)Section 4 of the LRMP Act provides, relevantly, that on the death of any person, 'all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate'. It is not materially different from s 5 of the Law Reform (Miscellaneous Provisions) Act 1956 (NT), which was considered in Pritchard. As Branson J said in that case, a provision for the survival of actions to an estate of a deceased has no relevance to the proper construction of s 82 and s 87 of the TPA [373].
(b)The estate of a deceased cannot satisfy 'the statutory requirement [in s 1041I of the Corporations Act, s 12GF of the ASIC Act and s 236 of the ACL (WA)] of being a person who suffers, or has suffered, loss or damage' [375].
(c)If the reasoning in Pritchard is applied, the difference between an action commenced by a deceased in his or her lifetime, and an action commenced by a deceased's estate after his or her death, would not affect the result. In both cases, the estate is not the relevant 'person' who has suffered loss or damage within the statutory provisions [376].
(d)The principle of legality did not assist the appellant because the statutory language was clear [377].
(e)In Pritchard it was held [378]:
If the [TPA] on its proper construction does not give rise to a right of action on behalf of a deceased estate, nothing in the Judiciary Act can, in my view, be relied upon as creating such a right of action. Any attempt to use ss 79 and 80 of the Judiciary Act in this way would, in my view, result in an attempt to use a law of the Territory or the common law in a way inconsistent with a law of the Commonwealth (219).
(f)Nothing in the High Court's decision in Rizeq v The State of Western Australia[3] calls that reasoning into question [379].
(g)There is no gap in the law which is filled by s 79 of the Judiciary Act 'picking up' s 4 of the LRMP Act. Rather, the position is that the relevant statutory provisions do not confer a cause of action which may be continued after the death of a deceased. Section 79 is not directed to, and it does not add to or subtract from, laws which are determinative of the rights and duties of persons as opposed to the manner of exercise of jurisdiction [379]. His Honour referred to Rizeq [105] and Masson v Parsons.[4]

The grounds of appeal: relevant principles of statutory construction

[3] Rizeq v The State of Western Australia [2017] HCA 23; (2017) 262 CLR 1.

[4] Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 [30].

The focus of statutory construction is upon the text of the provisions having regard to their context and purpose.
The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority;[5] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT);[6] Travelex Ltd v Federal Commissioner of Taxation;[7] SZTAL v Minister for Immigration and Border Protection.[8]
[5] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
[6] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47].
[7] Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82].
[8] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd.[9]
[9] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408.
However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself. See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd;[10] Alphapharm Pty Ltd v H Lundbeck A/S.[11]
[10] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39].
[11] Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 [121].
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross.[12] The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd.[13]

Ground 1 of the appeal: its merits

[12] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26].

[13] Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21].

Ground 1 of the appeal asserts, in essence, that the primary judge erred in law in deciding that the word 'person' in each of s 1041I(1) of the Corporations Act, s 12GF(1) of the ASIC Act and s 236(1) of the ACL (WA) does not include the 'person's' testamentary successor and, consequently, erred in law in deciding that the appellant, as executor of Mr Hitchcock's estate, was not a 'person' who had suffered loss or damage for the purposes of the statutory claims for misleading or deceptive conduct.
Section 1041H(1) of the Corporations Act, s 12DA(1) of the ASIC Act and s 18(1) of the ACL (WA) are, for the purposes of ground 1, relevantly identical in substance to s 52(1) of the TPA in that all of those provisions state, in effect, that a person must not engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 1041I(1) of the Corporations Act, s 12GF(1) of the ASIC Act and s 236(1) of the ACL (WA) are, for the purposes of ground 1, relevantly identical in substance to s 82(1) of the TPA in that all of those provisions state, in effect, that a person who suffers loss or damage 'by conduct of' or 'because of the conduct of' another person that contravenes, relevantly, s 1041H(1) of the Corporations Act, s 12DA(1) of the ASIC Act, s 18(1) of the ACL (WA) or s 52(1) of the TPA, as the case may be, may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
It is well established that the statutory cause of action for damages conferred by s 82(1) of the TPA on a person who has suffered loss or damage by conduct of another person that contravenes s 52(1) of the TPA is incapable of assignment. The right conferred by s 82(1) to recover, by action, loss or damage suffered by a person by conduct of another person that was done in contravention of s 52(1) cannot be enforced by a person who did not suffer the loss or damage. See, for example, Park v Allied Mortgage Corporation Limited;[14] National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (No 1);[15] Pritchard (218); Chapman v Luminis Pty Ltd (No 4);[16] Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd;[17] Salfinger v Niugini Mining (Australia) Pty Ltd (No 3).[18]
[14] Park v Allied Mortgage Corporation Limited (1993) ATPR (Digest) 46‑105, 53,469.
[15] National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (No 1) (1995) 132 ALR 514, 537 ‑ 538.
[16] Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106; (2001) 123 FCR 62 [204] ‑ [207].
[17] Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720 [49] ‑ [55].
[18] Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532 [110].
Those propositions were formulated upon a proper construction of the text of s 82(1) read with s 52(1) of the TPA in the context of the statutory scheme as a whole.
In Park, four applicants commenced proceedings in the Federal Court for damages under s 82 of the TPA in respect of loss or damage suffered by the alleged misleading or deceptive conduct in trade or commerce of the respondents. Shortly before the trial, the first and second applicants assigned their interests in the proceedings to the third applicant. Subsequently, the first and second applicants filed a notice of discontinuance in respect of their claims. A preliminary issue arose as to whether the assignment was effective to confer upon the third applicant an entitlement to any relief to which the first and second applicants would have been entitled had they remained applicants in the proceedings. Davies J held that the assignment was not effective for that purpose. His Honour said (53,469):
In my opinion, a right to claim damages under ss 82 and 87 of the [TPA] is, in general, a bare right of action which cannot be assigned. I am not speaking of an assignment such as may occur on the bankruptcy or death of a person or on the merger of a company into another entity. Absent such special circumstances, a right to claim under ss 82 and 87 cannot, in my opinion, be assigned. …
[Section 82] does not allow for the award of damages in respect of a loss which was not suffered by any party to the proceedings. Both the terms of the statutory provision and the principle as enunciated in cases such as Dawson v Great Northern and City Railway Co [1905] 1 KB 260 at 270-1, Defries v Milne [1913] 1 Ch 98 and Poulton v The Commonwealth (1953) 89 CLR 540 at 602, preclude [the third applicant] from suing for damages in respect of any loss suffered by [the first and second applicants].

