Snapperhead Productions Pty Ltd v Qantas Airways Limited

[2013] NSWLC 8

Local Court

New South Wales

Medium Neutral Citation:

Snapperhead Productions Pty Ltd v Qantas Airways Limited [2013] NSWLC 8

Hearing dates:

24/04/2013

Decision date:

26 June 2013

Before:

Magistrate O'Brien

Decision:

i.Judgment for the plaintiff in the sum of $13,875, plus

ii.Pre judgment interest pursuant to section 100 of the Civil Procedure Act 2005 from 8 December 2010, plus

iii.Filing and service fees, plus

iv.I will hear the parties on the question of costs

Catchwords:

CIVIL PROCEEDINGS - Trade Practices Act - misleading and deceptive conduct - representations and non-disclosure/silence - no need for non-disclosure/silence to be intentional under Trade Practices Act - agreed facts - Civil Aviation (Carriers Liability) Act

Legislation Cited:

Civil Aviation (Carriers Liability) Act 1959 (Cth)
Civil Procedure Act 2005
Evidence Act 1995
Local Court Act 2007
Trade Practices Act 1974 (Cth)

Cases Cited:

Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251
CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd [2004] VSCA 232
Coleman v Gordon M Jenkins and Associates [1988] FCA 393
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Greco v Bendigo Machinery Pty Ltd (1985) ATPR 40-521
Green v AMP Financial Planning Pty Ltd [2008] NSWSC 1164
Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477
Sidhu v British Airways [1997] AC 430
Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331
Townsend v Collova [2005] WASC 4

Texts Cited:

Principles of Contract Law (Paterson, Robertson and Duke, 3rd Edition, 2009)

Category:

Principal judgment

Parties:

Snapperhead Productions Pty Ltd
Qantas Airways Limited

Representation:

Mr S O'Brien (for the plaintiff)
Mr N Kirby (for the defendant)
Murdoch Spinks Solicitors (for the plaintiff)
Norton Rose Lawyers (for the defendant)

File Number(s):

2012/00279327

Judgment

Introduction

1. These proceedings commenced with the filing of a Statement of Claim on 4 September 2012 in which the plaintiff sought damages from the defendant in the sum of $18,421.48 plus interest pursuant to section 100 of the Civil Procedure Act 2005 and costs. The defendant denies that it is liable to pay those damages. I heard the matter in the Downing Centre Local Court on 24 April 2013. Mr O'Brien of counsel instructed by Murdoch Spinks appeared for the plaintiff and Mr Kirby of counsel instructed by Norton Rose for the defendant. At the completion of the hearing I directed the parties to provide written submissions and adjourned the matter for decision. I have gratefully received those written submissions, and they have been carefully considered.

1. The matter proceeded in the usual way with the filing of affidavit evidence and the deponents of those affidavits being cross-examined. As the matter transpired there were a limited number of factual issues in dispute. Much of the factual matrix giving rise to the parties' dispute was agreed. The evidence relied upon by the plaintiff comprised the affidavits of Benjamin Daniel Wilkins sworn 25 January and 2 April 2013. The evidence relied upon by the defendant were the affidavits of Fiona Morris sworn 15 March and 22 April 2013.

Background

1. The background to the matter is that the plaintiff is a company engaged in the business of filming sporting events. The company's sole director and its moving spirit is Benjamin Wilkins. His role in the company is as a film camera operator and in film production. The defendant is Australia's national airline, and is engaged in the business of providing airline services both within and outside Australia. In or about October 2010 the plaintiff, via Mr Wilkins, was engaged as a sub-contractor by Inner Sanctum Media (ISM) to film the Ashes test cricket series between Australia and England. That series was played in Australia during the summer of 2010 - 2011. The plaintiff was also required to film other non test matches that the English cricket team would participate in during that period. The film footage taken by the plaintiff and provided to ISM was for broadcast in the United Kingdom by SkySports. One of the matches that was to be filmed by the plaintiff was the Australia versus England test match to be played at the Adelaide Oval in early December 2010. Mr Wilkins of the plaintiff does not reside in Adelaide and was required to travel there to undertake the task for which he had been engaged. To do so he decided to utilise the services offered by the defendant and to travel to Adelaide by aircraft on flight QF667. He boarded that flight in Brisbane. I have inferred that he had flown with the defendant in the past as he was a member of the Qantas Club at the time. In doing so he engaged the defendant to transport not only himself but also personal items of luggage along with the items of equipment required by him to film the cricket as he had been engaged. In short the contention of the plaintiff is that the defendant failed to deliver certain critical pieces of his equipment to Adelaide, that it (the defendant) then undertook to meet the cost of his obtaining substitute equipment, that in reliance on the defendant's promise the plaintiff obtained such equipment and incurred costs in doing so for which the defendant is responsible and has now refused to pay. The plaintiff has pleaded its case in reliance upon the Trade Practices Act 1974 (Cth), it contending that in all the circumstances that arose, the conduct of the defendant was misleading and deceptive or likely to mislead or deceive (section 52) and that as a consequence of the loss that flowed, it is entitled to an order for damages (section 82).

