Sgro v Jainran Pty Limited & Ors

[2010] HCATrans 307

[2010] HCATrans 307

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S107 of 2010

B e t w e e n -

JOSEPH SGRO

Applicant

and

JAINRAN PTY LIMITED (ACN 002 395 673)

First Respondent

CH REAL ESTATE PTY LIMITED (ACN 054 208 294)

Second Respondent

BOYANA PTY LIMITED (ACN 003 090 846)

Third Respondent

Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 NOVEMBER 2010, AT 12.09 PM

Copyright in the High Court of Australia

MR B.A.J. COLES, QC:   May it please the Court, I appear with MR A.F. FERNON, for the applicant.  (instructed by Joseph Grassi + Associates)

MR S.W. CLIMPSON:   May it please the Court, I appear for the first respondent.  (instructed by Ellison Tillyard Callanan)

FRENCH CJ:   There is a submitting appearance for the second and third respondents.  Yes, Mr Coles.

MR COLES:   If your Honours please.  The question of principle which the applicant seeks to raise is best identified by reference to paragraph 104 of the judgment of Justice Basten, with which conclusions Justice Beazley at paragraph 15 of her judgment expressed agreement.  That may be found at application book page 117.  The paragraph to which I have referred identifies the two aspects in which it was said that the conduct of the applicant personally or directly was misleading and deceptive conduct, in contravention of the prohibition in section 42 of the Fair Trading Act.

The court appears to have accepted the need, understandable from a number of decisions of this Court, to identify with precision the particular features of the alleged conduct which are said to contravene the Act.  In substance, as we have set out in the submissions, the conduct alleged against the applicant was described as the conduct in which he was involved, so far as the presentation by the corporation, of which he was the directing mind and will, of a contract, a contract which was drawn up as to the fact of its drawing up, but not as to its content, upon his instructions.

The solicitors who then drew up that contract in the course of doing so attached to the contract and made it a part of the contract certain documents.  One of those documents was a planning certificate.  Another one curiously was a set of draft requisitions and apparently pro forma answers thereto, each of which, amongst other things, asserted incorrectly that there was no road widening affectation to which the relevant property was subject.

It was not suggested that in drawing up a contract containing that material and thereafter circulating it or supplying it for the consideration of the intending purchaser, who it was accepted relied on its content, it was not suggested that the applicant himself had given instructions to prepare the contract in any particular way, to attach any particular documents to it and so far as it matters, which it only did in relation to the section 75B matter, that he was aware that it contained the – and was circulated by the solicitors – containing material of that kind.

Now, the importance we have identified, your Honour - an important question accordingly arises which we would identify if we may in these terms.  It is really having regard to – and your Honours will see it really comes from what Justice Basten says in the whole of paragraph 104, but if I can just take you to about line 40:

Just as the corporation will be liable because it presented a contract to the purchaser containing statements which were in fact misleading or deceptive, so Mr Sgro will be liable under s 42 if he engaged in conduct of the same kind.  Apart from the conduct involved in signing the contract –

I will come to that in a moment –

his conduct was engaged in through the agency of the solicitors.  They, acting on instructions received from him (albeit on behalf of the vendor) prepared the contract and, after obtaining its execution by him (on behalf of the vendor), again acting on his instructions as the human embodiment of the corporation, forwarded the contract to the purchaser.

I interpolate by way of exchange in apparently the conventional way –

Mr Sgro submitted that the acts of the solicitors were carried out purely as agent for the vendor, and not on behalf of Mr Sgro himself, who was not their client.  In terms of legal analysis, that was correct; in terms of the characterisation of the conduct, it was –

This is perhaps the important part –

nevertheless conduct which can be attributed to the direction of Mr Sgro, as a matter of fact.  That the mechanical task of presenting the contract was delegated to someone in the solicitor’s office (probably a clerk) does not prevent the conduct being properly attributed to Mr Sgro, as the person directing he affairs of the vendor.

In paragraph 105 his Honour recorded the conclusion that:

his Honour was correct at [91] in concluding that Mr Sgro was directly liable for the misleading and deceptive conduct because “he engaged in it” and “his liability is the product of his own conduct” and was not merely accessorial liability.