The relevant principle enunciated in Dawson v Great Northern and City Railway Co,[19] Defries v Milne[20] and Poulton v The Commonwealth[21] is that a bare right of litigation is incapable of assignment either at law or in equity.
[19] Dawson v Great Northern and City Railway Co [1905] 1 KB 260, 270 ‑ 271.
[20] Defries v Milne [1913] 1 Ch 98, 109 ‑ 111.
[21] Poulton v The Commonwealth [1953] HCA 101; (1952) 89 CLR 540, 602.
In National Mutual Property Services, Lindgren J held that a cause of action under s 82 of the TPA was not assignable 'if for no other reason, because it is relevantly only the claimants who could possibly satisfy the statutory [description] of being persons who suffered loss or damage caused by the [misleading or deceptive] conduct' (539).
In Pritchard, the applicant, Mrs Pritchard, commenced proceedings in the Federal Court. In her statement of claim, the applicant pleaded that, pursuant to a grant of letters of administration, she was the administrator of the estate of her late husband (the deceased). The statement of claim alleged that the deceased was a volunteer official in a car rally and that he was killed when struck by a motor vehicle driven by one of the competitors in the rally. Mrs Pritchard, on her own behalf, as next friend for her children and as the administrator of the deceased's estate, claimed damages in the proceedings under, relevantly, s 82 of the TPA against persons who had promoted, organised and conducted the rally, for breaches of, relevantly, s 52(1) of the TPA. A Full Court of the Federal Court held that the applicant's claim as administrator of the deceased's estate was not maintainable.
As we have mentioned, in Pritchard Branson J (Spender and Olney JJ agreeing) said (218):
[I]n my view, the estate of the deceased [cannot] satisfy the statutory requirement of s 82 of the [TPA] of being a 'person' who suffers loss or damage. Nor can the estate, in my view, satisfy the statutory requirements of s 87 of the [TPA] of being 'a person who is a party to the proceeding' or 'a person who has suffered, or is likely to suffer, loss or damage' (Park v Allied Mortgage Corporation Ltd [1993] ATPR (Digest) 53,467 at 53,469; National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd(1995) 132 ALR 514).
Her Honour then stated that she was of the view that s 5 of the Law Reform (Miscellaneous Provisions) Act 1956 (NT), which is comparable to s 4 of the LRMP Act and provides for the survival of actions to the estate of a deceased person, had no relevance to the proper construction of s 82 or s 87 of the TPA (218 ‑ 219).
The High Court has stated emphatically, on a number of occasions, that an Australian intermediate appellate court is bound to follow the decision of another Australian intermediate appellate court in both matters of statutory interpretation and matters of common law unless persuaded that the decision is plainly wrong. See, for example, Australian Securities Commission v Marlborough Gold Mines Ltd;[22] Farah Constructions Pty Ltd v Say‑Dee Pty Ltd;[23] R v Falzon.[24]
[22] Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492.
[23] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135].
[24] R v Falzon [2018] HCA 29; (2018) 264 CLR 361 [49].
Consequently, this court must follow Pritchard and apply the reasoning of the Full Court of the Federal Court referred to at [45] above unless Pritchard is relevantly distinguishable from the present case or this court is satisfied that the reasoning in Pritchard is plainly wrong.
The propositions which we have set out at [39] above, in relation to s 82(1) of the TPA, have been applied in relation to the statutory causes of action for damages conferred by s 1041I(1) of the Corporations Act and s 12GF(1) of the ASIC Act. See, for example, Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd;[25] Laverick v Westpac Banking Corporation.[26]
[25] Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd [2018] VSC 633; (2018) 58 VR 1 [63] ‑ [68].
[26] Laverick v Westpac Banking Corporation [2020] QSC 333 [37].
The approach adopted in Pentridge Village and Laverick was appropriate in that the provisions of s 1041I(1) of the Corporations Act and s 12GF(1) of the ASIC Act are not relevantly distinguishable from the provisions of s 82(1) of the TPA. That observation may also be made in relation to s 236(1) of the ACL (WA).
In our opinion, the critical text of s 1041I(1) of the Corporations Act, s 12GF(1) of the ASIC Act and s 236(1) of the ACL (WA) is that '[a] person who suffers loss or damage by [the misleading or deceptive] conduct of another person … may recover the amount of the loss or damage by action against that other person'.
In our opinion, the statutory text confers the cause of action solely on the person who has suffered the loss or damage by the misleading or deceptive conduct of another person. A person is not entitled to commence or maintain an action under s 1041I(1), s 12GF(1) or s 236(1) unless that person has suffered loss or damage by the defendant's misleading or deceptive conduct. A person does not have standing to commence or maintain an action under any of those provisions in respect of loss or damage suffered by another person. The person who has suffered loss or damage is the only person to whom the court may grant relief.
The word 'person' is not defined in the ASIC Act or the ACL (WA). The word is defined in s 9 of the Corporations Act, but not for the purposes of s 1041I(1). Section 2C of the Acts Interpretation Act 1901 (Cth) makes provision with respect to expressions in Commonwealth statutes which are used to denote persons generally, but the provision does not assist in the resolution of the issue raised by ground 1.
The word 'person' in each of s 1041I(1), s 12GF(1) and s 236(1) must not be construed in isolation from the remainder of the provision. Each of those provisions requires that the 'person' on whom the cause of action is conferred must have suffered loss or damage by the defendant's misleading or deceptive conduct. If the 'person' has suffered loss or damage by the relevant misleading or deceptive conduct then the 'person' may recover the amount of the loss or damage by action against the defendant. When the word 'person' in each of s 1041I(1), s 12GF(1) and s 236(1) is construed having regard to the provision as a whole it is apparent that the person who commences or maintains an action under s 1041I(1), s 12GF(1) or s 236(1) must be the person who has suffered the loss or damage, by the defendant's misleading or deceptive conduct, for which damages are claimed in the action. Even if the executor of a deceased person's estate is a 'person', for the purposes of s 1041I(1), s 12GF(1) or s 236(1), those provisions cannot, as a matter of construction, confer a cause of action upon the executor of a deceased person's estate unless the executor, as distinct from the deceased, is the person who has suffered loss or damage by conduct of another person that contravened, relevantly, s 1041H(1), s 12DA(1) or s 18(1), as applicable.
Each of s 1041H(1), s 12DA(1) or s 18(1), by prohibiting misleading or deceptive conduct or conduct likely to mislead or deceive, establishes a norm of conduct. If the norm of conduct is not observed there will be consequences as provided elsewhere in the statute or under the general law. See Brown v Jam Factory Pty Ltd;[27] Concrete Constructions (NSW) Pty Ltd v Nelson.[28] However, the apparent purpose of each of those provisions read with the corresponding provisions of s 1041I(1), s 12GF(1) and s 236(1), in the context of the statute as a whole, does not indicate that s 1041I(1), s 12GF(1) and s 236(1) confer a cause of action upon the executor of a deceased's estate where the deceased is the person who suffered loss or damage by conduct of another person that contravened, relevantly, s 1041H(1), s 12DA(1) or s 18(1), as applicable.
[27] Brown v Jam Factory Pty Ltd [1981] FCA 35; (1981) 53 FLR 340, 348.
[28] Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, 608.
In our opinion, the statutory text, context and apparent purpose of each of s 1041H(1), s 12DA(1) and s 18(1) read with the corresponding provisions of s 1041I(1), s 12GF(1) and s 236(1) reveals that the reference to a 'person' who 'suffers loss or damage' in each of s 1041I(1), s 12GF(1) and s 236(1) does not extend to the executor of the 'person' in question.
A person who purports to commence or maintain an action under s 1041I(1), s 12GF(1) or s 236(1), pursuant to a purported assignment, devolution or transmission of a cause of action held by another person under those provisions, will not be a person who, within s 1041I(1), s 12GF(1) or s 236(1), has suffered the relevant loss or damage by the relevant misleading or deceptive conduct.
In our opinion, a person who purports to commence or maintain an action under s 1041I(1), s 12GF(1) or s 236(1), pursuant to a purported assignment, devolution or transmission of a cause of action held by another person under those provisions, will not have standing to commence or maintain the action unless the cause of action is vested in the person by another law which operates validly upon s 1041I(1), s 12GF(1) or s 236(1) for that purpose.
The salient facts of Pritchard are, of course, different from those of the present case. In particular, the deceased in Pritchard died before the action was commenced in the Federal Court. However, that difference is not a relevant point of distinction in relation to the proper construction of s 1041I(1), s 12GF(1) or s 236(1). The reasoning of Branson J (Spender and Olney JJ agreeing) to the effect that 'the estate of the deceased [cannot] satisfy the statutory requirement of s 82 of the [TPA] of being a "person" who suffers loss or damage' was not plainly wrong. Indeed, for the reasons we have given, that reasoning, to the extent that it was based upon the proper construction of s 82(1) read with s 52(1) of the TPA, in the context of the statutory scheme as a whole, was correct.
The primary judge did not err in law in deciding that the word 'person' in each of s 1041I(1), s 12GF(1) and s 236(1) does not include the 'person's' testamentary successor and, consequently, did not err in law in deciding that the appellant, as executor of Mr Hitchcock's estate, was not a 'person' who had suffered loss or damage for the purposes of the statutory claims for misleading or deceptive conduct.
Ground 1 fails.

