Saltmarsh v Westpac Banking Corporation - [2022] TASFC 8

[2022] TASFC 8

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Saltmarsh v Westpac Banking Corporation[2022] TASFC 8
PARTIES:	SALTMARSH, Michael Richard
SALTMARSH, Jillian Anne
v
WESTPAC BANKING CORPORATION
FILE NO/S:	2111/2021
2294/2020
DELIVERED ON:	16 September 2022
DELIVERED AT:	Hobart
HEARING DATE/S:	7 March 2022
JUDGMENT OF:	Brett J, Jago J and Martin AJ
CATCHWORDS:

Procedure – Civil proceedings in State and Territory Courts – Pleadings – Particulars – Other cases and

matters – Failure to provide adequate particulars of facts necessary to establish a causal link between
defendant’s conduct and the alleged loss.

Supreme Court Rules 2000 rule 374.
Bond Corporation Pty Limited v Thiess Contractors Pty Ltd (1987) 14 FCR 215, Pumptech Tasmania Pty Ltd
v CB & M Design Solutions Pty Ltd [2009] TASSC 78 – applied.
Salvatore Coco v Westpac Banking Corporation [2012] NSWSC 565 – not followed.

Aust Dig Procedure [1190].

Procedure – Civil proceedings in State and Territory Courts – Motions, interlocutory applications and other

pre-trial matters – Self-executing orders – Order made by consent that judgment be entered against
plaintiff if particulars not provided within a fixed period – Judgment entered by registrar on basis of self-
executing order – Consent by legally represented parties sufficient for valid order – Not necessary or
appropriate to go behind consent - Appeal dismissed.

REPRESENTATION:

Counsel:

Appellant: P King
Respondent: L Sealy SC and R Hudson

Solicitors:

Appellant: Bramham Lawyers
Respondent: Butler McIntyre & Butler

Judgment Number:	[2022] TASFC 8
Number of paragraphs:	128

Serial No 8/2022

File No 2111/2021

2294/2020

MICHAEL RICHARD SALTMARSH and JILLIAN ANNE SALTMARSH

v WESTPAC BANKING CORPORATION

REASONS FOR JUDGMENT	FULL COURT BRETT J JAGO J MARTIN AJ September 2022
Orders of the Court:

1 Appeals dismissed.

Serial No 8/2022

File No 2111/2021

2294/2020

MICHAEL RICHARD SALTMARSH and JILLIAN ANNE SALTMARSH

v WESTPAC BANKING CORPORATION

REASONS FOR JUDGMENT

FULL COURT
BRETT J
September 2022

1 I agree with Martin AJ that both appeals should be dismissed and with his Honour's reasons for
that determination.
2 I wish to add some brief comments. Speaking for myself only, the outcome of this appeal and my agreement with his Honour's reasons should not be viewed as an endorsement of the technical adequacy or appropriateness of a self-executing order of the type made in this case. That order, in the circumstances of this case, derives its validity and effect from the fact that it was made by consent. I agree with both the learned primary judge and Martin AJ that Holt AsJ did not err by making the order and that his Honour was not required to go behind the consent…

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: [2022] TASFC 8
Decision Date: 16 September 2022

CaseChat Overview and Summary

Saltmarsh (the applicant) brought proceedings against Westpac Banking Corporation (the respondent) in the Supreme Court of Queensland. The dispute concerned allegations of misleading and deceptive conduct under the *Australian Securities and Investments Commission Act 2001* (Cth) and the *Competition and Consumer Act 2010* (Cth). The applicant sought to recover damages allegedly suffered as a result of the respondent's conduct.

The primary legal issue before the Court was whether the applicant had provided sufficient particulars to establish a causal link between the respondent's alleged misleading and deceptive conduct and the loss or damage claimed. Specifically, the Court had to determine if the pleadings adequately pleaded the facts necessary to demonstrate that the respondent's conduct caused the applicant's loss.

The Court found that the applicant's pleadings lacked the necessary particularity to establish causation. It was held that merely alleging misleading conduct and subsequent loss was insufficient; the applicant was required to plead the specific facts that demonstrated how the respondent's conduct operated to cause the loss. The Court applied the principle that pleadings must provide fair notice to the opposing party of the case they are required to meet, and in this instance, the applicant had failed to do so in relation to the crucial element of causation.

The Court ordered that the applicant's statement of claim be struck out unless amended within a specified period to provide adequate particulars of the causal link between the respondent's conduct and the applicant's alleged loss.

Orders