In that latter respect, of course, your Honours will be aware that Mr Sgro’s appeal from the conclusion of the trial judge that for the purposes of section 75B of the Trade Practices Act Mr Sgro was involved in the contravening conduct of the corporation, in the sense that he was knowingly concerned in it, was allowed.  Nevertheless, the finding of the Court of Appeal was that he, in effect, was liable separately and individually for his own conduct, that conduct apparently being the conduct of the corporation in committing the misleading and deceptive conduct which was to be attributed to him.

Now, may we say, your Honour, it is plain that Mr Sgro did not personally engage in the preparation and circulation of the draft contract.  Equally, his act of giving instructions could not, of itself, have led any particular person into error which would be necessary to found any conclusion against him that he was ‑ ‑ ‑

FRENCH CJ:   You would not put him into the category of that term which Justice Young was a little bit dubious about of a mere conduit?

MR COLES:   No, no, not for present purposes, no. 

HEYDON J:   Mr Coles, did not his solicitors tell him to ensure that a declaration was made about whether there were any government proposals affecting the land and a road‑widening proposal by the RTA is a government proposal affecting the land?

MR COLES:   I am not sure ‑ ‑ ‑

HEYDON J:   There was no such disclosure in the contract.

MR COLES:   The case about the contract, your Honour, was of course that the contract contained – it was not so much a disclosure matter, one would think, as a direct misrepresentation matter because the contract with the attachments stated indirectly, both in the certificate and in the other document, the requisitions of the contract, that the land was not so affected ‑ ‑ ‑

HEYDON J:   The applicant knew that.  He knew the converse.

MR COLES:   The applicant himself, of course, had known that there was a road‑widening affectation to which the land was subject for some time before.  Subjectively, he did not think it mattered much.  But the point here is, of course, it is not his knowledge that really matters in connection with the misleading and deceptive conduct that is attributed to him because the misleading and deceptive conduct is the conduct which arose in the way I have described by, in effect, the publication of the contract.  Then the process of reasoning is not, with respect, borne out or dependent upon some process involving instructions or conversations with his solicitor, but really derives by an attribution back to Mr Sgro of the conduct found to be misleading and deceptive on the part of the corporation itself.

So that, in effect, what the paragraph to which I have referred suggests or indicates is that the applicant is fixed with liability because of the misstatements in the contract because it would seem he was the person – and this is the only reason given – the reason given is that set out in the last lines of paragraph 104.  He was the person “directing the affairs of the vendor”, that is to say he was its human embodiment or directing mind and will or whatever other expression one may employ. 

Plainly, in our respectful submission, it is not explained how liability which falls upon a corporation because of the acts of other agents – in this case its solicitors – is to be sheeted home to another individual merely because or for the reason that that other individual is the directing mind or will or the human embodiment of the corporation.

It is not a case, in our respectful submission, of the kind that one frequently – or not infrequently anyway – encounters where you have a separate, but direct liability or concurrent or co‑ordinate liability between both the corporation on the one hand, and also its director or directing mind and will on the other.  Examples of that occur in this Court in well‑known cases, Hamilton v Whitehead and Houghton v Arms, where in each case the conduct of the particular elimination of the corporation is the conduct either of or attributed to the corporation whose employee, for example, has engaged in it, but is also capable of amounting to, for section 42 Fair Trading Act purposes, the separate and equally misleading conduct of the officer concerned. 

But there is a substantial difference, of course, in the present case from that situation because in the Houghton v Arms or Hamilton v Whitehead situation the same conduct or the identical conduct for which the corporation is responsible is the conduct which the officer or employee has engaged in.  The direct liability between the corporation and the officer is for the identical conduct performed or carried out at the same time and no question of attribution is involved.  Each is simply factually liable or factually engaging in the conduct.  So the single issue in the case is ‑ ‑ ‑

FRENCH CJ:   Attribution is involved to the extent that the conduct of the individual is attributed to the corporation for the purposes of say section 52 or the general operation of section 42.

MR COLES:   Absolutely, but the particular item of conduct or the particular ‑ ‑ ‑

FRENCH CJ:   It is one piece of conduct.

MR COLES:   It is one piece of conduct and it happens at the same time ‑ ‑ ‑

FRENCH CJ:   It is carried out by an individual, can be “misleading or deceptive” and at the same time can be attributed as misleading and deceptive conduct of the corporation.

MR COLES:   Yes.  Now here, of course, it is quite different because here the conduct in connection with preparing the contract is that of giving instructions to the solicitor to do it and I emphasise, not to do it in a misleading and deceptive way, but simply to go out and prepare it.  Then, of course, as a result of their conduct – and there was evidence about this – but as a result of their conduct the corporation, through them, utters into the relevant market the misleading and deceptive representations or information which that contract then contains.  But that, of course, immediately renders the corporation liable for contravention of the corresponding provision in the federal Act. 