Ground 2 of the appeal: its merits

Ground 2 of the appeal asserts, in essence, that the primary judge erred in law in holding that none of the statutory claims for misleading or deceptive conduct could succeed, and ought to have held instead that s 4 of the LRMP Act applied:
(a)to the cause of action under s 236(1) of the ACL (WA);
(b)further or alternatively, by virtue of s 79 of the Judiciary Act, to the cause of action under s 1041I(1) of the Corporations Act, further or alternatively, to the cause of action under s 12GF(1) of the ASIC Act.
As we have mentioned during our consideration of ground 1, a person who purports to commence or maintain an action under s 1041I(1), s 12GF(1) or s 236(1), pursuant to a purported assignment, devolution or transmission of a cause of action held by another person under those provisions, will not have standing to commence or maintain the action unless the cause of action is vested in the person by another law which operates validly upon s 1041I(1), s 12GF(1) or s 236(1) for that purpose.
That issue has been considered, in different statutory contexts, in a number of decisions.
For example:
(a)In Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques (No 2),[29] the plaintiff was Lanai Unit Holdings Pty Ltd as trustee of the Lanai Unit Trust. The statement of claim alleged that the defendant had engaged in misleading or deceptive conduct in contravention of s 52(1) of the TPA and that Lanai Apartments Pty Ltd as trustee of the Lanai Unit Trust had suffered loss or damage. Lanai Unit Holdings Pty Ltd succeeded Lanai Apartments Pty Ltd as the trustee of the Lanai Unit Trust. By s 15(1) of the Trusts Act 1973 (Qld), where a new trustee is appointed 'the instrument of appointment vests, subject to the provisions of any other Act, the trust property in the persons who become and are the trustees as joint tenants without any conveyance, transfer or assignment'. So, upon Lanai Unit Holdings Pty Ltd replacing Lanai Apartments Pty Ltd as trustee of the Lanai Unit Trust, the trust property vested in Lanai Unit Holdings Pty Ltd by an instrument of appointment dated 7 November 2014. Lanai Unit Holdings Pty Ltd pleaded in the statement of claim that, in the circumstances, the rights of Lanai Apartments Pty Ltd (as the former trustee) against the defendant (including the TPA claim) vested in Lanai Unit Holdings Pty Ltd on 7 November 2014. Jackson J proceeded on the assumption that the TPA claim was capable of constituting property within s 15(1) of the Trusts Act [30]. However, his Honour held that s 15(1) did not apply to effect an automatic vesting where a Commonwealth statute relating to property would prohibit or restrict transfer or vesting of that property [49]. Section 82(1) of the TPA, properly construed, provided that only the person who suffers the loss or damage may recover it by action [42]. Section 82(1) was inconsistent with s 15(1) operating to vest the TPA claim that Lanai Apartments Pty Ltd may have had (as trustee) in Lanai Unit Holdings Pty Ltd (as trustee) when Lanai Unit Holdings Pty Ltd was appointed as the new trustee of the Lanai Unit Trust by the instrument of appointment [50]. His Honour went on to hold that, even if and to the extent that s 15(1) would 'vest' the TPA claim in Lanai Unit Holdings Pty Ltd, it would confer a right to recover any loss or damage under s 82(1) upon a person who was not the person who suffered the loss or damage [59]. In his Honour's view, that would be 'a clear alteration, impairment or detraction from the operation of s 82 and to that extent would be invalid under s 109 of The Constitution' [60].
(b)The weight of authority indicates that s 477(2)(c) of the Corporations Act does not empower a liquidator to sell or dispose of a cause of action under s 82(1) of the TPA in that s 477(2) does not make assignable statutory claims which are not otherwise assignable. See Pentridge Village [111] and the cases reviewed by Connock J in that case.
(c)In the matter ofHIH Insurance Ltd (in liq) ACN 008 636 575[30] concerned, relevantly, whether a cause of action under s 82(1) of the TPA was capable of vesting under s 601AD of the Corporations Act in the Commonwealth (or in a successor trustee). Brereton J said the answer to that question turned on whether the cause of action was 'property' amenable to assignment or devolution [45]. His Honour added that whether the cause of action was held on trust was not capable of changing the answer [45]. His Honour concluded, having regard to Park and the authorities which have applied it, that it was not [45].
[29] Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques (No 2) [2016] QSC 242; [2017] 2 Qd R 456.
[30] In the matter ofHIH Insurance Ltd (in liq) ACN 008 636 575 [2018] NSWSC 1886; (2018) 133 ACSR 338.
At common law the essence of the maxim actio personalis moritur cum persona was that a cause of action in tort died with the plaintiff or the defendant. See WorkCover Queensland v Amaca Pty Ltd.[31] The rationale for the maxim appears to have been that a private action was premised upon a personal relationship between two individuals, namely a right in the plaintiff and a corresponding duty in the defendant, and the personal relationship could not survive the death of one of the parties. See WorkCover Queensland [36].
[31] WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34; (2010) 241 CLR 420 [34].
At common law a distinction was made between causes of action that were transmissible from a deceased to his or her legal personal representative and causes of action that were not. In general, actions for breach of contract, apart from those which involved a mere personal wrong, were transmissible, but causes of action in tort were not. See Kalejs v Minister for Justice and Customs.[32]
[32] Kalejs v Minister for Justice and Customs [2001] FCA 1769; (2001) 111 FCR 442 [17].
The death of a plaintiff in pending proceedings will cause the proceedings to abate. The abatement will be temporary if the proceedings can be reconstituted by the substitution of a proper party for the deceased plaintiff. The abatement will be permanent if the proceedings cannot be reconstituted by the substitution of a proper party for the deceased plaintiff. See Scruby v Hoggan;[33] Felton v Oser;[34] Bogeta Pty Ltd v Wales.[35]
[33] Scruby v Hoggan (1954) 55 SR (NSW) 2, 6.
[34] Felton v Oser (1969) 72 SR (NSW) 24, 29 ‑ 30.
[35] Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139, 144 ‑ 145.
In Managing Director, New South Wales Technical and Further Education Commission v Fines,[36] Mahoney JA observed that historically the courts have adopted various procedures to deal with incidents arising from the death of a party in pending proceedings. As we have mentioned, in the present case the primary judge ordered, pursuant to O 18 r 7 of the RSC, that Mrs Chappell, in her capacity as the legal personal representative of Mr Hitchcock's estate, be substituted as the plaintiff in the pending proceedings. Mrs Chappell is the appellant in this appeal. Order 18 r 7 provides, relevantly:
(1)Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy.
(2)Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first‑mentioned party.
[36] Managing Director, New South Wales Technical and Further Education Commission v Fines (1993) 32 NSWLR 385, 390.
We note that O 18 r 7(1), in providing that an action shall not abate by reason of the death of a party, is premised upon the cause of action surviving the death.
In Western Australia the common law as to the effect of death in relation to causes of action was amended by the LRMP Act.
Section 4(1) of the LRMP Act, as originally enacted in 1941, provided:
Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under section ninety‑four of the Supreme Court Act, 1935, for damages on the ground of adultery.
When s 4(1) of the LRMP Act was originally enacted in 1941, s 94(1) of the Supreme Court Act 1935 (WA) provided:
A husband may, on a petition for dissolution of marriage, or for judicial separation, or for damages only, claim damages from any person on the ground of adultery with the wife of the petitioner.
Section 94 of the Supreme Court Act was repealed by s 3(1) of the Matrimonial Causes and Personal Status Code 1948 (WA).
Since Mr Hitchcock's cause of action against Goldspan, Mr Kevin Robinson, Mr Neil Robinson and Mr Hallam accrued, s 4(1) of the LRMP Act has provided:
Subject to the provisions of this section and the Limitation Act 2005, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other.
The term 'cause of action' is not defined in the LRMP Act.