1. At the commencement of the hearing the parties provided, in accordance with the court's practice, an Agreed Statement of Facts and Issues. This document sets out clearly that which was agreed between them and that which I was required to determine.

The Agreed Facts

1. The agreed facts were in the following terms:

(i)   Mr Benjamin Wilkins is and was at all material times the sole director of the plaintiff, and as such, the plaintiff's guiding mind and will.

(ii)   On 30 November 2010 Mr Wilkins was a passenger on Qantas flight QF667 from Brisbane to Adelaide.

(iii)   Mr Wilkins was a member of the Qantas Club at the time.

(iv)   Mr Wilkins checked in 11 items of baggage at Brisbane airport, including a large silver media box (media box) labelled ADL QF9020730.

(v)   On arrival at Adelaide airport Mr Wilkins attended the baggage carousel for his flight. He was unable to locate three of the 11 items of baggage including the media box. He promptly reported these items as missing to staff at the Qantas baggage service department at the airport. He was informed that his flight was overloaded and that certain luggage items were taken off the plane and would arrive on a later flight and be delivered to him.

(vi)   The media box was in fact loaded onto flight QF667 and was delivered by Qantas to Adelaide airport.

(vii)   Qantas CCTV footage available at the time (but which no longer exists) showed the media box being loaded onto QF667 from Brisbane to Adelaide.

(viii)   Qantas load records available at the time showed that the media box was loaded onto QF667 from Brisbane to Adelaide.

(ix)   On 1 December 2010 Mr Wilkins had a conversation with Fiona Morris (Qantas Executive Relations Manager) on the telephone in which Ms Morris indicated that Qantas would pay the costs of the hire of a replacement camera until his camera was located.

(x)   Fiona Morris and Mr Wilkins both assumed at the time that the media box was in the custody of Qantas and would be delivered to Mr Wilkins within a short period of time.

(xi)   On about 14 January 2011 the plaintiff was informed that the media box had been located at Adelaide Oval and had been there for "all the time". That same day Mr Wilkins informed the defendant that the media box had been located.

(xii)   Neither of the parties took the media box to Adelaide Oval.

The Agreed Issues

1. The Agreed Issues for my determination were in the following terms;

(i)   Whether or not the conduct of the defendant was misleading or deceptive within the meaning of the Trade Practices Act 1974 (Cth).

(ii)   Whether or not the plaintiff suffered any loss or damage as a result of any alleged reliance on the defendant's misleading or deceptive conduct (where found).

(iii)   The amount of any loss or damage.

(iv)   Whether or not the Civil Aviation (Carriers Liability) Act 1959 (Cth) excludes the plaintiff's claim under the Trade Practices Act 1974 (Cth) or limits the amount of loss or damage recoverable to approximately $1600.

The Evidence

1. Both Mr Wilkins and Ms Morris gave oral evidence and each of them was cross-examined. Their evidence is to be considered in conjunction with the agreed facts and the affidavits sworn in the proceedings by each of them. Mr Wilkins evidence revealed that the subject media box was silver in colour and made of metal. It was of the standard size and type generally used by the plaintiff when transporting equipment by aircraft. It was approximately 100 centimeters long, 50 centimeters high and 40 centimeters wide. A photograph of a media box similar in size, shape and appearance was exhibited to Mr Wilkins affidavit of 25 January 2013. Given its dimensions, it would certainly be difficult to miss on an airport baggage carousel. Mr Wilkins' evidence, which on balance I accept, was that the media box did not appear on the baggage carousel at Adelaide airport as expected. I further accept his evidence, which was not seriously challenged by the defendant, that the media box contained within it the following film, camera and audio equipment, all of which was to be used by him in carrying out the filming work of the cricket:

