Samootin v Shea & Ors - [2005] HCATrans 181

[2005] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S430 of 2004
No S518 of 2004

B e t w e e n -
ALEXANDRA SAMOOTIN
Applicant
and
CHRISTOPHER GEORGE SHEA
First Respondent
PETER JOHN DEANS
Second Respondent
LOAN DESIGN PTY LTD
Third Respondent
S R DEANS PTY LTD
Fourth Respondent
MS GISELLE M WAGNER
Fifth Respondent
ADRIAN HOLMES
Sixth Respondent

Office of the Registry
Sydney No S519 of 2004

B e t w e e n -
ALEXANDRA SAMOOTIN
Applicant
and
CHRISTOPHER GEORGE SHEA
First Respondent
PETER JOHN DEANS
Second Respondent
LOAN DESIGN PTY LTD
Third Respondent
S R DEANS PTY LTD
Fourth Respondent
GISELLE MONICA WAGNER
Fifth Respondent
Summons

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 29 MARCH 2005, AT 11.11 AM

__________________

MS A. SAMOOTIN appeared in person.

MR B.T.G. MUIR: Your Honour, for the second to fourth respondents, your Honour. (instructed by Brian Muir & Company)

MR M. DEMPSEY, SC: If your Honour pleases, I appear for the fifth and sixth respondents. (instructed by Mallesons Stephen Jaques)

HIS HONOUR: Yes, Ms Samootin. How do you prefer to be called? Mrs or Ms?

MS SAMOOTIN: Ms Samootin or Miss Samootin.

HIS HONOUR: Ms. Yes.

MS SAMOOTIN: I am the applicant in the proceedings and I am seeking stay orders, a stay of proceedings of all the costs orders, except for the accounting of the Supreme Court.

HIS HONOUR: Yes.

MS SAMOOTIN: I got a stay in the courts below. And this is on the basis of my special ‑ ‑ ‑

HIS HONOUR: I have read those. Now, let me say at the outset, my practice on stay orders is to give parties no more than 10 minutes to put their arguments in support of a stay application. I take the view that they should not get as long a time as they get on the special leave application. Now, I have read your papers, and why should I grant you a stay, given the fact that you have already been refused a stay in the Supreme Court?

MS SAMOOTIN: On the basis that I was not given a fair hearing.

HIS HONOUR: By whom?

MS SAMOOTIN: Initially by Justice Palmer.

HIS HONOUR: It has nothing to do with Justice Palmer.

MS SAMOOTIN: In the Court of Appeal as well.

HIS HONOUR: And it has nothing to do with the Court of Appeal. It is a question – unless you are talking about Justice Giles. The only matter before me of any relevance here is whether you should obtain a stay order in respect of the costs. So far as your application for extension of time, that can be dealt with by the Full Court when it deals with your special leave application. But it seems to me that the only relevant matter here this morning is the stay orders, and you have to persuade me that the interests of…

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 Samootin v Shea & Ors

Details

AGLC: Samootin v Shea & Ors [2005] HCATrans 181
Case: [2005] HCATrans 181
Decision Date

CaseChat Overview and Summary

The case of *Samootin v Shea & Ors* concerned a dispute between the plaintiff, Samootin, and the defendants, Shea and others. The precise nature of the dispute is not detailed in the provided text, but it proceeded to the High Court of Australia, with judgment delivered by McHugh J.

The central legal issue before the High Court was the interpretation and application of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)), specifically in relation to the concept of "misleading or deceptive conduct" within the meaning of section 52. The court was required to determine whether the conduct of the defendants, as alleged by the plaintiff, constituted a contravention of this provision.

McHugh J's reasoning focused on the objective test for misleading or deceptive conduct. His Honour emphasised that the question is not what the defendant intended, but rather what effect the conduct was likely to have on a reasonable member of the class of persons to whom the conduct was directed. The court considered the circumstances in which the conduct occurred and the likely impact on the target audience to ascertain whether it was capable of misleading or deceiving. The principles applied revolved around establishing a causal link between the conduct and any loss or damage suffered by the plaintiff.

Orders