So it is said that then works backwards, as it were, to constitute an attribution to the directing mind and will of the corporation for the purposes of section 42 of the State Act.  In our respectful submission, it is difficult to discern any legitimate principle to justify that attribution.  They are not partners, they are not in law ‑ ‑ ‑

FRENCH CJ:   Attribution is a red herring.  Does that detract from the proposition that section 42 simply has direct application in the circumstance you have just posited, on the basis not of the instructions, but on the basis of execution of the contract with misleading material incorporated in it?

MR COLES:   Absent evidence that Mr Sgro gave instructions which were themselves misleading and deceptive and giving instructions to prepare a contract to a solicitor is not such conduct, merely turns out to be as a matter, I suppose, of steps or a chain of causation it merely turns out that there becomes or comes into play conduct that is misleading or deceptive.  But you would not say he caused that in any sense, other than the sense that he asked or directed, on behalf of the corporation, the solicitors to go forth and prepare the contract. 

In our respectful submission, one after all must, I emphasise, as did, with respect, the Court of Appeal, I think accept the proposition as this Court has laid down, one needs precision and clarity with the identification of a particular conduct.  Here the conduct has been identified and it is identified in the way I have described.  There can be nothing of itself misleading or deceptive in giving instructions of the kind I have described, which later unfortunately through conduct of other agents of the same corporation down the chain, turn out to produce a misleading and deceptive state of affairs.

So far as the other aspect attributed to Mr Sgro derives from the question of signing the contract, of course, Mr Sgro signed the final version of the contract, which was handed over in exchange.  It is not part of the respondent’s case, either at trial or in their present submissions, that they were led into error by the fact of the contract signed by Mr Sgro having been handed over at exchange and doubtless they handed over their own signed copy, their counterpart, having already been motivated to do so by the earlier representations contained in the drafts which were circulated.

In any event, even if it were otherwise, it would be difficult to see how one could ascribe the conduct of executing a contract plainly containing material, which is the expression of the corporation, as itself necessarily conduct of Mr Sgro but one does not need to have to go that far because there is no question, no suggestion that there was any reliance on the fact of his signature appearing on the exchanged counterpart that was part of the package of misleading and deceptive conduct and at trial there seems to have been a very large package which caused the loss of which the respondent complained.

So the matter, as I say, your Honour, boils down to whether one can - or upon what conceivable principle can one engage in this process of attribution through other agents of the corporation back through the corporation itself to the person who simply happens to be its directing mind and will.  So to come to the question of principle or to seek to articulate it, it is really where the conduct of agents of the company – here its solicitors – which render the company liable for misleading and deceptive conduct may be attributed to another person – in this case the applicant – because he is the directing mind and will of the company, but in circumstances where that person gave no instructions himself to those agents to act on behalf of the corporation in a misleading and deceptive way.  So, in our respectful submission, for reasons we have sought to articulate in the written submissions – I think I may have some time, could I simply ‑ ‑ ‑

FRENCH CJ:   You have only just hit the amber.

MR COLES:   There are potentially significant concerns about the outcome in the sense, if we may respectfully say so, that – and we have really, I think, identified these.  There is the absence of a principal foundation for the attribution.  There are implications, of course, for those who receive instructions as solicitors on behalf of corporations.  Do they owe duties, not only to the directing mind and will as well as the corporation. 

Finally we would say – we would emphasise – that one difficulty which the case seems to present or one source of confusion it seems to generate is simply this.  Both Acts, the State and federal Act, differentiate between conduct engaged in by a person and contravening conduct in which a person may be involved.  The latter form of conduct, of course, necessarily carries with it the requirement to prove matters going to state of mind or intention or the like of the 75B or, in the case of the Fair Trading Act, section 61 character, which necessitate an analysis of whether the person’s involvement was knowing or aiding and abetting, or the like.

In the present case, Mr Sgro, as I have pointed out was, in effect, exonerated from liability as an accessory of the corporation’s misleading and deceptive conduct ‑ ‑ ‑

FRENCH CJ:   Just so I understand it, the conduct that you are focusing on, the instructions to solicitors and the like is really focused on, I think, in ground 3 of your draft notice of appeal at 190, but the other finding of which you complain is it is composite of instructing solicitors to prepare a contract, signing the contract and by reason of a presentation of the contract to the first respondent.