At all times s 4(2) of the LRMP Act has provided, relevantly and in effect, that where a cause of action survives under s 4(1) for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person do not include damages of specified kinds.
Section 4(3) of the LRMP Act, as originally enacted in 1941, imposed time limits for the commencement of 'a cause of action in tort' which, by virtue of s 4, had survived against the estate of a deceased person. Section 4(3) was repealed by s 15(3) of the Limitation Legislation Amendment and Repeal Act 2005 (WA).
In Kalejs, Kenny J noted that:
(a)In some cases, the view has been expressed that legislation comparable to s 4 of the LRMP Act is irrelevant to whether a cause of action conferred by a statute is transmissible or not [17] ‑ [19]. See, for example, Stephenson v Human Rights and Equal Opportunity Commission.[37]
(b)However, in other cases, the view has been expressed that legislation comparable to s 4 of the LRMP Act is relevant to whether a cause of action conferred by a statute is transmissible or not [20]. See, for example, Skene v Dale.[38]
[37] Stephenson v Human Rights and Equal Opportunity Commission [1996] FCA 1654; (1996) 68 FCR 290, 296 ‑ 297.
[38] Skene v Dale [1990] VR 605, 612 ‑ 614.
In our opinion, whether a cause of action conferred by statute on a person, who dies after the cause of action accrues, is transmissible from the deceased person to his or her legal personal representative, depends upon the terms of the statute which conferred the cause of action and any other relevant statute. See, generally, Occidental Life Insurance Co Australia Ltd v Bank of Melbourne Ltd;[39] Fines (388 ‑ 389); Kalejs [22]; CAG v The Public Trustee of Queensland.[40]
[39] Occidental Life Insurance Co Australia Ltd v Bank of Melbourne Ltd (unreported, Victorian Supreme Court, O'Bryan J, 31 May 1991).
[40] CAG v The Public Trustee of Queensland [2008] QCA 252; [2008] 2 Qd R 419 [17].
As we have held in the context of ground 1 of the appeal, the statutory text, context and apparent purpose of each of s 1041I(1) of the Corporations Act, s 12GF(1) of the ASIC Act and s 236(1) of the ACL (WA) establishes that:
(a)each of s 1041I(1), s 12GF(1) and s 236(1) confers the cause of action solely on the person who has suffered the loss or damage by the misleading or deceptive conduct of another person; and
(b)a person is not entitled to commence or maintain an action under s 1041I(1), s 12GF(1) or s 236(1) unless that person has suffered loss or damage by the defendant's misleading or deceptive conduct.
However, the relevant statutory text, context and apparent purpose does not indicate that a plaintiff's cause of action under s 1041I(1), s 12GF(1) or s 236(1) in pending proceedings does not survive for the benefit of the plaintiff's estate if the plaintiff dies before judgment.
In the present case, Mr Hitchcock commenced and, until his death, maintained the primary proceedings in respect of, relevantly:
(a)a cause of action under s 1041I(1) of the Corporations Act;
(b)a cause of action under s 12GF(1) of the ASIC Act; and
(c)a cause of action under s 236(1) of the ACL (WA).
The Corporations Act and the ASIC Act are laws of the Commonwealth.
Section 131(1) of the Competition and Consumer Act 2010 (Cth) provides that sch 2 to that Act (being the Australian Consumer Law (Cth)) applies as a law of the Commonwealth, relevantly, to the conduct of corporations.
Section 1 of the Australian Consumer Law (Cth) provides that the Australian Consumer Law (Cth) applies to the extent provided by:
(a)Part XI of the Competition and Consumer Act; or
(b)an application law.
Section 2 of the Australian Consumer Law (Cth) provides that 'application law' has the same meaning as in s 140 of the Competition and Consumer Act.
Section 140 of the Competition and Consumer Act defines 'application law' to mean, relevantly, a law of a 'participating jurisdiction' (which, as defined in s 140, includes Western Australia) that applies the applied Australian Consumer Law (Cth), either with or without modifications, as a law of the participating jurisdiction.
By s 19(2)(a) of the Fair Trading Act, as originally enacted, sch 2 to the Competition and Consumer Act 2010 (Cth), as in force on 1 January 2011 (but as modified by s 36 of the Fair Trading Act), was applied as a law of Western Australia. Section 19(2)(b) provided that, as so applying, the law may be referred to as the Australian Consumer Law (WA).
In the present case there is, relevantly, one controversy which comprises the causes of action under s 1041I(1) of the Corporations Act, s 12GF(1) of the ASIC Act and s 236(1) of the ACL (WA). The single controversary concerns whether Mr Hitchcock suffered loss or damage as a result of any misleading or deceptive conduct by the respondents, and what relief should be granted by the court for any breach of the norm of conduct established by each of s 1041H(1), s 12DA(1) and s 18(1). The whole of the proceedings in relation to those causes of action (including the cause of action under s 236 of the ACL (WA)) are within federal jurisdiction. See Fencott v Muller;[41] Re Wakim; Ex parte McNally.[42]
[41] Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570, 608.
[42] Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 [25], [26], [137] ‑ [147].
Section 4 of the LRMP Act does not apply of its own force to proceedings in federal jurisdiction. Section 4 applies to proceedings in federal jurisdiction only if it is picked up and applied by s 79 of the Judiciary Act as a Commonwealth law. See Solomons v District Court of New South Wales;[43] Australian Securities and Investments Commission v Edensor Nominees Pty Ltd;[44] Masson [30].
[43] Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 [21].
[44] Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 [57] ‑ [58], [68], [72] ‑ [74].
If s 79 of the Judiciary Act picks up and applies s 4 of the LRMP Act as a law of the Commonwealth then, in our opinion, the causes of action under s 1041I(1), s 12GF(1) and s 236(1) which were the subject of the primary proceedings commenced by Mr Hitchcock and maintained by him until his death will be causes of action vested in him which, pursuant to s 4(1) of the LRMP Act, survived for the benefit of his estate. We are of that opinion for the following reasons.
First, the term 'cause of action' does not have a fixed meaning. See Air Link Pty Ltd v Paterson.[45] The term takes colour from the context in which it is used.
[45] Air Link Pty Ltd v Paterson [2005] HCA 39; (2005) 223 CLR 283 [146].
In Port of Melbourne Authority v Anshun Pty Ltd,[46] Brennan J said:
There is an imprecision in the meaning of the term cause of action, which is sometimes used to mean the facts which support a right to judgment (see per Williams J in Carter v Egg and Egg Pulp Marketing Board(Vic) (1942) 66 CLR 557 at 600–1); sometimes to mean a right which has been infringed (see Serrao v Noel(1885) 15 QBD 549), and sometimes to mean the substance of an action as distinct from its form (see Krishna Behari Roy v Brojeswari Chowdranee (1875) LR 2 Ind App 283).
See also Chamberlain v Deputy Commissioner of Taxation;[47] Clayton v Bant.[48]
[46] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, 610.
[47] Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502, 508.
[48] Clayton v Bant [2020] HCA 44; (2020) 385 ALR 41 [28].
In s 4(1) of the LRMP Act the term 'cause of action' is used in the sense of a right which is vested in the deceased or a liability which is subsisting against the deceased at the time of his or her death and which is enforceable by or against the deceased by legal proceedings. See, generally, Sugden v Sugden.[49] It is not essential that a right be in the nature of personal property to fall within the term 'cause of action' in s 4(1).
[49] Sugden v Sugden [1957] P 120, 134.
Secondly, the term 'cause of action' in s 4(1) is not confined to causes of action in tort. The long title to the LRMP Act states, relevantly, that it is a statute 'to amend the law as to the effect of death in relation to causes of action'. The relevant part of the long title refers to causes of action generally and not merely to causes of action in tort. Also, s 4(1) refers to causes of action generally. Further, s 4(3) (repealed) imposed time limits for the commencement of 'a cause of action in tort', but not causes of action generally.
Thirdly, the term 'cause of action' in s 4(1) includes a cause of action in the sense we have mentioned for damages in respect of loss or damage suffered by the deceased.
That is apparent from the references in s 4(2) to 'damages' and the references in s 4(4) to the suffering of 'damage'. The text of s 4(1) is relevantly general and unqualified. Nothing in the text of s 4(1) or elsewhere in the LRMP Act indicates that the term 'cause of action' in s 4(1) is confined to causes of action for damages at common law.
Also, when s 4(1) was originally enacted the proviso to s 4(1) stated, relevantly, that s 4(1) 'shall not apply to' claims for damages on the ground of adultery that were conferred by s 94 of the Supreme Court Act. The proviso indicated that claims for damages under s 94 of the Supreme Court Act would otherwise have been within the substantive part of s 4(1).
Fourthly, a cause of action vested in or subsisting against a deceased person under s 1041I(1), s 12GF(1) or s 236(1), as at date of the deceased's death, is a cause of action within the sense in which that term is used in s 4 of the LRMP Act. The causes of action conferred by those provisions are for damages in respect of loss or damage suffered by the relevant misleading or deceptive conduct. As Gummow J observed in Elna Aust Pty Ltd v International Computers (Aust) Pty Ltd [No 2],[50] in the context of s 82(1) of the TPA, the suffering of loss or damage is 'the gist of the [statutory cause of] action'.
[50] Elna Aust Pty Ltd v International Computers (Aust) Pty Ltd [No 2] (1987) 16 FCR 410 at 418.
In the present case, the application of s 4 of the LRMP Act to the causes of action conferred on Mr Hitchcock by s 1041I(1), s 12GF(1) and s 236(1), depends upon s 79 of the Judiciary Act.
Section 79(1) of the Judiciary Act provides:
The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
In Northern Territory of Australia v GPAO,[51] Gleeson CJ and Gummow J observed that the object of s 79 of the Judiciary Act is 'to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself'. See also Commissioner of Stamp Duties (NSW) v Owens [No 2].[52]
[51] Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553 [80].
[52] Commissioner of Stamp Duties (NSW) v Owens [No 2] [1953] HCA 62; (1953) 88 CLR 168, 170.
Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ stated in Solomons [23] four relevant limitations in the text of s 79:
First, the section operates only where there is already a court 'exercising federal jurisdiction', 'exercising' being used in the present continuous tense. Secondly, s 79 is addressed to those courts; the laws in question 'shall ... be binding' upon them. The section is not, for example, directed to the rights and liabilities of those engaged in non-curial procedures under State laws. Thirdly, the compulsive effect of the laws in question is limited to those 'cases to which they are applicable'. To that it may be added, fourthly, the binding operation of the State laws is 'except as otherwise provided by the Constitution'.
In Rizeq [81], Bell, Gageler, Keane, Nettle and Gordon JJ referred to these features of s 79:
(a)Section 79 operates 'to take the text of State law and to apply that text as Commonwealth law'.
(b)Section 79 so operating 'does not alter the meaning of the text of the State law other than to make that text applicable to a federal court exercising jurisdiction in the State even though the State law on its proper construction applies only to a State court'.
The Constitution does not 'otherwise provide', within s 79(1), in relation to s 1041I(1) of the Corporations Act, s 12GF(1) of the ASIC Act, s 236(1) of the ACL (WA) or s 4 of the LRMP Act.
The Corporations Act and the ASIC Act do not 'otherwise provide', within s 79(1), in relation to whether a plaintiff's cause of action under s 1041I(1) and s 12GF(1) respectively in pending proceedings does or does not survive the plaintiff's death for the benefit of the plaintiff's estate. The creation by each of those provisions of a cause of action which is not capable of assignment, and may not be in the nature of personal property, says nothing about the operation of the general law concerning succession. Nothing in the text of the Corporations Act or the ASIC Act reveals an intention that a plaintiff's cause of action under s 1041I(1) or s 12GF(1), as the case may be, in pending proceedings abates permanently upon the plaintiff's death. No sound policy justification for that outcome is apparent. The character of the norm of conduct established by each of s 1041H(1) and s 12DA(1), and the statutory consequences if the norm of conduct is not observed, indicate otherwise. Those consequences include the causes of action for damages created by s 1041I(1) and s 12GF(1) and the provision for other relief under s 1324 of the Corporations Act and s 12GD of the ASIC Act. The causes of action created by s 1041I(1) and s 12GF(1) are beneficial or remedial in nature. In our opinion, s 1041I(1) and s 12GF(1), properly construed, operate in the context of, and subject to, the general law concerning succession.
Similarly, the ACL (WA), as a law of a 'participating jurisdiction' (as defined in s 140 of the Competition and Consumer Act) that applies the Australian Consumer Law (Cth), does not 'otherwise provide', within s 79(1), in relation to whether a plaintiff's cause of action under s 236(1) in pending proceedings does or does not survive for the benefit of the plaintiff's estate if the plaintiff dies before judgment. In any event, s 79 of the Judiciary Act relates to the Constitution and Commonwealth laws, rather than the laws of a State. It is true that s 138(3) of the ACL (WA) makes express provision as to the consequences where an individual with a cause of action under s 138(2) dies as a result of the injuries he or she suffered because of a safety defect in a good. However, the existence of that express provision does not provide a proper basis for inferring that the absence of any express provision in the ACL (WA), as to the consequences where a plaintiff in pending proceedings under s 236(1) dies before judgment, indicates a legislative intention that the cause of action conferred by s 236(1) does not survive for the benefit of the plaintiff's estate.
As we have mentioned, nothing in the relevant statutory text, context and apparent purpose of s 1041I(1), s 12GF(1) or s 236(1) indicates that a plaintiff's cause of action in pending proceedings does not survive for the benefit of the plaintiff's estate if the plaintiff dies before judgment. There is no conflict or inconsistency between s 1041I(1), s 12GF(1) and s 236(1), on the one hand, and the application of s 4(1) upon the death of a plaintiff in pending proceedings, on the other, arising from the principle that the statutory cause of action for damages cannot be commenced or maintained by a person who did not suffer the loss or damage sought to be recovered. It is true that s 4(1) is not relevant to the proper construction of s 1041I(1), s 12GF(1) or s 236(1). However s 4(1) is complementary to s 1041I(1), s 12GF(1) and s 236(1). The application of s 4(1) upon the death of a plaintiff in pending proceedings does not alter, impair or detract from the operation of s 1041I(1), s 12GF(1) or s 236(1), properly construed.
Section s 1041I(1), s 12GF(1) and s 236(1) operate subject to the general law in respect of, relevantly, succession and the transmissibility of causes of action in pending proceedings upon the death of the plaintiff.
In the present case, causes of action under s 1041I(1), s 12GF(1) and s 236(1) for damages in respect of loss or damage suffered by Mr Hitchcock by or because of the misleading or deceptive conduct of the respondents accrued to and became vested in Mr Hitchcock before his death. Mr Hitchcock commenced the primary proceedings and maintained those proceedings until his death. Each of the causes of action under s 1041I(1), s 12GF(1) and s 236(1) was a 'cause of action' within s 4(1). The federal jurisdiction of the General Division of the Supreme Court to resolve the controversy referred to at [89] above was engaged before Mr Hitchcock's death.
In the present case, s 4(1) regulated the exercise by the primary judge of the Supreme Court's exercise of federal jurisdiction to resolve the controversy referred to at [89] above; namely, whether the respondents had contravened s 1041H(1), s 12DA(1) and s 18(1) and whether the respondents were liable in damages for the loss and damage suffered by Mr Hitchcock. Section 79 of the Judiciary Act picked up and applied s 4(1) in relation to the pending proceedings.
It is unnecessary to determine whether a different result would follow if the causes of action had not accrued to and become vested in Mr Hitchcock before his death or if Mr Hitchcock had not commenced the primary proceedings before his death.

