Pritchard v Racecage Pty Ltd
[1996] FCA 82
•23 FEBRUARY 1996
CATCHWORDS
Trade Practices - application of Trade Practices Act 1974 (Cth) to claims having a connection with the death of a person in a motor vehicle accident - presence of an activity in "trade or commerce" - causation - linking or connecting loss or damage to relevant conduct - s4K: "loss or damage" includes "injury" - "side-wind" effect of Trade Practices Act - rule in Baker v Bolton - actio personalis rule.
Practice and Procedure - application to strike out statement of claim.
Territory Legislation - effect on Motor Accidents (Compensation) Act 1974 (NT) of Trade Practices Act 1974 (Cth)
G Q Taperell, R B Vermeesh and D J Harland, Trade Practices and Consumer Protection 3Ed (Butterworth, Sydney, 1983)
Russell V Miller, Annotated Trade Practices Act 16Ed (The Law Book Co, Sydney, 1995)
Trade Practices Act 1974 (Cth)
Trade Practices (Amendment) Act No 81 of 1977 (Cth)
Motor Accidents (Compensation) Act 1974 (NT)
Judiciary Act 1903 (Cth)
Compensation (Fatal Injuries) Act 1974 (NT)
Law Reform (Miscellaneous Provisions) Act 1956 (NT)
Northern Territory (Self-Government) Act 1978 (Cth)
Seat of Government (Administration) Act 1910 (Cth)
Northern Territory Acceptance Act 1910 (Cth)
Baker v Bolton (1808) 1 Camp 493; 170 ER 1033
March v E & M H Stramare Pty Limited & Anor (1991) 171 CLR 506
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No.2) (1987) 16 FCR 410
Stapley v Gypsum Mines Ltd [1953] AC 663
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Webb Distributors (Aust) Pty Ltd v The State of Victoria (1993) 179 CLR 15
Aristotite v Gladstone Park Shopping Centre Pty Ltd (1983) 5 ATPR 40-370
Zoneff v Elcom Credit Union Ltd (1990) 12 ATPR 41-058
Steiner v Magic Carpet Tours Pty Ltd (1984) 6 ATPR 40-490
Baxter v British Airways PLC (1988) 82 ALR 298
Brabazon v Western Mail Ltd (1984-1985) 58 ALR 712
Woolworths Ltd v Crotty (1942) 66 CLR 603
Brown v Jam Factory Pty Ltd (1981) 53 FLR 340
Gates v City Mutual Life Assurance Society Ltd (1985-1986) 160 CLR 1
Rose v Ford [1937] AC 826
Yorke v Ross Lucas Pty Ltd (1982) 69 FLR 116
Frith v Gold Coast Mineral Springs Pty Ltd (1983) 65 FLR 213 Corbidge v Bakery Fun Factory Shop Pty Ltd (1984) 6 ATPR 40- 493
Shepherd v Noyes Bros Pty Ltd (1985) 7 ATPR 40-588
Public Trustee v Zoanetti (1945) 70 CLR 266
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd (1988) 78 ALR 193
Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) 12 ATPR 41-017
Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 109 ALR 638
Commercial Bank of Australia Ltd v Amadio (1982-1983) 151 CLR 447
Louth v Diprose (1992) 175 CLR 621
Stern v McArthur (1988) 165 CLR 489
Reg. v Kearney: Ex parte Japanangka (1983-1984) 158 CLR 395 University of Wollongong v Metwally (1984) 158 CLR 447
Webster v MacIntosh (1980) 49 FLR 317
No: DG5 of 1995
SUSAN ANN PRITCHARD Applicant
- and -
RACECAGE PTY LTD (ACN 058 876 298) First Respondent
- and -
JOHN MICHAEL LARGE, DAVID HOWARD TAIT, ROB COPPINS, STEVEN CHARLES CHOPPING, TERRENCE YORK, PETER BREADY, COLIN OSBORNE, SIR GUY BOILEAU, BRUCE MALCOLM KEYS, BRIAN ROBERT PAYNE, TIMOTHY THEODORE SCHENKEN and EDGAR ROY RITCHIE
Second Respondents
O'LOUGHLIN J.
ADELAIDE (Heard in Darwin)
23 FEBRUARY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NORTHERN TERRITORY DISTRICT REGISTRY)
)
GENERAL DIVISION )
No: DG5 of 1995
BETWEEN:
SUSAN ANN PRITCHARD
Applicant
- and -
RACECAGE PTY LTD (ACN 058 876 298)
First Respondent
- and -
JOHN MICHAEL LARGE, DAVID HOWARD TAIT, ROB COPPINS, STEVEN CHARLES CHOPPING, TERRENCE YORK, PETER BREADY, COLIN OSBORNE, SIR GUY BOILEAU, BRUCE MALCOLM KEYS, BRIAN ROBERT PAYNE, TIMOTHY THEODORE SCHENKEN and EDGAR ROY RITCHIE
Second Respondents
MINUTES OF ORDER
JUDGE MAKING ORDER : O'LOUGHLIN J.
WHERE MADE : ADELAIDE (Heard in Darwin)
DATE OF ORDER : 23 FEBRUARY 1996
The Court answers the following questions ordered to be determined separately from any other question in the action as follows:
QUESTION 1
Are respectively the
(a)applicant
(b)children
(c)estate
precluded from recovering damages and other compensation pursuant to Part VI of the Trade Practices Act by reason of s5 of the MAC Act. That is, is the defence raised in paragraph (4)(a) of the
defence of the first respondent and paragraph 1.5B of the defence of the second respondent a complete defence?
ANSWER TO QUESTION 1: YES
QUESTION 2
Are respectively the
(a)applicant
(b)children
precluded from claiming any relief pursuant to the Trade Practices Act because of the rule in Baker v Bolton (1808) 1 Camp 493; 170 ER 1033? That is, is the defence raised in paragraph 4(b) of the first respondent's defence a complete defence?
ANSWER TO QUESTION 2: YES
QUESTION 3
Can respectively the
(a)applicant
(b)children
(c)estate
suffer 'loss' or 'damage' within the meaning of s82 or s87 of the Trade Practices Act? That is, is the defence raised in paragraph 1.5A of the second respondent's defence a complete defence? Similarly, is the defence raised by paragraphs 4(d) and 4(g) of the first respondent's defence a complete defence?
ANSWER TO QUESTION 3: NO in the circumstances of this case.
QUESTION 4
(a)Did any action that the deceased may have had pursuant to the Trade Practices Act survive his death?
(b)If the answer to question 5(a) (sic: 4(a) obviously) was no, is the applicant precluded from claiming damages or any relief whatsoever on behalf of the estate pursuant to the Trade Practices Act?
That is, is the defence pleaded in paragraph 4(f) of the first respondent's defence a complete defence?
ANSWER TO QUESTION 4(a): NO
ANSWER TO QUESTION 4(b): YES
QUESTION 5
Assuming the death of the deceased was [caused] by conduct of the first respondent allegedly in breach of s51AA and s52 of the Trade Practices Act, is the deceased's estate or is the applicant on behalf of the estate able to recover damages arising from the death of the deceased pursuant to s82 of the Trade Practices Act? That is, is the defence pleaded in paragraph 4(g) of the first respondent's defence a complete defence?
ANSWER TO QUESTION 5: NO
QUESTION 6
Does the Court have power to make orders against the respondents under s87 of the Trade Practices Act to compensate:
(a)the applicant for, or prevent or reduce, the loss or damage she has suffered or is likely to suffer;
(b)the deceased's estate for, or prevent or reduce, the loss or damage it has suffered or is likely to suffer, and further or alternatively
(c)the children for, or prevent or reduce, the loss or damage they have suffered or are likely to suffer
by reason of the death of the deceased? That is, is the defence raised by paragraph 4 of the first respondent's defence a complete defence to a claim made pursuant to s87 of the Trade Practices Act?
ANSWER TO QUESTION 6: NO
AND THE COURT ORDERS THAT:
The first respondent file and serve within five days of this date
1.1 minutes of order in terms consistent with these reasons
1.2written submissions with respect to all consequential matters
The remaining parties have liberty to speak to the minutes
The remaining parties file and serve within ten days of this date their respective written submissions with respect to all consequential matters.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NORTHERN TERRITORY DISTRICT REGISTRY)
)
GENERAL DIVISION )
No: DG5 of 1995
BETWEEN:
SUSAN ANN PRITCHARD
Applicant
- and -
RACECAGE PTY LTD (ACN 058 876 298)
First Respondent
- and -
JOHN MICHAEL LARGE, DAVID HOWARD TAIT, ROB COPPINS, STEVEN CHARLES CHOPPING, TERRENCE YORK, PETER BREADY, COLIN OSBORNE, SIR GUY BOILEAU, BRUCE MALCOLM KEYS, BRIAN ROBERT PAYNE, TIMOTHY THEODORE SCHENKEN and EDGAR ROY RITCHIE
Second Respondents
REASONS FOR JUDGMENT
Coram: O'Loughlin J.