MR COLES:   Yes.  The latter should be understood, I think, in the sense of the presentation of the draft contract because it was the statements in the contract in the condition in which the purchaser was then to execute it.

FRENCH CJ:   The purchaser knew what was in the contract must be presented because the purchaser had seen the drafts which contained the misleading statements.

MR COLES:   That is right.

FRENCH CJ:   How would this differ in fact from the case of a person who, let us say, instructed somebody to prepare some form of prospectus – it might just be for some proposed fundraising – and it contains false statements and without reading the prospectus or without reading it adequately, signs it and has it circulated to people who are misled by it?  That person is liable for misleading or deceptive conduct.

MR COLES:   A big difference, very big difference.

FRENCH CJ:   What is the critical point of distinction?

MR COLES:   The critical point of distinction is this, that members of the public will buy shares on the faith of the prospectus signed by the person who issues it.  That was not this case.  The present case is that the misleading and deceptive conducts were, in effect – I am sorry, the misrepresentations can I call them that – were embodied in what you might call the draft prospectus, before anyone signed it.  Then at the same time as they handed over their purchase money and took their allotment, then they were handed a copy of the signed prospectus.  That might be a better example.

FRENCH CJ:   Yes, all right.

MR COLES:   They are our submissions, if your Honour pleases.

FRENCH CJ:   Thank you, Mr Coles.  Yes, Mr Climpson.

MR CLIMPSON:   Thank you, your Honour.  Your Honours, the finding that Mr Sgro engaged in misleading and deceptive conduct in contravention of section 42 of the Fair Trading Act involves, from beginning to end, questions of fact.  Mr Sgro’s conduct included the putting forward of a contract to the purchaser which contained statements and failed to make disclosures in three areas.  These are identified by the trial judge in paragraph 91, which is on page 41 of the application book. 

The trial judge referred to them as deficiencies.  One area was the road‑widening proposal by the Roads and Traffic Authority.  The second area was the existence of litigation with the tenant of the 20‑year lease, to which the property was subject.  The third area was the fact that there had been a nine‑months rent‑free period, rather than a five‑month rent‑free period, as represented in the lease that was attached to the contract.

Other conduct of Mr Sgro included actions of the real estate agents, which included the brochure, which the trial judge also found to be attributable to Mr Sgro and that is in paragraphs 92 to 97 of the trial judge’s decision.  The two Court of Appeal judges did not deal with that attribution, presumably because their decision, in relation to the first head, was sufficient.  There is no issue that the documents in the contract that were put forward were misleading in each of those three areas.  The 149 certificate, attached to the contract, said there were no proposals from the RTA and there were answers to requisitions, within the contract that said the same.  In the second area there was another answer to requisition that there was no litigation, which may affect the property.  In the third area there were statements in the lease to the effect that there had only been five months rent‑free and that was also false.

The applicant accepts in paragraph 7 of their summary of argument that there were statements in the contract, which were false.  There is no issue that the conduct, in relation to each of those three areas, was material; their significance being obvious in circumstances where a purchaser was looking to acquire land, which was subject to a 20‑year lease and which was to be used as a petrol station and a convenience store.  There is also is also no issue that the purchaser relied on the conduct that issue being abandoned at the beginning of the Court of Appeal hearing.  The applicant argues that special leave ought to be granted because of the finding that the putting forward of the contract was Mr Sgro’s conduct, as well as the conduct of the vendor company itself.

From beginning to end, your Honours, the question of whether the putting forward of the contract should be attributed to Mr Sgro is a question of fact.  The trial judge found as a question of fact that the putting forward of the contract was Mr Sgro’s conduct, as well as the company’s conduct.  The two judges of the Court of Appeal who considered the section 42 issue found that there was no error in the trial judge’s finding.  The question of whether Mr Sgro engaged in the conduct of putting forward the documents in the contract was decided by the trial judge, having regard to all the circumstances.  His Honour found, as a fact, that Mr Sgro was the sole director and sole shareholder of the company.  That there were no other officers, managers of other staff of the company, Mr Sgro was the principal and as a practical matter was the only person in the affairs of the company.