The cause of action which survived for the benefit of Mr Hitchcock's estate, by virtue of s 4(1) as picked up and applied by s 79, was the same cause of action which was vested in Mr Hitchcock immediately before his death. See WorkCover [38]; Witcombe v Talbot & Olivier.[53] The appellant, as executor of Mr Hitchcock's estate, had standing to prosecute that cause of action for the benefit of the estate.
[53] Witcombe v Talbot & Olivier [2011] WASCA 107; (2011) 280 ALR 177 [23].
The decision of the Full Court of the Federal Court in Pritchard is relevantly distinguishable. Pritchard did not involve a cause of action which had accrued to and become vested in the deceased before his death. Rather, Pritchard concerned claims by the deceased's dependants and his 'estate' for loss and damage suffered directly by them as a result of his death.
Ground 2 has been made out.

The notices of contention

We agree with Pritchard JA, generally for the reasons she gives, that none of the grounds of the notices of contention has been made out.

Conclusion

We would allow the appeal.
Counsel should be heard as to the appropriate form of the orders and as to costs.

PRITCHARD JA:

Between 2003 and July 2011, Robert Hastings Hitchcock had a 20% shareholding in a company called CTEC Pty Ltd (CTEC).[54] At all material times, there were four other shareholders: Goldspan Investments Pty Ltd (Goldspan), Mr Kevin Robinson, Mr Neil Robinson and Mr Thierry Van Veen.[55] The sole director and shareholder of Goldspan was Mr Peter Hallam. At all relevant times, Mr Neil Robinson, Mr Kevin Robinson, Mr Van Veen and Mr Hallam were the directors of CTEC.

[54] The company was initially called Capital Turbines Australia Pty Ltd ACN 103 678 324. It was later called Forge Power Pty Ltd.

[55] Mr Van Veen's shares were later held for him by Energy Century Developments Limited.