Place: Adelaide (Heard in Darwin)
Date : 23 February 1996
Determination of questions to be tried as separate questions pursuant to the provisions of O 29 r2 of the Federal Court Rules and pursuant to the order of a Judge of this court dated 31 May 1995.
These proceedings were instituted by the applicant, Susan Ann Pritchard, by application and statement of claim filed in court on 16 March 1995. In her statement of claim the applicant has pleaded that, pursuant to a grant of Letters of Administration dated 20 December 1994, she is the
administrator of the estate of her late husband, Keith Alan Pritchard ("the deceased"). It is pleaded that he died near Stuart Well, Stuart Highway, via Alice Springs in the Northern Territory when struck by a motor vehicle on 24 May 1994. The applicant also pleaded that she is the widow of the deceased and that she and their three young children were, at all material times prior to his death, dependent upon the deceased.
In par 1.5 of the statement of claim the applicant has pleaded that she has instituted these proceedings against the respective respondents first, on her own behalf, next on behalf of the estate of the deceased in her capacity as administrator of the estate and finally in her capacity as the next friend of her three children. The activities and identities of the respondents, as extracted in summary form from the statement of claim, are as follows: in or about March 1993, as a result of the efforts of two men, Allan George Moffatt and Graham James McVean, the first respondent agreed with the Government of the Northern Territory to organise, promote and conduct a motor sports event to be known as the "Cannonball Run" ("the Rally"). The Rally commenced on 20 May 1994 with competitors driving from Darwin to Ayers Rock and back to Darwin. The second respondents were said to be the persons who managed, controlled and otherwise acted for and on behalf of an unincorporated association of natural persons and incorporated and unincorporated bodies known as the "Confederation of Australian Motor Sports" (CAMS). It is pleaded, inter alia, that CAMS is the organisation that is responsible for the safe conduct of motor sport activities in Australia.
In par 12 of the Statement of Claim it is alleged that the first respondent requested members of the Darwin Motor Sports Club Inc ("the Club") to act, without remuneration, as Officials during the conduct of the rally. The deceased, who was said to be a car racing enthusiast and a member of the Club, allegedly agreed to act as such an Official. In pars 13 and 14 there are pleas that the first respondent represented to the members of the Club, including the deceased, to the Government of the Territory, including the police, to the second respondents and to the public that it was an expert in the organisation, promotion and conduct of events such as the Rally, that the Rally would be conducted safely and that Officials (of whom the deceased was one) would not be exposed to an unreasonable risk of injury. It was said that those representations were made in order to persuade the authorities and the second respondents to grant the necessary permits to conduct the Rally and to induce the members of the Club to co-operate in the organisation, promotion and conduct of the Rally. There then follows a plea that the representations were false and that, by making them, the first respondent engaged in conduct that was misleading or deceptive, in breach of the provisions of s52 of the Trade Practices Act 1974 (Cth) ("the TPA"). Subsection (1) of that section is in the following terms:
"(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive"
It is claimed in par 16 that the second respondents also engaged in misleading or deceptive conduct in breach of s52 of the TPA, in that they represented to the authorities, including the police, and to the members of the Club, that CAMS would not issue a permit for the Rally unless it had fully and properly investigated all aspects of the event and had satisfied itself that the Rally would be conducted in a safe environment. The issuing of a permit also allegedly meant that CAMS' representatives at the Rally would monitor and supervise the event to ensure that the rules and principles contained in the National Competition Rules and the Manual of Motor Sport prescribed by CAMS in respect of such events would be observed and that the Rally would be conducted safely. In so far as the first respondent's or second respondents' conduct concerned representations as to future matters, the applicant also relied on s51A of the TPA.
Additional pleas of unconscionable conduct have also been made against the first respondent and the second respondents. It is alleged that the first respondent owed a duty to various parties, including the Officials, to act in their interests when making decisions that might affect the safe conduct of the Rally. As to the second respondents, it is said that CAMS' duty to the same parties arose when it was considering whether to issue a permit for the Rally. In breach of those duties, and acting in their own interests and not in the interests of the Officials and others (so it is said), the first respondent and the second respondent, "engage(d) in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the (Northern Territory of Australia)" contrary to the provisions of subs51AA(1) of the TPA.
At this stage it may be assumed that the first respondent is a "trading corporation formed within the limits of Australia" and so bound by the provisions of the TPA and that the TPA applies to the second respondents because of subs6(4) which extends relevant provisions of the Act to conduct in a Territory.
The statement of claim then alleges in par 29 that if the first respondent and the second respondents had not engaged in misleading and deceptive conduct or if they had not respectively engaged in unconscionable conduct then either the authorities would not have permitted the Rally to occur or it would have been conducted under more stringent conditions or, alternatively, the deceased would not have participated in the Rally as an Official. These were said to be the circumstances that led to the deceased volunteering to be an Official and, later, to his death when he was struck by the vehicle of one of the Rally competitors whilst carrying out his duties as an Official at a finish control point.
The Statement of Claim concludes as follows:
"30.The Deceased's death was caused by the breach of ss52 and 51AA of the TPA by the First Respondent and further or alternatively the Second Respondents as aforesaid.
31.By reason of the breach of ss51AA and 52 of the TPA as aforesaid, the Applicant the Estate and the Children have suffered loss and damage.
Particulars
Particulars of loss and damage will be provided.
32.AND THE Applicant CLAIMS in her own right, on behalf of the estate and on behalf of the Children:
32.1damages pursuant to s82 of the TPA
32.2orders pursuant to s87 of the TPA to compensate for the loss and damage;
32.3interest; and
32.4costs."
The respondents have challenged the applicant's right to institute these proceedings in their present form. The extracts from par 4 of the first respondent's defence that have led to the need to determine the separate questions are as follows:
"4. The first respondent denies the allegations made in paragraph 1.5 of the Claim and says that the proceedings are not maintainable by the applicant on her own behalf, nor on behalf of the Estate nor on behalf of the Children.
PARTICULARS
(a)s5(1)(a) Motor Accidents (Compensation) Act 1974 (NT) ('the MAC Act') deprives the applicant and the children of all actions for damages as at all material times
(i)the applicant and the children and the deceased were residents of the Northern Territory
(ii)the death of the deceased was the result of a motor vehicle accident that occurred in the Northern Territory;
(b)the Rule in Baker v Bolton (1808) 1 Camp 493; 170 ER 1033 precludes the applicant and the children from claiming any relief pursuant to the Trade Practices Act;
(c)...
(d)any loss or damage suffered by the applicant or the children (which is denied) arises from the death of the deceased and is therefore not recoverable pursuant to the provisions of the Trade Practices Act;
(e)...
(f)any action that the deceased may have had against the first respondent pursuant to the Trade Practices Act (which is denied) did not survive the death of the deceased so that the estate or a representative of the estate cannot maintain any proceeding pursuant to the Trade Practices Act;
(g)s82 of the Trade Practices Act does not enable an estate or the representative of an estate to recover the amount of the loss or damage suffered by conduct of another person that was done in contravention of a provision of Part IV or V of the Act."
The second respondents pleaded, so far as it is material to these proceedings, in these terms:-
"1. As to paragraph 1 of the Statement of Claim, the Second Respondents:-
1.1...
1.2 ...
1.3 ...
1.4 ...
1.5deny the entitlement of the Applicant to maintain the within proceeding, whether suing on her own behalf, on behalf of the Estate, and/or on behalf of the Children, on the following grounds:-
1.5Aneither the Applicant, nor the Estate nor the Children have suffered 'loss or damage' within the meaning of s82 or s87 of the Trade Practices Act;
1.5Bthis proceeding is an action for damages in respect of the death of the Deceased in or as the result of an accident which occurred in the Territory, which action does not lie by virtue of s5 Motor Accidents (Compensation) Act of the Northern Territory, the Deceased being at the time of the accident a resident of the Territory."
The six questions that have been formulated as a result of the issues raised by the respondents in their defences have been identified in these terms:
"QUESTION 1
Are respectively the
(a)applicant
(b)children
(c)estate
precluded from recovering damages and other compensation pursuant to Part VI of the Trade Practices Act by reason of s5 of the MAC Act? That is, is the defence raised in paragraph (4)(a) of the defence of the first respondent and paragraph 1.5B of the defence of the second respondent a complete defence?
QUESTION 2
Are respectively the
(a)applicant
(b)children
precluded from claiming any relief pursuant to the Trade Practices Act because of the rule in Baker v Bolton (1808) 1 Camp 493; 170 ER 1033? That is, is the defence raised in paragraph 4(b) of the first respondent's defence a complete defence?
QUESTION 3
Can respectively the
(a)applicant
(b)children
(c)estate
suffer 'loss' or 'damage' within the meaning of s82 or s87 of the Trade Practices Act? That is, is the defence raised in paragraph 1.5A of the second respondent's defence a complete defence? Similarly, is the defence raised by paragraphs 4(d) and 4(g) of the first respondent's defence a complete defence?