His Honour found that Mr Sgro was the only source of instructions upon which the contract was prepared.  Your Honours will find those findings in the trial judge’s decision at paragraph 90 and also paragraph 3.  Paragraph 90, your Honours, is at page 40 of the application book.  Paragraph 3 is at page 4 of the application book.  Your Honour, the trial judge also took into account other circumstances and made findings in relation to Mr Sgro’s involvement in, and awareness of, facts relating to each of those three areas.  There were findings, in relation to his knowledge concerning the litigation with the tenant and the preceding disputation.  There were findings, in relation to Mr Sgro’s involvement in the further rent‑free arrangements that were reached that were not disclosed in the contract.  There were findings, in relation to Mr Sgro’s involvement in the removal of special condition 51 in the draft contract that had been prepared by the solicitor earlier in September 2003.

Mr Sgro, it was found, gave instructions for the removal of that additional condition, which would have qualified the representation in the lease that there was only a five‑month rent‑free period when, in fact, there had been a nine‑month rent‑free arrangement.  In relation to that question Justice Heydon raised an issue relating to whether there was evidence concerning whether Mr Sgro had been informed by the solicitor relating to the need to include information, relating to things such as the RTA affectation.  There is a reference in the first respondent’s submission in paragraph 33 on page 207 of the application book at about line 26:

Mr Sgro received a letter from the Solicitors in September 2003 advising of the need to disclose any government proposal relating to the land in the contract –

There was evidence, your Honours, before the trial judge of a letter from the solicitor to Mr Sgro in September 2003 that actually enclosed a copy of the draft contract, said to have been prepared by him in accordance with his instructions requesting that he read through the contract carefully and stating that:

??It is necessary to disclose the existence of any matter, which may detrimentally affect the property, such as a notice or proposal received from a local government authority, if you do not wish to run the risk of the purchaser either escaping the contract or requiring you to meet the cost of rectifying such a problem.??

Your Honours, there were also findings in relation to Mr Sgro’s involvement in the way that the property was promoted by the real estate agent, including his involvement and approval of the brochure.  There were also findings of him fobbing off inquiries by the real estate agents, in relation to the litigation and the giving of instructions to proceed with the advertising program, notwithstanding those proceedings.

The trial judge, your Honours, concluded at paragraph 90 of his reasons that in the context of all of those findings that:

Mr Sgro is the human embodiment of the company and all its action were his actions –

That finding that he was the embodiment was not the subject of challenge before the Court of Appeal.  Your Honours, the trial judge proceeded to analyse the case in accordance with the principle, which the Chief Judge identified in Campbell v Backoffice, that:

??Whether the proffering of a contractual document containing a false statement amounts to misleading or deceptive conduct is a matter of fact to be determined by reference to all the circumstances.??

Whether conduct, which is misleading or deceptive, can be attributed to a particular person, for example a director of an employee, is similarly a question of fact to be determined by reference to all the circumstances.  To the extent my learned friend suggests that there is a need for consideration of agency issues, I would rely on what Justice Basten said in his decision that the question is not who the solicitors were acting for, as a matter of agency law, but rather the question is whether, as a question of fact, the conduct of putting the contract forward was attributable to Mr Sgro.

Your Honours, my learned friend in paragraph 39 of the written submissions, proceeds with an argument that because Mr Sgro’s name did not appear on the draft contract that Mr Sgro cannot be liable under section 42.  The submission appears to be that a person who controls the company cannot be personally liable under section 42, unless they are a disclosed controller.  It is submitted that the Court will not allow such a construction of section 42.  Your Honours, the trial judge’s characterisation of the conduct, being that of Mr Sgro, as well as the company’s, is unremarkable.  It involves no special features which warrant the attention of this Court.  Houghton v Arms illustrates the established and obvious proposition that an act of an individual may be both a corporate act, as well as a separate act of the actor involved in the context of section 42.  The facts of this case ‑ ‑ ‑

FRENCH CJ:   You do not need any attribution issue for that.

MR CLIMPSON:   No, your Honour.

FRENCH CJ:   That is why I say it can be a distraction.

MR CLIMPSON:   It can, your Honour.  The simple question in a nutshell is did Mr Sgro engage in the relevant conduct, which was misleading and deceptive and, in my submission, his Honour dealt with that issue as a question of fact and came to the conclusion that, indeed, it was his conduct, having regard to all the circumstances.  Your Honours, the facts in this case are at the extreme end where there was only one director.  No other officer, manager or other staff and in circumstances where his Honour was able to find, having regard to all the circumstances, that Mr Sgro was truly the embodiment of the company and that it was his conduct, which caused the loss and damage.  They are my submissions.

