Polley v Johnson & Anor - [2016] HCATrans 51

[2016] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S227 of 2015

B e t w e e n -
MICHELLE ELIZABETH POLLEY
Applicant
and
BELINDA JOHNSON
First Respondent
HOLLY WRAITH SMITH
Second Respondent
Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2016, AT 10.07 AM

MR M.A. ROBINSON, SC: If the Court pleases, I appear with my learned friend, MR P.M. SKINNER, for the applicant. (instructed by Legal Aid NSW)

MR T.A. GAME, SC: I appear for the second respondent, with MS M.T. ENGLAND. (instructed by Crown Solicitor for NSW)

FRENCH CJ: There is a submitting appearance for the ‑ ‑ ‑

MR GAME: First respondent.

FRENCH CJ: ‑ ‑ ‑ first respondent, is it? I think an extension of time is required?

MR ROBINSON: Yes, your Honour, I think it is only a short time.

FRENCH CJ: Mr Game, is that opposed? All right, you have the extension. Yes, Mr Robinson.

MR ROBINSON: Thank you, your Honour. Your Honours, we say this is an important case about the issue of search warrants in New South Wales which has implications throughout Australia, the Commonwealth and the States. Could I hand up to your Honours a small legislation bundle which will hopefully make my last point good? I will take your Honours to that momentarily. I will take you through the New South Wales scheme first.

FRENCH CJ: Well, I think we are reasonably familiar with the provisions; the reasonable grounds for believing that there are materials which would relate to a searchable offence ‑ ‑ ‑

MR ROBINSON: That is correct.

FRENCH CJ: ‑ ‑ ‑ and that operates at both the level of the officer applying and the eligible issuing officer.

MR ROBINSON: That is correct, and there is a second limb to that which is – that is the first limb, your Honours. The sections that are relevant are set out from page 99 in the application book. But the second limb is here, your Honours; at section 62(3), and that appears at page 113 of the application book.

FRENCH CJ: Yes.

MR ROBINSON: Section 62(3):

An eligible issuing officer –

which of course in this case is the Deputy Registrar of the local court:

when determining whether there are reasonable grounds –

and that is the section 48(1) point your Honour mentioned:

to issue a warrant, is to consider (but is not limited to considering) the following matters:
(a) the reliability of the information –

But the main one that we rely on here, your Honours, is:

(b) if the warrant is required to search for a thing –

and they are looking for a Harley Davidson motorcycle and a set of keys in this case, your Honours, and some insignia:

whether there is sufficient connection between the thing sought and the offence.

And here is where we…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] HCATrans 51
Decision Date

CaseChat Overview and Summary

The case of *Polley v Johnson & Anor* concerned a dispute between the appellant, Polley, and the respondents, Johnson and another. The proceedings originated in the Supreme Court of Queensland and were appealed to the High Court of Australia. The core of the dispute involved allegations of misleading and deceptive conduct under the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)) and the tort of deceit.

The High Court was required to determine whether the respondents had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of the *Trade Practices Act*. Additionally, the court had to consider whether the respondents had made fraudulent misrepresentations with the intention of deceiving the appellant, thereby constituting the tort of deceit. A further issue was the proper assessment of damages, should liability be established.

The High Court found that the respondents had engaged in misleading and deceptive conduct. The court reasoned that the representations made by the respondents, viewed objectively, were likely to mislead a reasonable person in the position of the appellant. The court applied the principles established in cases concerning misleading or deceptive conduct, focusing on the effect of the representations on the target audience. Regarding the tort of deceit, the court held that the appellant had not discharged the onus of proving fraudulent intent on the part of the respondents, a necessary element for that cause of action. The court therefore allowed the appeal in part, upholding the finding of misleading and deceptive conduct but dismissing the claim in deceit.

Orders