However, non‑disclosure of information may constitute misleading or deceptive conduct in some circumstances. Unless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, mere silence will not support an inference that the fact does not exist.[407] To invoke the existence of a reasonable expectation that if a fact exists it will be disclosed is to do no more than direct attention to the effect or likely effect of non‑disclosure, unmediated by antecedent erroneous assumptions or beliefs, or high moral expectations held by one person of another which exceed the requirements of the general law and the prohibition imposed by the statute.[408]
[407] Miller [18] (French CJ & Kiefel J), referring to Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, 41 (Gummow J, Black CJ & Cooper J agreeing).
[408] Miller [21] (French CJ & Kiefel J).
The effect of any relevant statements or actions, or any silence or inaction, occurring in the context of a single course of conduct must be deduced from the whole course of conduct.[409] The state of knowledge of the person to whom the conduct is directed may be relevant, at least in so far as it relates to the content and circumstances of the conduct.[410] In a case of alleged misleading and deceptive conduct by one party vis a vis another individual party, it will be necessary to consider the conduct of the former, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known.[411] The existence of common assumptions and practices established between the parties or prevailing in the particular profession, trade or industry in which they carry on business, may also be relevant.[412]
[409] Campbell [102] (Gummow, Hayne, Heydon & Kiefel JJ), referring to Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 [109] (McHugh J).
[410] Campbell [26] (French CJ); Miller [21] (French CJ & Kiefel J).
[411] Campbell [27] (French CJ), referring to Butcher [37] (Gleeson CJ, Hayne & Heydon JJ).
[412] Miller [20] (French CJ & Kiefel J).
In determining an action for misleading or deceptive conduct, it is necessary to first identify contravening conduct and then to identify a causal connection between that conduct and the loss and damage allegedly suffered.[413] However, there may be practical overlaps in the resolution of those logically distinct questions. The characterisation of conduct may involve assessment of its notional effects, judged by reference to its context. The same contextual factors may play a role in determining causation.[414] Determination of the causation of loss or damage may require account to be taken of subjective factors relating to a particular person's reaction to conduct found to be misleading or deceptive or likely to mislead or deceive.[415]
[413] Campbell [24] (French CJ), [102] (Gummow, Hayne, Heydon & Kiefel JJ).
[414] Campbell [24] (French CJ).
[415] Campbell [28] (French CJ).
The learned primary judge did not elide the question of causation with the characterisation of the conduct as misleading or deceptive, nor did he determine causation and then reason backwards to the conclusion that there must have been misleading or deceptive conduct. The paragraphs of the learned primary judge's reasons on which the respondents' grounds focused do not reflect the entirety of his Honour's reasoning to the conclusion that Mr Hitchcock was misled. When the learned primary judge's reasoning as a whole is considered, it is apparent his Honour correctly applied those principles.
The learned primary judge commenced his analysis of whether the respondents' conduct was misleading or deceptive by identifying the relevant principles: that whether conduct is misleading or deceptive is a question of fact, to be considered against the background of the relevant circumstances, including the relationship between the parties, and communications between them, having regard to what was known to the respondents and when that information was available; that the statutory cause of action did not require that there be a legal or equitable obligation to disclose; and the basis for a reasonable expectation of disclosure.[416] The respondents do not contend that there was any error in his Honour's discussion of those principles.
[416] RFD [474] [475].
His Honour then turned to consider the relationship between the parties and their communications. His Honour identified the following factors in relation to the parties' relationship:[417]
•From late 2007, Mr Hitchcock had been negotiating with the respondents for the sale of his shares.
•All parties knew that Mr Hitchcock wanted to retire, and to maintain, at most, a role as a consultant or agent; and the respondents knew that he was influenced by personal factors, including a potentially life threatening heart disease, and that he was anxious to leave Tennessee for his health and for family reasons, and needed money for the move.
•Mr Hitchcock's desire to sell his shares did not wane before he signed the Share Buy Back Agreement in July 2011, and if anything his desire to sell became more pressing in late 2010.
•The respondents must have known that Mr Hitchcock depended on them, either formally or informally, through his relationship with Mr Hallam and Mr Van Veen, for information about CTEC. This latter finding was clearly crucial to the existence of a reasonable expectation that the respondents would keep Mr Hitchcock informed about facts concerning CTEC's financial position and prospects.
[417] RFD [476] [479].
His Honour identified the following matters in relation to the communications between the parties:[418]
•The respondents knew Mr Hitchcock had been told about CTEC's difficulties with finance for security bonds and in obtaining further work.
•Mr Neil Robinson had painted a very gloomy picture in September 2010, and Mr Hitchcock had accepted that outlook of CTEC's prospects.
•Mr Hitchcock was given some information about the attempts CTEC was making to get work, including that CTEC was working on proposals for the Merredin project and the McKee project, and that it was tendering for the Diamantina project but that was a 'longshot'.
•While Mr Hallam and Mr Van Veen spoke to Mr Hitchcock regularly, it was not possible to make a definite finding about how much they told him.
•The desirability of a merger or joint venture with a bigger company, to assist with security bonds, so as to enable CTEC to pursue larger or multiple projects had been mentioned, but Mr Hitchcock knew only what he was told. Whatever information Mr Hitchcock was given, it was not of the quality or detail equivalent to the information made available to those involved in the day to day management of CTEC.
[418] RFD [479] [482].
The learned primary judge noted that what Mr Hitchcock was told had to be considered in light of what was in fact happening, which, relevantly for present purposes, included that:[419]
•CTEC was advised that it was the preferred contractor for the Merredin contract on 26 November 2010, and in January 2011 it recorded that contract as part of its current order book (although the contract itself was not awarded till 23 March 2011).
•CTEC received a letter advising of a conditional agreement for the Diamantina project on 25 March 2011, and on 12 May 2011 it entered into an early purchase agreement which authorised it to contract to reserve timeslots with the equipment manufacturer for that project.
•There were major questions regarding CTEC's ability to provide the performance securities necessary to secure the Diamantina contract, and these were not resolved until December 2011.
[419] RFD [483].
The learned primary judge found that the Merredin and Diamantina projects were the most significant at the time Mr Hitchcock was negotiating the sale of his shares, but while he was given general information, he was not told about the Merredin contract award, or the conditional agreement and early purchase agreement for the Diamantina project.[420]
[420] RFD [484].
The learned primary judge clearly regarded the failure to convey this information as significant, given that Mr Hitchcock had, on the basis of what he had previously been told, reduced his expectations so that he was prepared to accept less than half of what he originally sought for the sale of his shares, and had been negotiated down in payment terms.[421]
[421] RFD [485].
As for the Forge negotiations, the learned primary judge found that:[422]
•There were discussions about a close relationship between CTEC and Forge in early June 2011.
•The first draft of a heads of agreement contemplating Forge's acquisition of CTEC was dated 15 June 2011.
•On 20 June 2011, Mr Neil Robinson advised the CTEC shareholders (but not Mr Hitchcock) of the proposed merger.
•Between 22 June and 24 June 2011, Mr Neil Robinson and Mr Hutchinson exchanged proposals for the acquisition.
[422] RFD [486].
The learned primary judge then noted that on 24 June 2011, Mr Neil Robinson forwarded documents to Mr Hitchcock concerning the purchase of his shares, with modified payments to help CTEC with its cash flow.[423] His Honour's earlier factual findings left no doubt that nothing in that information disclosed the developments concerning the Merredin contract, the Diamantina contract or the Forge negotiations, or otherwise qualified or corrected the gloomy picture of CTEC's finances that, up to that point, had been conveyed to Mr Hitchcock. It is apparent that the learned primary judge regarded the award of the Merredin contract, the developments in relation to the Diamantina contract, and the Forge negotiations as information which suggested that CTEC's financial position and prospects were no longer as poor as the respondents had previously led Mr Hitchcock to believe.
[423] RFD [243].
The learned primary judge thus identified the respondents' failure to inform Mr Hitchcock of the award of the Merredin contract, the developments in relation to the Diamantina contract, and the Forge negotiations, as the conduct which was said to be misleading or deceptive.
The key questions identified by the learned primary judge summarised at [222] above when viewed in the context of the reasoning which preceded them, were clearly directed to the question of whether Mr Hitchcock was misled by the failure of the respondents to tell him about the award of the Merredin contract, the developments in the Diamantina contract, and the Forge negotiations. Implicit in the questions posed by his Honour was the assumption that the absence of that information left Mr Hitchcock in the position where his view as to the value of his CTEC shares continued to be based on the gloomy picture of its finances and prospects that had been conveyed to him. In other words, his Honour clearly regarded the fact that Mr Hitchcock was willing to proceed with the sale of the shares for $1.15 million (which price had been proposed by Mr Neil Robinson on 13 or 14 December 2010, in light of CTEC's cash flow problems and financial position[424]) as evidence that he had been misled as to CTEC's true financial position and prospects. He had been misled by the failure of the respondents to provide him with significant new information concerning the award of the Merredin contract, developments in relation to the Diamantina contract, and the Forge negotiations. It is apparent that his Honour regarded the negotiations with Forge, and the potential rewards for shareholders from its acquisition of CTEC, in particular, to be especially significant information, so that the failure to disclose that information alone led him into error in his understanding of CTEC's true financial position and prospects as at 26/27 June 2011 when he signed the Principles of Sale Agreement.[425]
[424] RFD [180].
[425] RFD [490].
The learned primary judge's key finding (set out at par [399] above) is expressed in succinct terms. But when read in light of the context outlined above, his Honour's finding must be understood as a finding to the following effect:
•the respondents knew that Mr Hitchcock relied on them for information about CTEC (so that this was not an ordinary commercial relationship where the parties were not obliged to disclose information to each other in the course of their negotiations);
•Mr Hitchcock had been given information by the respondents about CTEC's poor financial position in the previous months, which was accurate at the time, and on which he clearly relied, because it resulted in him indicating that he was prepared to accept a price and terms that were very favourable to CTEC (compared with the price he had initially sought);
•in those circumstances, there existed, prior to June 2011, a reasonable expectation that the respondents would inform Mr Hitchcock of any relevant information in relation to CTEC's financial position and prospects, particularly information which suggested that there had been a change in its financial position and prospects;
•by 24 June 2011, the progress of the Forge negotiations, in particular, suggested that CTEC's financial prospects were far more optimistic than they had been, albeit not assured, because if the acquisition proceeded, there would be a very significant reward for CTEC's shareholders;
•the information Mr Hitchcock was given prior to 26/27 June 2011 did not include that information, or information in relation to the award of the Merredin contract, and the developments in relation to the Diamantina contract and the Forge negotiations; and
•the respondents' failure to give Mr Hitchcock that information resulted in him being misled as to CTEC's financial position and prospects as at 26/27 June 2011 (as evidenced by the fact that he proceeded to enter into the Principles of Sale Agreement in which he agreed to sell his shares for a much reduced price compared with what he initially sought), and thereby constituted misleading or deceptive conduct on the part of the respondents.
Understood in this way, his Honour did not err in his reasoning to the conclusion that the respondents had engaged in misleading or deceptive conduct.
The fact that the learned primary judge referred to Mr Hitchcock having been misled by entering into the Principles of Sale Agreement does not establish that he elided the question of characterisation of the respondents' conduct with the question of causation. The fact that Mr Hitchcock entered into the Principles of Sale Agreement was both evidence that he was misled by the failure of the respondents to provide him with information in relation to the Forge negotiations, and evidence relevant to the question of causation of his loss and damage. As I have already noted, the characterisation question may involve an assessment of the notional effects of the conduct in question, and those same factors may be relevant to causation.[426]
[426] Campbell [24] (French CJ).
Furthermore, far from eliding the characterisation question with the causation question, the learned primary judge went on to separately consider the question of causation.[427] He began by identifying the well‑settled principles in relation to causation. He then concluded that while there was no direct evidence that Mr Hitchcock was induced by the respondents' misleading or deceptive conduct to enter into the Principles of Sale Agreement 'the inference that he was is not just more likely, but overwhelming when one looks [at] how his expectations dropped to less than half of what he had been asking for over the previous three or more years'.[428]
[427] RFD [492] [493].
[428] RFD [494].
Secondly, counsel for Goldspan and Mr Hallam submitted[429] that no reasonable expectation of disclosure could have arisen, given that Mr Hitchcock was a knowledgeable and sophisticated businessman who had expressed no interest in knowing anything about the ongoing activities of CTEC, and because the price for the sale of his shares had been agreed in December 2010.
[429] First and Fourth respondents Notice of Contention [84].
I am unable to accept these submissions. The facts found by the learned primary judge clearly supported his finding that Mr Hitchcock relied on the respondents to give him information about CTEC's financial position and prospects, and that they were aware that that was the case. While it was the case that Mr Hitchcock had indicated in December 2010 that he would be willing to sell his shares for $1.15 million, no binding agreement was reached at that point, and the terms of the sale of his shares continued to be the subject of negotiation until 26/27 June 2011 when Mr Hitchcock signed the Principles of Sale Agreement. It was not until that point that any binding agreement came into existence. Furthermore, the negotiations which continued throughout the first half of 2011 were primarily concerned with the terms of the payment of instalments of the purchase price. Throughout those negotiations (and indeed, to 27 June 2011[430]), Mr Neil Robinson's stated position to Mr Hitchcock was consistently based on CTEC's continuing poor financial position and cash flow. Information concerning the Forge negotiations was clearly relevant to an assessment of CTEC's financial position and prospects. While the outcome of those negotiations was not certain, the fact that the negotiations were ongoing, and proceeding apace, suggested a far more optimistic outlook for CTEC's financial prospects than was previously the case. In those circumstances, the learned primary judge was correct to conclude that there was a reasonable expectation that the information would have been provided to Mr Hitchcock.
[430] RFD [247].
Thirdly, counsel for Goldspan and Mr Hallam submitted[431] that to the extent that the learned primary judge implicitly found that there was misleading or deceptive conduct by the respondents, that conclusion was inconsistent with his earlier findings, inconsistent with the unchallenged evidence and/or based upon a case that had not been pleaded or run at the hearing, in that Mr Hitchcock was given information about the Merredin contract, and that it was not part of the case against them that he had not been given all information about the Diamantina contract.
[431] First and Fourth respondents' Notice of Contention [45].
For the reasons outlined at [421] above, whether or not Mr Hitchcock was given information in relation to the award of the Merredin contract, or the developments in relation to the Diamantina contract, makes no difference to the outcome of these grounds of the Notices on Contention, because the primary judge's conclusion was based on the failure by the respondents to advise Mr Hitchcock of the Forge negotiations, and it was not disputed that they did not do so.
Fourthly, counsel for the Robinsons submitted[432] that:
•The learned primary judge erred in concluding that if Mr Hitchcock was misled by the conduct of Neil Robinson and Kevin Robinson in entering into the Principles of Sale Agreement, that was determinative of the misleading or deceptive conduct claim.
•The primary judge's findings on the misleading or deceptive conduct claim were founded on all respondents having the requisite knowledge which was not disclosed to Mr Hitchcock. But Goldspan, which held Mr Hitchcock's shares, and which was in fact the party to the Share Buy Back Agreement, had full knowledge and was not misled.
[432] Second and Third respondents' Notice of Contention [7].
I am unable to accept these submissions for the same reasons as are set out above in relation to ground 1 of the Robinsons' Notice of Contention.

