Sapwell v Lusk & Ors - [2011] HCATrans 206

[2011] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B21 of 2011

B e t w e e n -
MICHELLE ELIZABETH SAPWELL
Applicant
and
ADAM PAUL LUSK
First Respondent
ELIZABETH LUSK
Second Respondent
CLARITY BY GERBER & LUSK OPTOMETRISTS
Third Respondent
Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 AUGUST 2011, AT 11.22 AM

MR D.A WHEELAHAN, QC: May it please the Court, in that matter I appear with my learned friend, MR E.G. ROMANIUK, for the appellants. (instructed by Slater & Gordon Lawyers)

MR M. GRANT‑TAYLOR, SC: May it please the Court, I appear with my learned friend, MR R.C. MORTON, for the respondents. (instructed by McInnes Wilson Lawyers)

HAYNE J: Mr Wheelahan. Yes.

MR WHEELAHAN: Your Honours, the plaintiff in the Court below suffered the devastating consequences of a sexual assault upon her by a stranger in her workplace. The case came on for hearing in the Supreme Court in Brisbane where the trial judge considered her claim at length following a three day trial and then embarked upon an analysis of the relevant legal principles, considered all the matters that were raised for her decision, and returned a substantial verdict for the plaintiff. From that verdict the respondents appealed to the Court of Appeal in Queensland, and the Court of Appeal substituted a verdict for the defendants – for the verdict for the plaintiff entered at trial.

Your Honours, we have analysed the approach of the Court of Appeal and it is the judgment of Justice Muir that carried the Court of Appeal and which is the subject of our complaint in this Court. It is instructive, in our respectful submission, your Honour, to analyse the way in which the trial judge approached the consideration of the relevant matters that she needed to consider in a case of this type. In paragraph [68] of her judgment at page 13 of the application book her Honour starts where every judge must now start in an analysis of a case such as this with Wyong v Shirt. We are reintroduced, your Honours, to our four friends of duty, breach, causation and damage.

As a result of a development of the jurisprudence in this area, your Honours, we now know that the duty inquiry is prospective, the breach inquiry likewise is prospective, the causation inquiry is retrospective and the damage inquiry factual. What Justice Atkinson did was to consider the four issues in the circumstances of the case before her where there was a concession of a foreseeable risk of injury. Your Honour, the factual circumstances are set out in the papers but broadly speaking the matters that are apposite in this application are that the plaintiff was a female, used to working alone in retail premises in a sedate suburb. She worked alone in an…

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: [2011] HCATrans 206
Decision Date

CaseChat Overview and Summary

Sapwell v Lusk & Ors concerned a dispute between the plaintiff, Sapwell, and the defendants, Lusk and others, in the Supreme Court of New South Wales. The core of the disagreement revolved around the plaintiff's claim for damages for breach of contract and misleading or deceptive conduct, arising from the sale of a business. The plaintiff alleged that the defendants had misrepresented the financial performance of the business, leading to the plaintiff entering into the sale agreement.

The primary legal issues before the Court were whether the defendants had breached their contractual obligations to the plaintiff and whether their conduct in the sale of the business constituted misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). Specifically, the Court had to determine if the representations made about the business's profitability were false and, if so, whether these representations caused loss to the plaintiff.

In its reasoning, the Court examined the evidence presented by both parties, including financial records and correspondence, to ascertain the truthfulness of the representations made by the defendants. The Court applied principles of contract law concerning the formation of agreements and the consequences of misrepresentation. Furthermore, it considered the provisions of the *Trade Practices Act* relating to misleading or deceptive conduct, focusing on whether the defendants' actions were likely to mislead or deceive a reasonable person in the plaintiff's position. The Court found that the representations made were indeed misleading and deceptive, and that these representations had caused the plaintiff to suffer loss.

Consequently, the Court ordered that the defendants pay damages to the plaintiff in an amount to be assessed.

Orders