QUESTION 4
(a)Did any action that the deceased may have had pursuant to the Trade Practices Act survive his death?
(b)If the answer to question 5(a) (sic: 4(a) obviously) was no, is the applicant precluded from claiming damages or any relief whatsoever on behalf of the estate pursuant to the Trade Practices Act?
That is, is the defence pleaded in paragraph 4(f) of the first respondent's defence a complete defence?
QUESTION 5
Assuming the death of the deceased was [caused] by conduct of the first respondent allegedly in breach of s51AA and s52 of the Trade Practices Act, is the deceased's estate or is the applicant on behalf of the estate able to recover damages arising from the death of the deceased pursuant to s82 of the Trade Practices Act? That is, is the defence pleaded in paragraph 4(g) of the first respondent's defence a complete defence?
QUESTION 6
Does the Court have power to make orders against the respondents under s87 of the Trade Practices Act to compensate:
(a)the applicant for, or prevent or reduce, the loss or damage she has suffered or is likely to suffer;
(b)the deceased's estate for, or prevent or reduce, the loss or damage it has suffered or is likely to suffer, and further or alternatively
(c)the children for, or prevent or reduce, the loss or damage they have suffered or are likely to suffer
by reason of the death of the deceased? That is, is the defence raised by paragraph 4 of the first respondent's defence a complete defence to a claim made pursuant to s87 of the Trade Practices Act?
For the purpose of determining the answers to these questions the parties agreed the following facts:
"1.The Deceased died in or as a result of 'an accident that occurred in the Territory' within the meaning of the Motor Accidents (Compensation) Act (Northern Territory) (the 'MAC Act').
The Deceased was at the time of the accident a 'resident of the Territory' within the meaning of the MAC Act."
In addition to the six separate questions that must be answered, the respondents seek orders striking out selected sections of the statement of claim. Those sections are, first, those alleging misleading or deceptive conduct in breach of s52 of the TPA. As to them, the first respondent submitted that they fail to disclose a cause of action on behalf of the applicant and the children as it is not alleged that either the applicant or the children relied on the conduct of the first respondent which is alleged to be in breach of s52. The second area is one that is raised by both respondents. Each claim that those sections of the statement of claim alleging unconscionable conduct in breach of s51AA of that Act should be struck out as failing to disclose a cause of action.
By notice of motion the Attorney-General of the Northern Territory sought an order that he be joined as a party to these proceedings for the limited purpose of intervening in the argument with respect to the application of the Territory's legislation to the facts leading up to the death
of the deceased. His submission was that s5 of the MAC Act had abolished certain common law and statutory claims for damages and that the circumstances surrounding the death of Mr Pritchard and his death was a claim that had been abolished. He submitted that the MAC Act had introduced a no-fault statutory scheme of compensation in place of the abolished claims and that the applicant had been paid her statutory entitlement of $99,075.00. That application for joinder was not the subject of any objection and leave was granted.
Notice to the Attorneys-General of the Commonwealth and States was given in the name of the applicant pursuant to the provisions of s78B of the Judiciary Act 1903 (Cth) regarding the constitutional issues that were raised in these proceedings. I am satisfied by the contents of the affidavit of Athol Geoffrey James, the applicant's solicitor, that there has been due compliance with the provisions of subs(1) of that section and that a reasonable time had elapsed since the giving of the notice. No other Attorneys-General sought leave to intervene.
To set the matter in context it is appropriate to make some obvious comments. First, it will be noted that the applicant has not named the driver of the motor vehicle that struck her husband as a respondent; no cause of action in negligence has been pleaded. No claim has been made under the MAC Act nor has any claim been made under the Compensation (Fatal Injuries) Act 1974 (NT) (the "CFI Act" or the Northern Territory's "Lord Campbell's Act"). Finally, no attempt has been made to rely on the Law Reform (Miscellaneous Provisions) Act 1956 (NT), (the "Law Reform MP Act"); that statute is the legislative provision that entitles an estate to stand in the shoes of the deceased and to bring an action in the name of the estate. It is clear that the pleader has distanced the applicant's case as far as possible from a "road-accident" claim. Indeed, it has been alleged in par 30 of the statement of claim only that the deceased's death was caused by breaches of ss52 and 51AA of the TPA by the first respondent and the second respondents or one or other of them. Reference to the necessary causal link commenced in par 29 of the statement of claim, the contents of which, concluding with the plea that the deceased would not have acted as an Official but for the conduct of the respondents, have already been mentioned. Then par 31 pleads that by virtue of the breaches of ss51AA and 52 of the TPA the applicant, the estate and the children have suffered loss and damage. Finally, in par 32, the applicant, the estate and the children, as well as claiming interest and costs, have claimed damages under s82 and orders pursuant to s87 of the TPA to compensate for the loss and damage that have been allegedly suffered.
Section 82 of the TPA (which, with s87, is found in Part VI of that Act) provides that "a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V" (and s52 is found in Part V) may recover the amount of the loss or damage from that other person. Unconscionable conduct is contained in Part IVA of the TPA and is not therefore covered by s82. On the other hand, some of the provisions of s87 do refer to Part IVA as well as to Parts IV and V. For example, subs87(1A) empowers the court, where it finds that a person has suffered, or is likely to suffer, loss or damage by conduct of another person, to "make such order or orders as the Court thinks appropriate against the person who engaged in the conduct... if the Court considers that the order or orders concerned will compensate..." the person who has suffered the loss or damage.
Although it is not relevant for a determination of these proceedings, it should be mentioned for completeness that the respondents have denied all allegations of misleading or deceptive conduct and unconscionable conduct.
Before turning to a consideration of the various issues that have been the subject of argument at this preliminary stage of the litigation, it is desirable to refer to the particular statutory provisions that must be considered. The first of them is s5 of the MAC Act; that section appears in Part II of the Act entitled "Liability". The heading to the section is "Abolition of certain common law rights". Subsection(1) of the section provides as follows:-
"(1)No action for damages shall lie in the Territory -
(a)in respect of the death of or injury to a person who at the time of the accident was a resident of the Territory; or
(b)for non-economic loss in excess of the amount from time to time prescribed for the purposes of section 17, in respect of an injury to a person who, at the time of the accident, was not a resident of the Territory,
in or as the result of an accident that occurred in the Territory."
The word "accident" is defined in s4 of the MAC Act so as to limit its operation to variously described accidents caused by or arising out of the use of a motor vehicle.
As I have earlier said it is agreed that the deceased was a resident of the Territory and that the accident occurred in the Territory. The prescription that is contained in subs5(1) of the MAC Act is without limit; it means that no-one can bring any action for damages in respect of the death of or injury to a person in the circumstances covered by the subsection.
The next Statute of the Territory to which reference must be made is the CFI Act or Lord Campbell's Act. The primary provision is subs7(1); it establishes the existence of a cause of action for the benefit of third parties as a result of the death of another. It provides as follows:
"(1) Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such that it would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect of the injury, the person who would have been liable, if the death had not ensued, is liable to an action for damages notwithstanding the death of the person injured and irrespective of whether the death of that person was caused by circumstances that amount in law to a crime."
However, the ambit of subs7(1) is heavily qualified by subs5(2) which is intended to harmonise with the provisions of the MAC Act. That subsection states:
"(2) This Act does not apply to or in relation to a death occurring in or as a result of an accident within the meaning of the Motor Accidents (Compensation) Act, except in those circumstances in which an action in respect of that death is not precluded by that Act."
The combined thrust of the two pieces of legislation is such that, in appropriate circumstances, the occasion of injury or death as a result of a motor vehicle accident deprives the injured party and the estate of the injured party of traditional common law rights and any dependant spouse and children of the injured party of their rights under Lord Campbell's Act. In their place, the MAC Act offers a statutory scheme of relief and an award of damages. The third piece of relevant Northern Territory legislation is the Law Reform MP Act. Subsection 5(1) of that Act, the heading to which is "Effect of Death on Certain Causes of Action", provides as follows:
"(1) Subject to this Part, on the death of a person after the commencement of this Ordinance all causes of action subsisting against or vested in him survive against his estate or, as the case may be, for the benefit of his estate."
Subsequent provisions of the Act exclude or impose some constraints on certain causes of action and certain heads of damages but none of these are relevant for present purposes.
I now turn to a consideration of the various questions that are to be answered:
QUESTION 1
Are respectively the
(a)applicant
(b)children
(c)estate
precluded from recovering damages and other compensation pursuant to Part VI of the Trade Practices Act by reason of s5 of the MAC Act? That is, is the defence raised in paragraph (4)(a) of the defence of the first respondent and paragraph 1.5B of the defence of the second respondent a complete defence?