FRENCH CJ:   Thank you.  Yes, Mr Coles.

MR COLES:   Can I just pick up a matter?  This is not in reply it is really in answer to a question I did not deal with adequately that came from your Honour Justice Heydon.  Your Honour referred to some evidence in connection with communications between Mr Sgro and his solicitor about the fact of the road widening affectation.  Indeed, that produced in the evidence – it is of no ultimate, in our submission, present relevance, but the solicitor did, in fact, draw up an earlier contract, which contained a copy of the deposited plan or some plan equivalent to it, which actually did disclose or illustrate anyway the road widening affectation.  But by an oversight acknowledged by the solicitor himself in his own evidence and without any instructions or directions from Mr Sgro to that effect, the solicitor left that out of the contract that they ended up circulating to the respondent parties.  That is that matter.

Can I just respectfully point out in what I trust must necessarily be a brief reply, we are, of course, making this application and your Honours are considering it on appeal from the decision of the Court of Appeal and their determination on what was said to be the conduct, in which Mr Sgro engaged, which was misleading and deceptive.  The trial judge surveyed a very large ambit of activity, some for different purposes.  Suffice to say his central conclusion to the effect that Mr Sgro was personally liable as an aider and abetter or as a person knowingly concerned in the corporations misleading and deceptive conduct by reason of this contract and the like, was reversed by the Court of Appeal and as footnote 4 of our written submissions in reply identifies there are a large number of other paragraphs in the Court of Appeal judgement, which do not accommodate the present utility, as pressed upon by our learned friends, of reviewing this application in the light of everything the trial judge said.

As I say you were, with respect, given an extensive description of facts found by the trial judge, but they simply did not – and this was a criticism which succeeded in appeal, in our respectful submission – they did not accommodate the trial judge’s conclusions and his?? expressions of views did not accommodate this Court’s stricture as to the clear identification, in the context of relevant other matters, of what the misleading and deceptive conduct was.  In fairness to the Court of Appeal they tried and paragraph 104, to which I have taken you sets out the two restricted and limited or the one roll up, if you like.  But the activity involving his instructing solicitor and what led to?? there was the final analysis or synthesis from the collection of data, as it were, that the trial judge had supplied from which the conclusion of personal misleading and deceptive conduct was drawn and by the process of attribution.

In the submissions in reply and I do not want to take up your Honours’ time with this, but your Honour will see by way of illustration we have dealt with the factual sort of matters that our learned friend was talking about this morning.  For example, Justice Young, just to quote one said there was – this is the last paragraph of our written submissions, we draw attention to what Justice Young said at 312:

There was no evidence at all to show that Mr Sgro had any knowledge about the problems with the requisitions or the s 149 certificate, or indeed that he had even seen the brochure –

This is the brochure my learned friend was talking about –

after the Jo‑Al proceedings had been commenced.

There is no utility, in our respectful submission, that is one illustration.  Take another one my learned friend gave, which was extracted at the second bullet point on paragraph 12 of the submissions in reply application book page 214:

Jainran refers to the omission from the Contract of “Additional Condition 51” contained in earlier drafts of the Contract.  That clause referred to earlier rental concessions provided to Jo‑Al.  The decision to remove this clause was found by the trial judge to have been based on the Solicitors’ view that it was no longer relevant.  He found that such view was not to be criticised.

There is, with respect, little utility in judging the merit of this application by recourse to the miscellany of matters, emanating from the acting justice’s reasons of the case.  The Court of Appeal expressed what the relevant conduct was.  They came to that conclusion no, in our respectful submission, as a matter of fact because attribution is not a matter of fact.  Attribution is a conclusion, in our respectful submission, which must be informed by principle.  In that respect, your Honour, there is a significant case of error for reasons we have put in the written submissions and this morning, would warrant your Honours’ consideration of the grant of special leave.

SGRO
French CJ and Heydon J
Sydney – 12/11/10

FRENCH CJ:   Thank you, Mr Coles.

This application for special leave, in our opinion, involves a decision turning upon questions of fact to such an extent that renders it an unsuitable vehicle for the grant of special leave and on those findings of fact does not have sufficient prospects of success to warrant the grant of special leave.

Special leave will be refused with costs.

The Court will adjourn until 2.00 pm.

AT 12.50 PM THE MATTER WAS CONCLUDED