Proudlove v Burridge & Ors - [2017] HCATrans 128

[2017] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P7 of 2017

B e t w e e n -
WARRICK TYLER PROUDLOVE BY HIS NEXT FRIENDS KEVIN LESLIE PROUDLOVE AND PATRICIA PROUDLOVE
Applicant
and
HARLEY MICHAEL BURRIDGE
First Respondent
PETER GAVIN O’NEILL
Second Respondent
NATALIE PATRICIA O’NEILL
Third Respondent
Application for special leave to appeal

KIEFEL CJ
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO PERTH

ON FRIDAY, 16 JUNE 2017, AT 11.48 AM

____________________

MS P.E. CAHILL, SC: May it please the Court, I appear with MS F. VERNON for the applicant. (instructed by Bradley Bayly Legal)

MR S. VANDONGEN, SC: May it please the Court, I appear with MR A.K. SHARPE for the first respondent. (instructed by Tottle Partners)

KIEFEL CJ: Yes, Ms Cahill.

MS CAHILL: May it please the Court. The special leave question is directed to clarifying or establishing the correct approach at the appellate court to reviewing factual error of a particular kind, that is, the kind that is an error or omission where the trial judge has failed to make any finding at all about a relevant fact or inference.

Most relevantly for the purposes of this application we say that the trial judge erred in failing to make a finding about the distance between Ms Tremayne standing on the road waving to oncoming drivers to warn them of horses on the road ahead and the point of collision between the first respondent’s vehicle and the horse that was on the road. That was very relevant to the issue of causation and whether, had the first respondent kept a proper lookout, which the trial judge found he did not, he would have seen Ms Tremayne in sufficient time to brake so as to stop or to avoid the collision.

Because the majority considered itself to be subject to the Fox v Percy style limitations which are applicable when a trial judge makes positive findings of fact, the majority did not themselves properly assess the relevant primary facts as to what those facts revealed in terms of probable inferences on this topic. So we say that the net effect is that the applicant has to this point been denied a proper consideration of the evidence and the probabilities of the first respondent’s found negligence having caused the applicant’s injuries.

This is no small thing, your Honours. The applicant was an able‑bodied young man at the time of the accident, only 19 years old, and the resulting injuries he suffered from the collision were catastrophic. Against that background, we say that special leave should be granted primarily because it is in the interests of justice to do so, to enable that factual question of causation to be given proper consideration and evaluation. We also say ‑ ‑

KIEFEL CJ: You are not relying upon there being a question of general principle arising?

MS CAHILL: 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: [2017] HCATrans 128
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Proudlove and Burridge & Ors concerning the interpretation and application of certain provisions within the *Corporations Act 2001* (Cth). The case involved allegations of misleading or deceptive conduct in contravention of the Act.

The central legal issues before the High Court were whether the respondents had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of section 1041H of the *Corporations Act*, and whether the appellant had suffered loss or damage as a result of such conduct, entitling them to relief under section 1041I of the Act. The Court also had to consider the scope and application of the statutory defences available under the *Corporations Act*.

The High Court's reasoning focused on the objective test for misleading or deceptive conduct, which requires considering whether the conduct, viewed as a whole, has the capacity to lead a person, acting reasonably in the circumstances, into error. The Court examined the specific representations made by the respondents and the context in which they were communicated to the appellant. It applied established principles regarding causation and the assessment of damages in cases of statutory contravention, considering whether the appellant's loss was a direct consequence of the misleading conduct. The Court also analysed the requirements for establishing a defence under the *Corporations Act*, particularly concerning reasonable precautions and due diligence.

The High Court allowed the appeal in part, finding that certain conduct of the respondents did contravene section 1041H of the *Corporations Act*. Consequently, the matter was remitted to the Federal Court of Australia for further determination of the relief to be granted to the appellant under section 1041I.

Orders