The Solicitor-General for the Northern Territory, Mr Pauling QC, submitted that the law in the Northern Territory in relation to the recovery of damages arising out of the death of or injury to a resident of the Territory as a result of a motor vehicle accident is that contained within the provisions of the MAC Act. He pointed out that, in common with similar schemes in other jurisdictions, it has created a no fault statutory scheme of compensation and has abolished common law claims for damages. Whilst he acknowledged that the statement of claim in this case purported, as a matter of form, to claim damages and other relief under ss82 and 87 of the TPA, the applicant's case was, so he submitted, as a matter of substance, the equivalent of a claim for damages arising out of the death of the deceased under the law as it existed before the introduction of the MAC Act. Expressed another way, his proposition can be put as a question: what caused the death of the deceased?
As I have already pointed out, it is not the applicant's case that death was caused by the negligent driving of the
competitor; rather she has pleaded that the cause was the conduct of one or other of the respondents. Causation is essentially a question of fact to be answered by reference to the common law practical or common-sense concept of causation: March v E & M H Stramare Pty Limited & Anor (1991) 171 CLR 506; Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 at 525. One needs to look for "the real, essential, substantial, direct, or effective cause of the loss of damage": Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No.2) (1987) 16 FCR 410 at 419 per Gummow J; one should take "a 'broad common-sense view' in deciding whether one of the causes (there may be two or twenty) is the 'real' cause": Stapley v Gypsum Mines Ltd [1953] AC 663 at 688.
"(T)he question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience."
(Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6 per Deane, Dawson, Toohey and Gaudron JJ).
There is no reason to limit the application of these principles to particular causes of action. Applying them to the facts as pleaded, I am of the opinion that the death of the deceased and any losses sustained by his widow and children as a consequence of his death were "caused" as a result of a motor vehicle accident involving a car that was driven by one of the competitors in the Rally. Whether or not the driver of the vehicle was negligent is not a matter to be
addressed at this stage of the litigation. It would be unrealistic, in my opinion, to refer to the challenged conduct of either respondent as "the cause" of the deceased's death. The respondents' conduct was at the most, "the cause" of Mr Pritchard's decision to become an Official and to participate in the Rally as an Official. It may be true, as was submitted on behalf of the applicant, that the conduct of the Rally [involving as it did, the special use of a public road] was the central and essential feature of the first respondent's trading activities. But that is not to the point because the thrust of the case for the applicant does not centre on those activities - it centres on what I chose to call the alleged negligent misstatements of both respondents. Those misstatements (assuming that they were made) were not the cause of the deceased's death; his death was caused by the motor car accident and, as a consequence, the provisions of the MAC Act came into operation. For the reasons that are set out hereunder, I am satisfied that the TPA was never intended to have general application to road traffic accidents or (again speaking generally) to personal claims arising out of such accidents.
There are several matters which, in my opinion, support the conclusion that I have reached. The title of the statute, Trade Practices Act and its provision in s2A that it binds the Crown in right of the Commonwealth in so far as the Crown "carries on a business" suggests immediately that the legislation is directed to activities of trade, commerce, business and economic issues, including issues of loss or damage that might flow from those activities. Next, there is the insertion of Part VA into the TPA, effective from 9 July 1992, containing a statutory code for dealing with defective goods. In it, s75AD makes specific reference to a corporation's liability to an individual and the estate of that individual for defective goods that cause injuries or death. Section 75AE extends that liability to enable persons, other than the individual, who suffer loss as a consequence of the injuries to or death of the individual, to receive compensation. The specific reference to death and personal injuries in this Part of the TPA highlight their exclusion in other Parts such as Parts IV, IVA, V and VI. Then in Elna v International Computers (supra) Gummow J talked of economic loss, saying at 419:
"Thus, in construing s82 it is appropriate to bear in mind such matters as the scope and purpose of Parts IV and V of the Trade Practices Act as directed significantly to issues of economic loss or damage..."
A case of significance to which the court was referred that dealt with but rejected an expanded operation of the TPA was Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594. In that case, a worker sued his employer for damages for personal injuries sustained during the course of his employment; he alleged a breach of s52 of the TPA. The worker had fallen to the bottom of an air-conditioning shaft while attempting to remove a grate positioned at the entry point of the shaft. The basis of the claim was that the
injuries were caused by the conduct of the employer's foreman who had wrongly informed the worker about the manner in which the grate was attached to the shaft. The worker alleged that these facts gave rise to a cause of action under s52 of the TPA in that the conduct of the employer's foreman was misleading or deceptive. The parties consented to an order being made that the question whether the facts pleaded in the statement of claim gave rise to a cause of action under the TPA be decided before trial. The Judge at first instance answered the question in the affirmative. The employer, by special leave, appealed to the High Court.
The High Court sat as a bench of seven and all agreed that the appeal should be allowed and that the answer should be in the negative. The minority (Brennan, McHugh and Toohey JJ), in the light of the "Consumer Protection" heading to Part V, were prepared to read s52 as prohibiting only conduct that was misleading or deceptive of persons "in their capacity as consumers". Since the foreman's instructions clearly did not fall into this category they decided that the worker's claim must fail. The majority (Mason CJ, Deane, Dawson and Gaudron JJ), in a joint judgment, rejected this reasoning, stating at pp601-602 that: "As a matter of language s52 prohibits a corporation from engaging in misleading or deceptive conduct 'in trade or commerce' regardless of whether the contract is misleading to or deceptive of, a person in the capacity of a consumer". The majority chose to base their finding on the requirement that the conduct must be in "trade or commerce", identifying that phrase as having a restrictive meaning.
Their honours first pointed out (pp602-603) that the prohibition against engaging in conduct "in trade or commerce" could have been construed as "encompassing conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business". But their Honours then went on to say that if the words "in trade or commerce" in s52 are construed in that sense, "the provisions of the section would extend, for example, to a case where the misleading or deceptive conduct was a failure by a driver to give the correct hand signal when driving a truck in the course of a corporation's haulage business". The majority thought that such an interpretation was too expansive; they favoured a more restrictive interpretation as referring only to "conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character". (p603) At a later stage in their judgment, the majority said at pp603-604:
"Indeed, in the context of Pt V of the Act with its heading 'Consumer Protection', it is plain that s.52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities."
In Concrete Construction v Nelson (supra) the alleged misleading or deceptive conduct of the employer's foreman consisted of "an internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building" (pp604-605). In the present case the misleading or deceptive conduct, if proved, would constitute a series of negligent misstatements made by the respective respondents preparatory to the holding of the Rally.
The term "side-wind" as used by the majority had earlier been used by Brennan J (as he then was) in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 224 when he said:
"It would be surprising if s.52 of the Trade Practices Act were to alter the 'careful balance' of the Patents Act 1952 and the Designs Act by a side-wind and, after four centuries, open the way to the creation of prescriptive monopolies for the manufacture of goods. In my view, it does not have that effect."
Mason CJ., Deane, Dawson and Toohey JJ also used the expression in Webb Distributors (Aust) Pty Ltd v The State of Victoria (1993) 179 CLR 15 at 37:
"The Trade Practices Act is unquestionably a piece of innovative legislation. But it is not to be seen as eliminating, 'by a side-wind' (See Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982), 149 CLR 191, at p224, per Brennan J), the detailed provisions established for more than a hundred years to govern the winding up of a company."
In that case the holders of certain shares in a failed Building Society had alleged misleading or deceptive conduct on the part of the Society claiming that it had induced them
to acquire the shares to their detriment. But even assuming that to be the case, the court held that they could not prove in the liquidation of the Society because they were precluded by the provisions of the Companies Code from rescinding the contracts under which they had acquired their shares and from maintaining an action for damages in respect of that acquisition.
Applied to the circumstances of this litigation, the question then is whether it was the presumed intention of the Commonwealth Parliament that s52 would have the "side-wind" effect of preventing the States and Territories from legislating to control and contain the causes of action and the quantum of damages flowing as a consequence of motor vehicle accidents. Notwithstanding the expanded meaning given to the words "loss or damage", I think that the answer to that question is: No.
The term "loss or damage" is not defined in the TPA nor is either word. However s4K, which was inserted into the Act by the Trade Practices (Amendment) Act No 81 of 1977 provides as follows:
"4K. In this Act:
(a)a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and
(b)a reference to the amount of any loss or damage includes a reference to damages in respect of an injury."
Counsel for the applicant, referring to various dictionary meanings of the word "injury" as connoting personal hurt, claimed that the introduction of s4K put beyond doubt that ss82 and 87 include loss sustained as a result of personal injury. In support of that general proposition, he relied on a passage in G Q Taperell, R B Vermeesh and D J Harland: Trade Practices and Consumer Protection 3Ed (Butterworth, Sydney, 1983) par 1642.
"The reference to 'loss or damage' includes a reference to 'injury' (s4K). One purpose at least of this provision, inserted by the Trade Practices Amendment Act 1977, is presumably to resolve any doubts that might otherwise have arisen as to whether damages can be recovered under s82 in respect of personal injuries. This will be important where it is alleged that a person suffered physical injury as a result of relying on a false representation as to the quality or performance characteristics of goods, or as a result of a corporation supplying goods in contravention of a prescribed safety standard."