Fifthly, counsel for the Robinsons submitted[433] that the primary judge failed to make any finding that the Robinsons engaged in misleading or deceptive conduct and there was no evidence that Mr Hitchcock was misled or induced by their conduct in entering into the Share Buy Back Agreement
[433] Second and Third respondents' Notice of Contention [8].
As I have explained, properly understood, the learned primary judge made a finding that Mr Hitchcock was misled by the conduct of the respondents. In so far as the submission contends that the Robinsons did not engage in conduct which was misleading or deceptive, I reject that submission for the same reasons as are set out above in relation to ground 1 of the Robinsons' Notice of Contention.

Respondents' alternative submissions that the learned primary judge erred in his finding in relation to causation

I turn, now, to the respondents' alternative submissions that the learned primary judge erred in his finding in relation to causation because he failed to give any, or sufficient, weight to numerous matters.[434] Those matters are summarised below, followed by my reasons as to why, viewed individually, they do not cast doubt on the learned primary judge's conclusion. I then deal with the implications of the totality of these matters for the correctness of the learned primary judge's finding.
[434] Second and Third respondents' Notice of Contention [16] [50]; First and Fourth respondents' document entitled 'Schedule of judgment references and additional evidentiary references relevant to liability and causation' (handed up during appeal hearing); see also ts 139.
The learned primary judge's finding as to causation is set out at [425] above.
First, the respondents submitted that the primary judge failed to give sufficient weight to the fact that the appellant did not plead, and there was no evidence, that Mr Hitchcock was led into error, induced by the silence of the respondents, in light of:
•his own knowledge about the value of CTEC and its business operations;
•the fact that Mr Robinson urged Mr Hitchcock to seek advice from Mr Hallam and Mr Van Veen, both of whom had full knowledge of all CTEC matters and who spoke regularly with him;
•the inference, which was open, that Mr Hitchcock took no steps to obtain information either because he was aware of it already through conversations with Mr Hallam and Mr Van Veen, or because he knew such information would not affect his decision to sell; and
•prior statements by Mr Hitchcock that indicated he wanted to sell his shares instead of being involved in 'risky' business ventures such as floating CTEC, or no longer wanted to be involved in the operations of CTEC because he had already decided to sell his shares as soon as possible.
I do not accept these submissions. In circumstances where:
•there was no system in place whereby Mr Hitchcock was regularly provided with information about CTEC's operations and financial position;
•Mr Hitchcock regularly communicated with Mr Hallam and Mr Van Veen, but where there was no evidence which permitted the learned primary judge to make a finding as to what they told Mr Hitchcock;
•having received information from Mr Neil Robinson, in particular, in relation to CTEC's gloomy financial outlook prior to December 2010, Mr Hitchcock indicated that he would be willing to sell his shares for half the price he had originally sought; and
•Mr Hitchcock wished to sell, but for the reasons outlined at [384] above, the reasons why he wished to sell were not so compelling at any time in the years leading up to 2011 as to overcome his desire to secure the best price CTEC was able to pay for his shares;
there was no reasonable basis for inferring that Mr Hitchcock took no steps to obtain financial information about CTEC because he already knew it or because that information would not affect his decision to sell. Rather, the compelling inference was that he took no steps to independently obtain financial information about CTEC because he relied on the other shareholders to provide all relevant information to him.
The matters relied on by the respondents do not undermine the learned primary judge's conclusion that Mr Hitchcock relied on the respondents' conduct, so that, having been led to believe that CTEC's financial position and prospects continued to be poor and that CTEC could not offer more for the purchase of his shares, and having not been informed of the negotiations with Forge, Mr Hitchcock was induced by that conduct to sell his shares for the price and on the terms set out in the Principles of Sale Agreement.
Secondly, the respondents submitted that the primary judge failed to give sufficient weight to the fact that:
•Mr Hitchcock made no relevant enquiries, despite substantial knowledge of all potential projects and restructuring attempts;
•there was no evidence as to how Mr Hitchcock calculated the price he was seeking for his shares from time to time, and the variations in price 'appear to have been completely random, unrelated to any valuation of CTEC, or its financial position, and driven by exigencies'; and
•there was no evidence, aside from two enquiries on 12 and 21 September 2010, of Mr Hitchcock requesting any information from CTEC or the respondents in relation to CTEC's financial position or potential projects for which it was tendering, and it can be inferred that the price he sought for his shares was not affected by those matters.
These matters do not cast doubt on the learned primary judge's finding as to causation. Having regard to the price Mr Hitchcock had initially sought for the sale of his shares and his reliance on the information provided to him by the respondents in relation to CTEC's financial position and prospects, the inference was compelling that Mr Hitchcock was persuaded to reduce the sale price for his shares on the basis of information he had been given by the respondents, and by Mr Neil Robinson in particular, in the period September to December 2010. (The learned primary judge found that that information was correct at the time.) Mr Hitchcock was then misled, particularly by the respondents' failure to inform him of the Forge negotiations, into thinking that CTEC's financial position and prospects remained unchanged. In those circumstances, the learned primary judge was correct to conclude that there was a compelling inference that on 26/27 June 2011, Mr Hitchcock was induced to sell his shares for the price, and on the terms, set out in the Principles of Sale Agreement (which was half the price he had initially wanted for his shares) because he had been misled into thinking that nothing about CTEC's financial position and prospects had changed.
Thirdly, the respondents submitted that the primary judge failed to give sufficient weight to:
•the fact that Mr Hitchcock had virtually no assets, he was concerned about his longevity, he was an impulsive decision maker, and his personal circumstances and his aversion to providing personal security for the financing of CTEC overwhelmed his decision making process; and
•the fact that Mr Hitchcock was, by February 2011, content with the agreed price for the shares and by 26/27 June 2011, his desire to leave Tennessee reached a crescendo, so that he signed the Principles of Sale Agreement notwithstanding the appellant's opposition.
These submissions appear to suggest that the price CTEC paid for his shares was irrelevant to Mr Hitchcock's decision to enter into the Principles of Sale Agreement. For the reasons set out above at [384] I reject that argument.
Fourthly, the respondents submitted that the combination of circumstances and Mr Hitchcock's state of mind in relation to leaving Tennessee was such that the more probable inference was that he would not have been prepared to stay his hand on selling his shares on the off‑chance that any of the many potential projects and restructuring proposals came to fruition. They further submitted that the appellant had cherry picked only those projects, and the potential restructuring with Forge, which proceeded, and that that constituted hindsight reasoning, in circumstances where most of CTEC's tenders for projects over the years were unsuccessful and those which succeeded were fraught with uncertainty.
These submissions do not cast doubt on the learned primary judge's conclusion. There can be no doubt that Mr Hitchcock was well aware that most of CTEC's tenders were unsuccessful. However, the possibility that Forge would acquire the entirety of CTEC, and the information about the negotiations during June 2011, presented a vastly different possible outcome both in the quantum of the financial benefit, and the time frame thereof ‑ for CTEC than the award of a tender (as in the case of the Merredin contract) or the possible successful award of a tender (as in the Diamantina contract). For the reasons outlined at [386] above, the outcome of the Forge negotiations was likely to be known within a relatively short period of time. If the acquisition proceeded, the financial benefit to CTEC and to Mr Hitchcock, if he remained a shareholder, was very substantial. In those circumstances, there is no reason to doubt the correctness of the learned primary judge's conclusion that it was the fact that he did not know about the Forge negotiations, by virtue of the respondents' conduct, and so was misled about CTEC's true financial position and prospects, that was the reason why Mr Hitchcock was induced to enter into the Principles of Sale Agreement on 26/27 June 2011.
I have taken into account all of the matters identified by the respondents, and considered them collectively, in combination with the balance of the unchallenged findings of the learned primary judge. Having done so, in my view the conclusion reached by the primary judge was correct.
These grounds in the Notices of Contention have no merit.

