Rothschild Australia Limited v State Bank of South Australia

Rothschild Australia Limited sought special leave to appeal from a decision of the Full Court of the Supreme Court of Victoria concerning allegations of misleading and deceptive conduct. The dispute involved Rothschild Australia Limited as the applicant, and the State Bank of South Australia and the National Safety Council of Australia – Victorian Division (in liquidation) as respondents. The core of the matter revolved around representations made in a letter, and their effect on the representee.

The High Court was asked to consider two main issues of general importance. Firstly, the applicant argued that the trial judge's firm factual conclusions regarding inducement, based on hearing the witnesses, should be given significant weight. Secondly, the applicant contended that there was a developing tendency in inferior courts to misapply principles from *Gould v Vaggelas* regarding the "inducing tendency" of misrepresentations, particularly in cases of misleading or deceptive conduct under section 52 of the *Trade Practices Act 1974* (Cth). This tendency, it was submitted, could improperly reverse the onus of proof.

The applicant's argument focused on the potential for a misrepresentation to be true, while other potentially false representations had no impact. The applicant sought to demonstrate how the reliance on the "inducing tendency" of misrepresentations in lower courts could lead to an incorrect reversal of the onus of proof, even if not explicitly stated. The applicant intended to refer the Court to specific passages in the application book and other case examples to support these submissions.