The decision of Jenkinson J in Aristotite v Gladstone Park Shopping Centre Pty Ltd (1983) 5 ATPR 40-370 should also be mentioned. In that case the applicant commenced proceedings alleging a breach of s52 of the TPA. Neither in her particulars nor elsewhere in the statement of claim was it suggested that the applicant had suffered any physical or psychological harm by the conduct pleaded. Subsequently, the applicant sought leave to amend her statement of claim to include allegations of personal injury and particulars of the injuries that she had allegedly suffered. In allowing her application to amend, his Honour said:
"Personal injury by negligence raises a cause of action distinct from property damage by the same negligent act causing the same physical events: Brunsden v Humphrey (1884) 14 Q.B.D. 141. But in my
opinion every kind of 'loss or damage', including 'injury' which the law shall recognise as compensable in damages and which has been suffered by conduct of a description comprehended by sec.82(1) is within the single cause of action which, as I think, that subsection, read with sec. 4K, creates in relation to each of that description. It is not difficult to suppose that the draftsman of the Act expected that the words 'loss' and 'damage' in sec.82(1) and the word 'injury' in sec.4K would be interpreted as importing common law conceptions the expression of which involves the use of those words. But neither the use of those words nor anything else in the language of sec.82 suggests an intention to split the causes of action created by reference to analogous common law causes of action which are differentiated upon the nature of the damage suffered."
If, as I think, his Honour intended by that passage from his judgment to mean that first there must be a triable cause of action that is recognised by the TPA and that there can then be added to that, as part of it, an action for personal injuries, I respectfully agree; I do not believe that what his Honour said was intended to mean that the TPA gives to an injured applicant the right to sue only in respect of his or her personal injuries.
This view is, in my opinion, consistent with authorities such as Zoneff v Elcom Credit Union Ltd (1990) 12 ATPR 41-058 where the Full Court declined to interfere with an award of damages for distress in circumstances where the primary issue was economic loss arising out of the respondent's conduct in arranging inappropriate insurance for the applicant; see also Steiner v Magic Carpet Tours Pty Ltd (1984) 6 ATPR 40-490 where Wilcox J said that:
"s82 is sufficiently wide to include the loss of enjoyment of a holiday and the distress and inconvenience caused by the unavailability of proposed accommodation." (p45,642)
That passage was quoted with approval by Burchett J in Baxter v British Airways PLC (1988) 82 ALR 298 at 305 and referred to by Toohey J in Brabazon v Western Mail Ltd (1984-1985) 58 ALR 712 at 718. In Steiner's case the application was dismissed but having regard to the remarks of Wilcox J it is significant to note that there was an economic base in the application. The claim was in regard to an arranged tour of Bali and the applicants had claimed out-of-pocket expenses as well as compensation for distress and mental illness.
In my opinion, none of these cases support the applicant's broad proposition that ss52, 51AA, 82 and 87 individually or jointly in any permutation extend to a claim for damages consequential upon the death of a person in circumstances such as those in this case. I do not believe that it was ever intended that s52 or, indeed, any of those sections of the TPA, would be a "side-wind" effectively preventing the States and Territories from legislating to control and contain the causes of action and the quantum of damages flowing as a consequence of motor vehicle accidents. I do not consider that these provisions of the TPA were intended to extend, at large, to claims for personal injuries or to claims arising as a consequence of death where the injuries or death occurred as a result of a motor vehicle accident and where there are no other circumstances in the nature of "trade or commerce" that would attract the operation of the TPA. In my opinion the applicant, the estate and the children are not entitled to claim damages or other relief pursuant to the provisions of Part VI of the TPA. Paragraph 5(1)(a) of the MAC Act deprives the applicant and the children (as well as the estate, even though the estate is not referred to in par4(a) of the first respondent's defence) of all actions for damages other than that for which provision is made in the MAC Act. The answer to Question 1 is: Yes.
This conclusion renders it unnecessary to consider the further questions as it means, effectively, that the statement of claim, as pleaded, discloses no cause of action. But should my conclusion be wrong, and should the matter proceed further, I will go on to consider the further questions and give my answers to them.
I propose to deal with Questions 2, 4 and 5 together. To do this it is necessary to consider two rules of law. The first is that known as the rule in Baker v Bolton (supra); the second is the rule contained in the maxim - actio personalis moritur cum persona - a personal action dies with the person. The three questions are repeated hereunder:
QUESTION 2
Are respectively the
(a)applicant
(b)children
precluded from claiming any relief pursuant to the Trade Practices Act because of the rule in Baker v Bolton (1808) 1 Camp 493; 170 ER 1033? That is, is the defence raised in paragraph 4(b) of the first respondent's defence a complete defence?
QUESTION 4
(a)Did any action that the deceased may have had pursuant to the Trade Practices Act survive his death?
(b)If the answer to question 5(a) (sic: 4(a) obviously) was no, is the applicant precluded from claiming damages or any relief whatsoever on behalf of the estate pursuant to the Trade Practices Act?
That is, is the defence pleaded in paragraph 4(f) of the first respondent's defence a complete defence?
QUESTION 5
Assuming the death of the deceased was by conduct of the first respondent allegedly in breach of s51AA and s52 of the Trade Practices Act, is the deceased's estate or is the applicant on behalf of the estate able to recover damages arising from the death of the deceased pursuant to s82 of the Trade Practices Act? That is, is the defence pleaded in paragraph 4(g) of the first respondent's defence a complete defence?
Baker v Bolton (supra) established that, in an action for negligence in respect of the death of his wife, the plaintiff was not entitled to any damages for the loss of her society or for his mental sufferings on her account after the moment of her death. Lord Ellenborough directed the jury that in a civil court "the death of a human being could not be complained of as an injury"; and so, at common law, no action could be brought by a third party who suffered loss through the death of another. In 1846, legislation (Lord Campbell's Act - 9 & 10 Vict. c.93) was introduced in the United Kingdom to ameliorate the effect of the decision in Baker v Bolton (supra). Since then, the States and Territories of Australia have also introduced like legislation. New South Wales, for
example, passed the Compensation to Relatives Act 1897-1928 and that Act was the subject of the decision of the High Court in Woolworths Ltd v Crotty (1942) 66 CLR 603. The ratio of the case was that the legislation, that is, Lord Campbell's Act, applied equally to cases where death was caused by breach of contract as well as those case where death was the result of some tortious act. In that case Latham CJ referred to the rule in Baker v Bolton (supra) as "thoroughly established" (p615).
An action for damages under the TPA is a statutory cause of action - it is neither an action in contract nor an action in tort; s52 "does not adopt the language of any common law cause of action": Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348 per Fox J. However, in Gates v City Mutual Life Assurance Society Ltd (1985-1986) 160 CLR 1 the High Court held that the proper measure of damages for contraventions of the TPA was that which would be appropriate in tort in most, if not all, cases under Part V of the Act, especially those involving misleading or deceptive conduct. Woolworths v Crotty (supra) is authority for the proposition that, absent Lord Campbell's Act, the rule in Baker v Bolton would have applied in that case to prevent the prosecution of a cause of action in contract. It seems to me that it is no great extension to follow upon the decision in Woolworths v Crotty (supra) and to hold that the rule in Baker v Bolton (supra) would likewise apply to actions under the TPA unless there was, in that Act or elsewhere, legislative protection in the
terms of Lord Campbell's Act.
Section 75AE in Part VA of the TPA (Liability for Defective Goods) does contain that protection but only in respect of proceedings under that Part: it refers to the situation where a corporation, in trade or commerce, supplies defective goods manufactured by it and an individual dies of the injuries that were suffered because of that defect. If a person other than the individual suffers loss because of the individual's death the corporation may be liable to compensate that person for the amount of the loss. See also s75AH which applies State and Territory legislation about the survival of causes of action to actions under ss75AD, 75AE, 75AF and 75AG (all of which relate to the issue of defective goods).
In my opinion, the absence of any like provision in Parts IVA and V of the TPA is conclusive: in other words, legislative protection in the terms of Lord Campbell's Act does not exist in respect of actions to which those Parts of the TPA apply. If, contrary to the conclusion that I have reached in answering the first question, the facts as pleaded in the statement of claim reveal a cause of action in the circumstances as pleaded, the rule in Baker v Bolton, (supra) not having been nullified by Commonwealth remedial legislation, would operate to deprive the widow and the children of the deceased of any right to bring any action to compensate them for the damages and losses that they suffered because of his death. I therefore reject the applicant's submission that the language of the Territory's CFI Act "wrongful act, neglect or default" is, by virtue of its breadth, capable of including acts (and omissions) that are the subject of proceedings under Commonwealth legislation and, in particular, allegations of breaches of ss51AA and 52 of the TPA. This therefore means that the answer to Question 2 is: Yes.