The Robinsons did not raise any issue of apportionment on their pleadings, and nor was apportionment the subject of any detailed submissions at trial. The learned primary judge dealt with the question of apportionment in brief terms, summarised at [230] above.
The decision of the learned primary judge on the apportionment of liability for the damages awarded to the appellant was a discretionary one to which the principles in House v The King[435] apply. An appellate court will not interfere with a primary judge's decision on apportionment unless the judge has made the kind of error that would justify an appellant court setting aside a discretionary decision. Error may be inferred from the outcome if it is outside the range of a reasonable judgment.[436]
[435] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ).
[436] Gregory Spencer Ward t/as Ward's Stock Transport v Watson [2021] WASCA 44 [202] citing O'Connor v Insurance Commission of Western Australia [2016] WASCA 95.
The apportionment of liability required a comparative examination of the conduct of each of the respondents, to assess the extent to which they were responsible for the loss and damage suffered by Mr Hitchcock.[437]
[437] cf Gregory Spencer Ward. See e.g. City Pacific Ltd (in liq) v CBRE (V) Pty Ltd [2021] NSWSC 456; Redmond Family Holdings v GC Access Pty Ltd [2016] NSWSC 1883.
Counsel for the Robinsons submitted that the primary judge failed to take into account or give proper weight to a number of factors, namely: that Goldspan held Mr Hitchcock's shares on trust for Mr Hitchcock; Goldspan was Mr Hallam's alter ego; Goldspan as trustee owed a duty of loyalty to Mr Hitchcock to act in his best interests; Mr Neil Robinson and Mr Kevin Robinson did not owe a fiduciary duty to Mr Hitchcock; Mr Hallam had knowledge of the matters not disclosed to Mr Hitchcock; Mr Hallam had a long‑standing business relationship and friendship with Mr Hitchcock and spoke to him regularly; Mr Neil Robinson suggested to Mr Hitchcock a few times that he should speak to Mr Hallam and Mr Van Veen for advice in relation to the sale of his shares and he received their advice; and that Mr Kevin Robinson's focus was on engineering and project implementation and he had little involvement in the management of CTEC.[438]
[438] Second and Third respondents' Notice of Contention [67].
In addition, counsel for the Robinsons submitted that:
[C]ontrary to the primary judge's finding, at [RFD] [527], there was no evidence that [Mr Kevin Robinson or Mr Neil Robinson] knew what Hallam or Van Veen, between them, were telling Hitchcock during their many communications with Hitchcock over the years.[439]
[439] Second and Third respondents' Notice of Contention [67].
The learned primary judge considered the part played by each of the respondents in causing the loss and damage suffered by Mr Hitchcock. His apportionment of equal responsibility between Goldspan and Mr Hallam on the one hand, and Mr Neil Robinson and Mr Kevin Robinson on the other hand, was an entirely orthodox outcome in a case in which his Honour had found that all of the respondents had participated in failing to disclose information to Mr Hitchcock. As for the learned primary judge's conclusion that Mr Hallam and Goldspan should be treated as one, that properly reflected the fact that Goldspan acted entirely through its director, Mr Hallam.
In so far as the Robinsons relied on the fiduciary relationship between Goldspan as trustee for Mr Hitchcock, in relation to his shares, and on Mr Hallam's friendship with Mr Hitchcock, those relationships were not advanced at trial as factors relevant to the conclusion that Goldspan or Mr Hallam engaged in misleading or deceptive conduct. (As the primary judge noted,[440] the statutory cause of action did not require that there be a legal or equitable obligation to disclose information.) Instead, the evidence in relation to the statutory causes of action relevantly concerned what information the respondents had or had not provided to Mr Hitchcock prior to his decision to enter into the Principles of Sale Agreement. The learned primary judge's conclusion that Goldspan and Mr Hallam (collectively), Mr Neil Robinson and Mr Kevin Robinson should bear equal responsibility, instead reflected his conclusion that the majority of the emails sent to Mr Hitchcock by the respondents were copied to all shareholders, so that each of them knew what Mr Hitchcock had and had not been told, and that each of the respondents thus participated in the failure to disclose information to Mr Hitchcock.[441]
[440] RFD [475].
[441] RFD [473].
As for the Robinsons' complaint that the primary judge failed to take into account that there was no evidence that Mr Kevin Robinson or Mr Neil Robinson knew what Mr Hallam or Mr Van Veen were telling Mr Hitchcock, that does not establish error in the primary judge's conclusion as to apportionment. The Robinsons did not give evidence that they understood that Mr Hallam or Mr Van Veen had told Mr Hitchcock about the negotiations with Forge. Furthermore, Mr Neil Robinson was personally involved in both the discussions with Forge, and negotiations with Mr Hitchcock in relation to the sale of his shares. The mere possibility that the other respondents might have told Mr Hitchcock of those matters could hardly diminish Mr Robinson's liability for failing to inform Mr Hitchcock of those matters himself.
I am not persuaded that the learned primary judge's reasoning in relation to the relative contribution of Goldspan and Mr Hallam (collectively), Mr Neil Robinson and Mr Kevin Robinson to the loss and damage suffered by Mr Hitchcock manifested any express error, or was outside the range of a reasonable judgment.
This ground in the Robinsons' Notice of Contention should be dismissed.

Conclusion

The appeal should be allowed and the Notices of Contention dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
3 DECEMBER 2021