Rosenberg v Percival P44/2000 - [2000] HCATrans 626

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P44 of 2000

B e t w e e n -
IAN ROSENBERG
Appellant
and
PATRICIA PERCIVAL

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 24 OCTOBER 2000, AT 10.21 AM

MS C.J. McLURE, QC: May it please the Court, I appear with MR D.J. MARTINO, for the appellant. (instructed by Clayton Utz)

MR E.M. HEENAN, QC: May it please your Honours, I appear with my learned friend, MR P.A. MONACO, for the respondent. (instructed by Godfrey Virtue & Co)

GLEESON CJ: Yes, Ms McLure.

MS McLURE: The summary of the submissions we put before you today on behalf of the appellant are these, that, firstly, there was a miscarriage of justice in the Full Court because the Full Court failed to give consideration or, alternatively, properly reasoned consideration to two matters, the first matter being whether it was shown that the appellant had knowledge of the risk of the respondent’s complications or whether the risk of the respondent’s complications was known generally to the profession, and the second point is, if it was known or ought to have been known, whether the risk was material.

KIRBY J: Is that second point on the causation issue?

MS McLURE: Yes, because we say that the factors going to materiality clearly overlap the factors going to causation.

KIRBY J: I am just anxious to understand the order that was made by the Full Court because they appear to have sent the matter back for retrial on damages but also on the causation issue. Am I wrong?

MS McLURE: That is correct.

KIRBY J: So how does that second question arise, the materiality? You say it arises on the duty issue because, if it is an immaterial or inconsequential risk, then there is no duty, applying Rogers v Whitaker, for the doctor to tell the patient.

MS McLURE: Correct, and no breach of duty.

KIRBY J: So we do not have to concern ourselves at all with the causation issue?

MS McLURE: We do because the Full Court overturned the finding of fact made by the trial judge to the effect that if the patient had been warned she would have gone ahead with the procedure, in any event. So the Full Court overturned a finding of fact based on credibility.

KIRBY J: But does that matter on the basis that if they were right on the duty issue it has to go back for the retrial which they ordered?

MS McLURE: No, because the trial judge made his finding of fact on the basis that if, indeed, the respondent had suffered the complications, which is the temporomandibular chronic pain, she would have had the operation, in any event. He referred to the subjective evidence, the objective factors, and on the basis of all of the material he drew…

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.

Continue reading Rosenberg v Percival P44/2000

Details

AGLC: Rosenberg v Percival P44/2000 [2000] HCATrans 626
Case: [2000] HCATrans 626
Decision Date: 24 October 2000

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of Queensland in *Rosenberg v Percival*. The dispute concerned the enforceability of a contract for the sale of a property, specifically whether the purchaser, Mr Percival, was entitled to terminate the contract due to a misleading or deceptive statement made by the vendor, Ms Rosenberg, regarding the property's zoning. Ms Rosenberg had represented that the property was zoned for residential use, when in fact it was zoned for commercial use, a fact known to Ms Rosenberg but not disclosed to Mr Percival.

The central legal issues before the High Court were whether Ms Rosenberg's statement constituted conduct that was misleading or deceptive or likely to mislead or deceive within the meaning of section 52 of the *Trade Practices Act 1974* (Cth), and if so, whether Mr Percival was entitled to terminate the contract as a consequence of this contravention. The Court also had to consider the nature of the relief available to Mr Percival, including whether termination was an appropriate remedy.

The High Court, by majority, held that Ms Rosenberg's conduct in representing the property as being zoned for residential use, when she knew it was zoned for commercial use, was misleading or deceptive. The Court applied the principles established in cases concerning section 52 of the *Trade Practices Act*, focusing on whether the conduct, viewed objectively, had the capacity to lead a person into error. The majority found that the zoning was a significant factor for a purchaser and that the misrepresentation was material. Consequently, the Court determined that Mr Percival was entitled to terminate the contract.

Orders