I turn next to the rule - actio personalis moritur cum persona - a personal right of action dies with the person. Latham CJ, in Woolworths v Crotty (supra) summarised the effect of this rule and the rule in Bolton v Baker (supra) by quoting from the speech of Lord Atkin in Rose v Ford [1937] AC 826 at p833: "The law did not recognise the death of a person as giving a claim for damages". The Chief Justice then went on to say:
"As Lord Atkin pointed out, this rule '(that is, the rule in Baker v Bolton)' has no application to the death of a supposed plaintiff. In cases of tort the maxim actio personalis prevented his personal representatives from suing in such a case. The rule in Baker v Bolton applies to prevent an action by A against B for damages for the death of C, caused by the tortious act of B." (p615)
As the Chief Justice said in Woolworths v Crotty, (supra) however, there were numerous exceptions to the actio personalis rule: "(it) did not entirely exclude damages in tort, even where death had been caused by the wrongful act. It applied only to personal injuries (including death) of the deceased, even in tort" (p613). The Law Reform MR Act is the Territory legislation that abrogates, so far as the Territory
is concerned, the actio personalis rule; each Australia State and Territory has enacted like "survival" legislation. Unlike the CFI Act which creates a new cause of action, this act provides for the survival and continuation of an existing cause. Such legislation enables the estate of a deceased person to institute or to continue certain causes of action that would otherwise have ceased on his or her death; it also preserves all causes of actions subsisting against the deceased.
As with the rule in Baker v Bolton (supra), the actio personalis rule would apply to actions under the TPA unless there was, in that Act or elsewhere, legislative protection in the terms of the Law Reform MR Act. Section 75AD of the TPA does contain that protection but only in respect of proceedings under Part VA of the Act: it applies to the situation where a corporation, in trade or commerce, supplies defective goods manufactured by it and an individual dies of the injuries that were suffered because of that defect.
In the prosecution of her action under the TPA, the applicant seeks the benefit of some parts of the Territory legislation; to the extent to which it may be necessary, she would seek to invoke the provisions of the CFI Act and thereby avoid the rule in Baker v Bolton and to the extent to which it may be necessary she would also invoke the provisions of the Law Reform MP Act and so avoid the actio personalis rule. But the applicant maintains that her claims under the TPA are not affected by the MAC Act.
In my opinion, it would be an exercise in futility to consider, independently of the MAC Act, the adoption or application of the CFI Act and Law Reform MP Act to the alleged causes of action as pleaded in the statement of claim. There can be no mandate for such an exercise in selectivity. If, for the sake of argument, s80 of the Judiciary Act and its references to insufficiency and absence of adequate remedies could be utilised, it will be the common law in Australia as modified by the Territory's statute law (not selected pieces of that statute law) that govern the situation. In my opinion it is a case of "all or nothing". Shorn of its trappings, this action is a claim for damages arising out of the death of the deceased as a result of a motor vehicle accident; as such it sounds in tort. The applicant cannot argue for the application of the beneficial provisions of the CFI Act and the Law Reform MR Act without accepting the constraints of the MAC Act. It would be quite inappropriate for the applicant, having made her election to proceed under the TPA, to seek to incorporate in the prosecution of her Commonwealth claim, part only of the provisions of the applicable Territory Law.
In any event, I do not see this as a case for the application of s80 of the Judiciary Act. The actio personalis rule and the rule in Bolton v Baker (supra) are still good law unless, in respect of a jurisdiction or in respect of discrete subject matters in a jurisdiction, they have been abolished or
qualified. Neither of them have been either abolished or qualified with respect to claims arising out of misleading or deceptive conduct or unconscionable conduct under the TPA. Counsel for the applicant argued that it would be erroneous to apply archaic rules of the common law, long since abrogated by statute, to confine what would otherwise be the natural and ordinary meaning of the words "loss or damage". But, in my opinion that proposition does not truly state the effect of the two rules; they go further. They do not merely limit the meaning of words "loss or damage"; they lay down that third parties cannot sue in respect of the death of another and that a cause of action does not survive the death of the claimant. Those rules cannot be ignored.
During the course of submissions, counsel for the applicant sought leave to amend the statement of claim to include specific reference to and reliance upon the provisions of s80 of the Judiciary Act. In view of the decision I have reached that application is refused.
Consequently if, contrary to my findings, the deceased would have had a cause of action under the TPA had he lived that cause of action died with him because of the actio personalis rule. The answers to Question 4(a) and (b) are therefore:
Question 4(a): No
Question 4(b): Yes
It follows from my conclusion that there is no survival of a cause of action under Parts IVA and V of the TPA that neither the deceased's estate nor the applicant on behalf of the estate is able to recover damages arising from the death of the deceased. The answer to Question 5 is therefore: No.
QUESTION 3
Can respectively the
(a)applicant
(b)children
(c)estate
suffer 'loss' or 'damage' within the meaning of s82 or s87 of the Trade Practices Act? That is, is the defence raised in paragraph 1.5A of the second respondent's defence a complete defence? Similarly, is the defence raised by paragraphs 4(d) and 4(g) of the first respondent's defence a complete defence?
Sections 82 and 87 refer to a person who suffers (s82) or who has suffered, or is likely to suffer (s87) loss or damage. Both sections require an applicant to establish loss of damage "by conduct" (although s87 extends to the likelihood of such loss or damage). The initial observation that needs to be made is that my earlier conclusion, with respect to the actio personalis rule, means that the word "person" where used in ss82 and 87 does not extend to or include the estate of a deceased person or the representative of that estate. Parliament could have, but did not choose to insert in the TPA a provision for the survival of the appropriate cause of action.
Counsel for the first respondent submitted that the remedies afforded by ss82 and 87 are limited to loss or damage that is a "direct consequence" of the impugned conduct: Yorke v Ross Lucas Pty Ltd (1982) 69 FLR 116 at 138 per Fisher J; or to loss or damage that is "the immediate result of the offending conduct and also consequential losses if sufficiently direct": Frith v Gold Coast Mineral Springs Pty Ltd (1983) 65 FLR 213 at 232 per Fitzgerald J; Corbidge v Bakery Fun Factory Shop Pty Ltd (1984) 6 ATPR 40-493 at 45,688 per Woodward J. I respectfully agree. Counsel then referred to a passage from the judgment of Spender J in Shepherd v Noyes Bros Pty Ltd (1985) 7 ATPR 40-588 at 46,750 where his Honour said that the essential ingredient of the statutory cause of action is, having regard to the language of s82, the incurring of loss or damage - not the non-attainment of a benefit. Again, I respectfully agree.
However, the remarks of Spender J do not justify the proposition then advanced by counsel for the first respondent that a Lord Campbell's Act claim is for the non-attainment of a benefit and, being for such a non-attainment, it does not fall within s82 (or s87). Counsel relied for this proposition upon a passage from the judgment of Dixon J (as he then was) in Public Trustee v Zoanetti (1945) 70 CLR 266 at 276. In that case, his Honour, in discussing the nature of damages that were recoverable under legislation taken from Lord Campbell's Act, said that "what is recoverable for the benefit of the widow or other relative of the deceased is the pecuniary loss resulting from his death...". I do not find, in the use of the word "benefit" in that passage, anything
other than recompense for a loss because the claimant is, as a result of the death, "worse off", the expression used by Spender J in Shepherd v Noyes (supra) at 46, 750.
That however, is not the end of the matter; the applicant's loss or damage must be caused "by conduct". In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525, Mason CJ, Dawson, Gaudron and McHugh JJ said of the word "by" that it "... clearly expresses the notion of causation without defining or elucidating it". These words "by conduct" have been considered in numerous other cases, of which Elna Australia v International Computers (supra) is one. At p418 Gummow J said:
"Wrapped up within s82 are thus concepts the common law would describe by the terms 'causation' and 'remoteness' and 'measure of damages'.
It is to the first of these, 'causation', that s82(2) directs attention. It does so by fixing the limitation period by reference to the date on which the cause of action accrued and so to the suffering of the loss or damage 'by' conduct contravening the statute. The use of the preposition 'by' indicates the necessity for some sufficient cause or reason linking the conduct with the recoverable loss or damage: Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 at 350-351."
Later, in Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd (1988) 78 ALR 193 at 242, Gummow J, said with respect to the issue of reliance:
"It is for the applicant to show reliance upon the conduct complained of as supplying a sufficient causal connection between the conduct and the loss or damage for which recovery is sought..."
In Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) 12 ATPR 41-017 von Doussa J said:
"Loss or damage suffered by a person who does not rely on the conduct which contravenes s52 is not within s82 because the necessary causal link between the conduct and the loss or damage for which recovery is sought does not exist." (p51317)
The decision in Kaze's case was explained in Heydon's Trade Practices Law Vol 2 par18.1340, as Lockhart J pointed out in Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 109 ALR 638 at 647, in these terms:
"Where X contravenes s52, and A relies on X's conduct and suffers loss, A can recover damages under s82, but other persons who suffer loss because of A's loss cannot unless they too have relied on X's conduct."
