Richard v Gendore Enterprises Pty Limited

[2005] HCATrans 299

[2005] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S177 of 2004

B e t w e e n -

JOHN RICHARD

Applicant

and

GENDORE ENTERPRISES PTY LIMITED

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 APRIL 2005, AT 10.59 AM

Copyright in the High Court of Australia

MR M.J. JOSEPH, SC:   If the Court please, I appear with MR F.L. AUSTIN for the applicant.  (instructed by Lyons & Lyons)

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR M.F. GALVIN, for the respondent.  (instructed by Curwood & Partners)

GLEESON CJ:   Yes, Mr Joseph.

MR JOSEPH:   If the Court pleases, the ground of special leave is sought on the failure of both, in particular, the Court of Appeal but also the trial judge, to undertake what is required to establish whether or not conduct was misleading or deceptive for the purposes of section 52.  The manner by which both the trial judge and the Court of Appeal approached this issue were to some extent different.  The Court of Appeal, in summary, at page ‑ ‑ ‑

GLEESON CJ:   Mr Joseph, just let me understand one aspect of the facts to be sure I am – the machinery was second hand when it was bought by your client?

MR JOSEPH:   Yes, from the second respondent.

GLEESON CJ:   And the second respondent is out of the case now, in fact.  I think I should have mentioned that.  The second respondent is not taking any part in this application.  The first respondent was the importer.  Did it sell the machinery to the second respondent?

MR JOSEPH:   No, it does not appear to be directly ‑ ‑ ‑

GLEESON CJ:   There seems to be a chain of title.

MR JOSEPH:   Indeed, the same chain of title in respect of the manual, and that is obviously the critical issue.  The manual, so the trial judge found, came from the manufacturer and came in the crate ‑ ‑ ‑

GLEESON CJ:   Well, the manual, no doubt, is like one of those books that you find in the glove box of a car when you buy it.

MR JOSEPH:   Yes.

GLEESON CJ:   And the finding in paragraph 26 on page 34 was the key to the reasoning against you, was it not?  It represents concurrent findings of fact.

MR JOSEPH:   That is correct, and the question is whether the manual was adopted.  Is that in fact the fair test in terms of section 52, because the fact seems to have been that, on one view, the first respondent did not read it.  It was not their document.  It came into the country with their harvester and it seemed to have circulated from there with the harvester as it went down the chain and ultimately sold to my client.  There does not seem to be any dispute that it was an ambiguous document, in that it referred to tyre sizes without reference to whether it was metric or whether it was imperial.  The fact is, we say, that both the trial judge and the Court of Appeal seem to have been locked into the view that the failure to prove that the respondent either knew of the contents of the document or partook in the establishment of the contents of the document or knew it was false excused them from liability under section 52. 

It is our submission that what they failed to do was to assess those facts against other facts, namely, the position of the applicant himself as a purchaser of this vehicle, that he would wish to have a manual so he could operate it and repair it as necessary as a farmer, and failure to assess the fact that the respondent allowed this document to circulate in circumstances where it was, on its face, ambiguous.

GLEESON CJ:   This would apply to any Australian importer of goods, perhaps including highly sophisticated technology, who imports them with one of these manuals and then sells them.

MR JOSEPH:   Yes, it would, but except for this.  This was not a sophisticated fact.  Whilst one could concede – that is why the contents of the manual itself is relevant in the characterisation of the relationship – one could concede that there would be some technical detail that you could not expect every importer to be on top of simply by importing, on the other hand, this related to a tyre size that was clearly ambiguous on its face.  It was not a matter of technicality, namely, whether it should be 16 or 16.3; it was a matter of whether it should be in inches or whether it should be metric, knowing that we are putting this into a community of persons who operate under both schemes.

GLEESON CJ:   Am I right in thinking that the critical question in a case like this, in considering the application of the statute, is always to identify the conduct in which the respondent engaged and to ask whether that was misleading or deceptive?

MR JOSEPH:   Yes, it is, but having regard to the nature – as it says in Butcher – the nature of the parties, the characterisation of the transaction and the contents of the document in question.  So it is a judgment that can only ultimately be made – that is, liability – by weighing up all of those factors, and that is what did not take place, in our submission, in the Court of Appeal or at first instance.  They found certain facts, but never weighed up, in a normative way, the various factors as to whether it amounts to conduct which ‑ ‑ ‑

GUMMOW J:   You could hardly blame the trial judge for not dealing with this more fully when you look at paragraph 9 on page 25.  The trial judge went out of his way to deal with it, but he did not have much material to make bricks that had been given him:

the plaintiff did not articulate in his submissions a claim against the first defendant, and relied on the particulars in the pleadings ‑ ‑ ‑

MR JOSEPH:   That certainly was amiss, but ultimately ‑ ‑ ‑

GUMMOW J:   Well, we would be drawn into all of that, those inadequacies.

MR JOSEPH:   No, your Honour, the trial judge does deal with it in a factual way at page 10 of the application book:

If follows from the evidence, that there was no statement or representation made by either defendant to the plaintiff.  So far as the first defendant (the importer) was concerned, it was not the author of the operator’s manual, it did not supply the manual to the plaintiff, it never adopted or warranted the accuracy of the manual, and the plaintiff neither sought the advice of the first defendant nor relied on anything said or done by it.  The first defendant was in no manner involved in the plaintiff’s acquisition of the harvester.  Therefore, even if the manual were inaccurate, the first defendant made no representation and there was no reliance by the plaintiff on anything said or done by the first defendant.

Now, we simply say, even accepting each of those findings on their face, his Honour failed to make findings, in our submission, that could, given the manner by which this Court has said one has to go about identifying the relevant conduct, be said to really address liability under section 52.  All he has said is what was not the fact as opposed to what were the facts, and the facts were that this ‑ ‑ ‑

GUMMOW J:   Well, you want a further hearing, do you not?  You want this to go back to the District Court to have another go, when you did not use the first go.

MR JOSEPH:   We did use the first go, your Honour, the Court of Appeal accepted that section 52 was alive.  Ultimately they accepted it barely, admittedly, but they said it was alive.

GUMMOW J:   Well, it just does not make it a very attractive special leave case.  That is what I am putting to you.

MR JOSEPH:   Your Honour, only that it is clear even given that it was alive and given the manner by which the Court of Appeal simply adopted ‑ ‑ ‑

GUMMOW J:   Why should we give it a transfusion?

MR JOSEPH:   I guess, your Honour, in the interests of justice because the facts ‑ ‑ ‑

GUMMOW J:   The interests of justice are linked with the way you or your predecessors chose to run the case at trial.

MR JOSEPH:   It was run as a section 52 case.  The Court of Appeal said it was a section 52 case.  The Court of Appeal did not deal with that matter on its merits, in our submission.  It simply fell upon the findings of the trial judge, which themselves were inadequate in dealing with this issue, in our submission, and that is our application.

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Campbell.

Having regard to the way in which the proceedings were conducted at first instance and to the concurrent findings of fact made by the primary judge and the Court of Appeal we do not consider this is a suitable vehicle for the agitation of any question of principle appropriate for a grant of special leave and the application is dismissed with costs.

MR JOSEPH:   May it please the Court.

AT 11.10 AM THE MATTER WAS CONCLUDED