Lockhart J agreed with that statement as do I. In the circumstances of this case, the applicant, as the widow of the deceased, and the children have suffered loss, not as a direct result of the conduct or either respondent, but as a direct result of the death of her husband and their father. Furthermore, it is not pleaded that they suffered those losses as a result of relying on the conduct of the respondents or one or other of them.
I have therefore come to the conclusion that, in the circumstances of this case, neither the applicant nor the children have suffered loss or damage within the meaning of ss82 or 87 of the TPA. The answer to Question 3 is therefore: No. In addition, the existence of the actio personalis rule operates to prevent the estate of the deceased from continuing such action (if any) as the deceased may have had if he had not died. This conclusion also means that I am of the opinion that the first respondent is entitled to a striking-out order on the ground that the statement of claim as pleaded has failed to disclose a cause of action on behalf of the applicant and the children in that it has not alleged that either the applicant or the children relied on the conduct of the first respondent which was alleged to be in breach of s52.
QUESTION 6
Does the Court have power to make orders against the respondents under s87 of the Trade Practices Act to compensate:
(a)the applicant for, or prevent or reduce, the loss or damage she has suffered or is likely to suffer;
(b)the deceased's estate for, or prevent or reduce, the loss or damage it has suffered or is likely to suffer, and further or alternatively
(c)the children for, or prevent or reduce, the loss or damage they have suffered or are likely to suffer
by reason of the death of the deceased? That is, is the defence raised by paragraph 4 of the first respondent's defence a complete defence to a claim made pursuant to s87 of the Trade Practices Act?
This question raises the operation of s51AA of the TPA and whether it can have any application in these proceedings; it also raises the second of the strike-out applications. Both respondents have argued that s51AA does not give the applicant, the estate or the children a cause of action. Subsection 51AA(1) which was introduced in 1992 provides:
"(1)A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories."
According to Miller's Annotated Trade Practices Act 16Ed (The Law Book Co, Sydney, 1995) at paragraph 755.10;
"Section 51AA has been inserted into the Trade Practices Act not to impose a new head of consumer protection law, but rather, to extend the remedies available under the Trade Practices Act to unconscionable conduct to the extent that this concept is presently part of the common law or equitable principles recognised by the courts.
The section gives effect to this intention by specifying merely that it is a breach of the Act to engage in unconscionable conduct as that term is understood in the 'unwritten law' of any State or Territory."
In the Second Reading Speech, The Hon. the Attorney-General said of the section:
"All transactions covered by the new provision are already covered by the equitable doctrine.
The advantages of prohibiting in the Act what is already addressed by equity lie in the availability of remedies under the Act, the potential involvement of the Commission, including the possibility of representative actions being brought by the Commission in cases where it seeks an injunction, and the educative and deterrent effect of a legislative provision." (Hansard: House of Representatives 3 November 1992. p2408)
The essential feature of the claim of unconscionable conduct against the first respondent is that the deceased "trusted and relied" on it to conduct the Rally so as to ensure "that the Officials were not exposed to an unreasonable risk of injury": (Subpar 23.3 of the statement of claim). It is then pleaded that "in the premises" the first respondent owed a duty to various parties "and the public" to act in their interests and that, in breach of that duty, the first respondent acted in its own interests and thereby acted unconscionably in breach of s51AA.
The allegation against the second respondent refers to "reliance" but not to "trust"; it merely says that various parties (one of whom would have been the deceased) "relied upon the permit" that was issued by the second respondent to conclude that the Rally would be conducted safely: par 26 of the statement of claim. That was said to give rise to a duty to various parties including the deceased; the second respondent allegedly breached the duty by acting in the interest of CAMS rather than in the interests of those of whom the deceased was one. In par 28 it is then pleaded that in so acting the second respondent acted unconscionably in breach of s51AA of the TPA.
Despite the lacuna the language of the statement of claim, I propose to assess the issues upon a broad premise that is most favourable to the applicant's case - that there is a claim that the deceased trusted and relied upon both the first respondent and the second respondents to ensure that the Rally was conducted safely.
Counsel for the applicant submitted that the respondents owed fiduciary duties to the government of the Northern Territory, its police officers, the Officials and the members of the public; he submitted that the circumstances out of which those duties arose were as follows:
.In order to induce the government and the police to suspend the normal standards of enforcement of road safety laws, the first respondent, to the knowledge of the second respondent, represented that it could be trusted to implement and enforce a set of race regulations and put in place other arrangements which would ensure the safety of the Officials and members of the public.
.Knowing that the government, the police, competitors, Officials and the public would rely upon them, the second respondents represented, first, that they could be trusted to review and approve the manner in which the rally was proposed to be conducted by the first respondent to ensure that it would be conducted safely and, secondly, to supervise the actual conduct of the rally to ensure that it complied with the terms of its approval.
.The second respondents issued a permit signifying that they had reviewed and approved the manner in which the rally was proposed to be conducted and that they would provide competent supervision of the event by skilled Officials to ensure that the rally was conducted safely.
.The respondents represented to the government and the police that they were experts in the preparation and enforcement of regulations and other arrangements suitable for the safe conduct of rallies of the kind proposed.
.Neither the government nor the police had the expertise or resources to prepare and enforce such regulations nor to make the arrangements necessary to ensure the rally was safely conducted.
.In reliance upon the representations mentioned above, the government and the police agreed to allow the respondents to regulate and conduct the rally using public roads and to do so whilst they were open to and being used by other members of the public.
.The rights and powers granted by the government and the police to the respondents were not the subject of any formal or contractual arrangements: they were a matter of trust and confidence.
.The staging of the rally involved monetary gain for the respondents, thereby placing their interests in a position of potential conflict with those of Officials and the public.
Counsel for the first respondent referred to the various categories within which the principle of unconscionability may be raised. In my opinion, unconscionable dealing is the only one that can be relevant to these proceedings. As to this, it is clear that the applicant, in order to succeed, must establish some "special disability". For example, the plaintiffs in Commercial Bank of Australia Ltd v Amadio (1982-1983) 151 CLR 447 were the elderly migrant parents of the defendant's customer. Their son induced them to execute a mortgage in favour of the bank to secure the overdraft of the son's company. The parents were misinformed by the son about the effect of the mortgage and the bank was aware that they had been misinformed. The parents were successful in having the mortgage set aside unconditionally. In that case, Mason J (as he then was) adopted the term "special disadvantage" rather than "special disability". His Honour explained the "special disadvantage" of the Amadio's in relation to the bank in these terms:
"I qualify the word 'disadvantage' by the adjective 'special' in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasize that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party." (p462)
Deane J, with whom Wilson J agreed, discussed "special disability". He said:
"The jurisdiction is long established as extending generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or 'unconscientious' that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it." (p474)
His Honour repeated those observations in Louth v Diprose (1992) 175 CLR 621 at 637.
As a matter of fact, the pleadings, in this case, fall far short of encompassing such allegations and that alone would be grounds for striking out those sections of the statement of claim that allege unconscionable dealing.
However, I believe that I should go a stage further and consider whether there might be, in law, on the facts most favourable to the applicant, a cause of action based on unconscionable conduct. Assume for example that the statement of claim contained the appropriate allegations; assume that pleas of special disability and inequality were raised and particularised together with a plea that the respondents were aware of that disability and inequality. Could the widow, the estate or the children, sustain an action based on s51AA on such facts? I think not.
The ability of a court to interfere under s87 of the TPA as a consequence of proven breach of s51AA is because the court is satisfied that a party has suffered or is likely to suffer loss or damage "by conduct" of another person. The words "by conduct" are the same as those contained in s82 and I regard myself as bound to construe them in the same way when considering their presence in s87. I am unable to see how the widow or the children could, as a matter of law, allege that they suffered or were likely to suffer loss or damage by the conduct of either respondent as identified in the submissions of counsel for the applicant to which reference has earlier been made. I am forced back to my earlier conclusion that any loss or damage that they sustained was caused by the motor vehicle accident - not by the alleged negligent misstatements of either respondent. I do not think that the deceased, in his lifetime, could have raised such a plea, but if he could, the cause died with him.
There is a further reason why I do not think that s51AA has a part to play in these proceedings. In Commercial Bank v Amadio (supra) and Louth v Diprose (supra) there was a transaction giving rise to the litigation. The plaintiff in each case was seeking relief from the consequences of being a party to that transaction. The version of facts most favourable for the applicant in this case could not identify any such transaction from which she, the estate or her children might be likely to seek relief: nor do any of them seek relief from an unconscionable dealing. In Stern v McArthur (1988) 165 CLR 489 this point was emphasised by Deane and Dawson JJ when they said:
"The general underlying notion is that which has long been identified as underlying much of equity's traditional jurisdiction to grant relief against unconscientious conduct, namely, that a person should not be permitted to use or insist upon his legal rights to take advantage of another's special vulnerability or misadventure for the unjust enrichment of himself." (pp526-527)
In my opinion the answer to Question 6 is: No.
Mr Gee QC, counsel for the second respondent, adopted the submission of the Attorney-General for the Northern Territory and the additional submissions of the first respondent. However, Mr Gee presented a further argument based upon the premise that it might be said that the TPA permitted the causes of action as pleaded in the statement of claim. According to Mr Gee, even if the TPA applied to claims such as the applicant's, the MAC Act remained a valid law of the Territory effectively barring the applicant's action under the TPA.
In view of the conclusions that I have reached, it is not necessary to embark upon a consideration of the detailed submissions that were made by counsel in respect of this issue. But as I find myself unable to agree with Mr Gee's arguments I will shortly state my reasons for the view that I hold so as to preserve his clients' rights if this matter should proceed further. In my opinion the MAC Act would be invalid if its provisions were in conflict with a law of the Commonwealth Parliament.
The Northern Territory (Self-Government) Act 1978 (Cth) (the "NT Self-Government Act"), an act of the Commonwealth Parliament, conferred self-government of the Northern Territory. Its preamble includes the following passage:
"AND WHEREAS the Parliament considers it desirable, by reason of the political and economic development of the Northern Territory, to confer self-government on the Territory, and for that purpose to provide among other things, for the establishment of separate political, representative and administrative institutions in the Territory and to give the Territory control over its own Treasury..."
That legislative objective was more extensive than that found in the preamble to the Seat of Government (Administration) Act 1910 (Cth) (the "Seat of Government Act") which merely described it as an Act "to provide for the Provisional Government of the Territory for the seat of Government of the Commonwealth". The NT Self Government Act, by s5, establishes the Northern Territory as a body politic under the Crown. In contrast, the legislative description adopted by the Commonwealth Parliament in the Northern Territory Acceptance Act 1910 (Cth) was as follows:-
"The Northern Territory is by this Act declared to be accepted by the Commonwealth as a Territory under the authority of the Commonwealth, by the name of the Northern Territory of Australia". (s6(1))
Undoubtedly the NT Self-Government Act was a distinct and determined move by Commonwealth Parliament towards the autonomy of the Northern Territory. It does not contain a provision such as appears in s28 of the ACT Seat of Government Act denying effect to a Territory enactment that is inconsistent with a Commonwealth Law that is in force in the Territory. However, I cannot agree with the submission of counsel that it thereby manifests an intention of the Commonwealth Parliament to cease to treat the Northern Territory as a "territory" with the attendant connotations of subordination to the parent legislature. There still remains a provision for disallowance by the Governor-General of a law of the Northern Territory notwithstanding its passage through the Legislative Assembly of the Territory. I find that incompatible with the proposal that the Commonwealth Parliament is intending no longer to treat the Territory as a "territory". Perhaps it might be accurate to say that the terms of the NT Self-Government Act will, one day in the future, be seen historically as a first and paramount step towards statehood; but that is not the same thing.
Other limitations are set out in Part VI of the NT Self-Government Act. For example, the Assembly may not make a law with respect to acquisition of property otherwise than on just terms; the Assembly may not pass a law which imposes any fetter on the absolute freedom of trade, commerce and intercourse between the Territory and the States (ss49-50 NT Self-Government Act); and an Act of the Commonwealth which binds a State binds the Territory (s51 NT Self-Government Act).
Nevertheless Mr Gee's proposition was that if there is a true inconsistency between a law of the Commonwealth and a law of the Territory, it is no longer true (if it ever was) to say that an inconsistency of this nature is automatically to be resolved in favour of the Commonwealth, or parent legislation. He said that when the Northern Territory Government in its old form legislated, it did so as a delegate of the Commonwealth; and it would thus have been an affront to concepts of delegated power to countenance subordinate legislation that ran directly counter to that of the delegating parent. Now, he submitted, the legislative regime could not be more different. The Commonwealth Parliament has expressly spoken, through the NT Self-Government Act, of its determination that the Northern Territory should be self governing.
Mr Gee submitted that support for the constitutional validity of the MAC Act may be gained from s75 (which is within Part V of the TPA). Subject to certain qualifications, it lays down that Part V is not intended to exclude or limit the concurrent operation of any law of a State or Territory; it then goes on to provide that nothing in Part V "shall be taken to limit, restrict or otherwise affect any right or
remedy a person would have had if this Part had not been enacted". But he also acknowledged that there have been decisions in the High Court about the resolution of inconsistency or repugnancy between competing legislation in terms that do not readily accord with his submission; he sought to explain them away but I am convinced that at the single Judge level they must be acknowledged and followed. The first of them is Reg. v Kearney: Ex parte Japanangka (1983-1984) 158 CLR 395 and the second is University of Wollongong v Metwally (1984) 158 CLR 447 where Mason J (as he then was) in a dissenting judgment said:
"It is significant that a conflict between a Commonwealth law and a Territory law, which is unaffected by the provisions of s.109, is resolved in favour of the primacy of the Commonwealth law by reference to the same doctrine of inconsistency: Federal Capital Commission v Laristan Building and Investment Co. Pty Ltd; Webster v McIntosh; Reg v Kearney: Ex parte Japanangka. The comment made by Brennan J in the last mentioned case that 'It is beyond the capacity of a law of the Northern Territory... to affect the operation of a law of the Commonwealth or to destroy or to detract from a right thereby conferred' echoes the observations of Dixon J in Stock Motor Ploughs Ltd v Forsyth, when, speaking of s.109, he said that inconsistency will result if a State law varies, impairs or detracts from the operation of a law of the Commonwealth." (p464)
The question of repugnancy between a Territory and a Commonwealth law was considered in Webster v MacIntosh (1980) 49 FLR 317, a decision of a Full Court of the Federal Court. The issue was inconsistency between an ACT Ordinance apparently justifying an arrest, and a provision of the Commonwealth Crimes Act which permitted arrest only under certain circumstances which were held in that case not to have
existed. Brennan J (as he then was) said:-
"Where one of the laws is in an Act of the Parliament and the other is an Ordinance of the Australian Capital Territory made under s.12 of the Seat of Government (Administration) Act 1910 (Cth), the relevant question is not whether the Act can be so construed as to leave room for the operation of the Ordinance, but whether the Ordinance is repugnant to the Act. The power to make Ordinances conferred by s.12 does not authorise the making of an Ordinance which is repugnant to an Act of the Parliament (Federal Capital Commission v Laristan Building & Investment Co Pty Ltd), and s.12 does not sustain an Ordinance if it becomes repugnant to a later Act of the Parliament. To the extent to which an Ordinance is repugnant to an Act, the Ordinance has no operation. It is not now material to discuss whether repugnancy works this result by denying power to make or sustain the Ordinance or by attributing an overriding effect to the Act. In the presence case, all that needs to be ascertained is whether the Ordinance is inconsistent with and thus repugnant to the Act in the material respect." (p320-321)
In my opinion, the dicta in these cases are sufficient to prevent acceptance of Mr Gee's argument.
The answers that I have given to the six preliminary questions are all adverse to the applicant; I also am of the opinion that the two strike-out applications must succeed. That latter conclusion means that some detailed attention must be given to the contents of the statement of claim so as to ensure that the orders of the court correctly identify the passages that are to be excised. Counsel should also have the opportunity to address the court on consequential issues including costs. I therefore order that the first respondent file and serve within five days of this date minutes of order encompassing orders and directions that are consistent with the contents of these written reasons. Within the same time the first respondent shall file and serve such written submissions (if any) as it may be advised touching upon or concerning consequential orders, directions and other matters, including but not limited to any question of costs. I further direct that the remaining parties shall have liberty to speak to the minutes; any party wishing to make any submissions in respect of consequential orders, directions and other matters, including, but not limited to any question of costs, shall file and serve their respective submissions within ten days of this date.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice O'Loughlin.
Associate
Dated:
Counsel for the Applicant : Mr M Maurice QC and
Mr A Wyvill
Solicitors for the Applicant : Mildrens
Counsel for the First Respondent : Mr G Hiley QC and
Mr S R Southwood
Solicitors for the First Respondent: Philip & Mitaros
Counsel for the Second Respondent : Mr C Gee QC and
Mr P M Batt
Solicitors for the Second
Respondent: Ward Keller
Counsel for the Attorney-General : Mr T I Pauling QC
of the Northern Territory of and Ms K F Gillman
Australia
Solicitor for the Attorney-General : Solicitor for the
of the Northern Territory of Northern Territory
Australia
Hearing Dates : 26 and 27 September 1995
Key Legal Topics
Areas of Law
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Trade Practices Law
Legal Concepts
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Misleading or Deceptive Conduct
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Unconscionable Conduct
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Jurisdiction
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