• Panasonic HD Camera in P2 format
• Radio microphone
• XLR cables
• Tripod base plate
• GPS
• Top light
• Hand microphones

1. Mr Wilkins evidence indicated that the camera contained within the media box had been hired by ISM and provided to the plaintiff for his use. Although Mr Wilkins affidavit indicated that the audio equipment within the media box had also been hired by ISM, his evidence in cross examination was to the effect that certain of the items in the box were owned by him (or the plaintiff) and had not been hired at all. This discrepancy does not materially affect my assessment of Mr Wilkins. I regarded him as an honest witness who throughout his evidence made concessions as appropriate and was in my view doing his best to assist the court. My impression of him was as a witness upon whom I could rely. His justifiable sense of grievance with the defendant, given that it had failed to deliver his media box in accordance with what was his reasonable expectation, and had clearly caused him significant aggravation, inconvenience and cost, did not in my assessment colour his evidence in a way that impacts on his general reliability.

1. Subject to certain matters referred to below, I formed a similarly favourable view of the evidence given by Fiona Morris. Although the Agreed Facts described her as the Qantas Executive Relations Manager she described herself in her evidence as the defendant's Manager of International Customer Care. She impressed as an experienced and capable woman, who was in her dealings with Mr Wilkins anxious to do all she could to minimize the disruption to him that had arisen. In the course of her employment she had regularly handled complaints associated with lost or delayed baggage and had extensive experience with the steps to be taken to locate same. She gave her evidence clearly and carefully and was generally a witness upon whom I could rely. She made appropriate and fair concessions during her cross-examination. These concessions allowed me to conclude on balance that Qantas records available at the time, including CCTV footage of the media box being loaded onto flight QF667, load records for flight QF667, along with records indicating the items of baggage "bumped" from QF667 in Sydney, would, had they been properly scrutinized and considered made it absolutely clear to the defendant that the plaintiff's media box had in fact been delivered to Adelaide in accordance with the plaintiff's reasonable expectation. There is no other conclusion that can be drawn having regard to the totality of the evidence. Even if it is the case that this may not have been able to be ascertained by the defendant's employee at the Qantas baggage service department at the Adelaide airport on 30 November 2010, there is absolutely no reason advanced in the evidence as to why Ms Morris in the following days could not have been appraised of the records that were in the defendant's possession and control and, given her experience, been able to draw the only reasonable conclusion available, that is, that the media box was delivered to Adelaide as required. To the extent that Ms Morris did not accept this proposition then I reject her evidence.

1. As it happens, and following the discussion referred to in Agreed Fact (ix), Mr Wilkins hired a replacement camera and purchased certain other equipment so that he could undertake the filming of the Ashes Series as he was contracted to do. In due course he made a claim upon Qantas for reimbursement. That request was declined so giving rise to the proceedings that are before the court.

ISSUE 1 - Was the conduct of the defendant misleading or deceptive within the meaning of the Trade Practices Act 1974 (Cth)

1. The plaintiff has brought its claim pursuant to the Trade Practices Act 1974. Its cause of action relies upon representations made by the defendant which it alleges were in breach of section 52 of the Act. Section 52 is found within Part V of the Act. That Part is styled "Consumer Protection". The section, which is clearly wide ranging in its scope, relevantly provides:

52(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

1. In considering section 52 I must bear in mind the provisions of section 51A in the following terms:

51A Interpretation

(1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.

(2) For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.

(3) Subsection (1) shall be deemed not to limit by implication the meaning of a reference in this Division to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.

1. As the defendant's Case Summary observes in paragraph 11, section 52 of the Trade Practices Act "simply sets a standard of conduct for corporations in trade and commerce - enjoining them not to engage in conduct that is misleading or deceptive or likely to be so. If a corporation transgresses that standard of conduct, then it opens itself up to the remedies in Part VI of the Act." Section 82 of the Act relevantly provides that:

a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part...........V....... may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.

1. There is no issue that the defendant was a corporation involved in trade or commerce. The principal issue in the case is whether or not its conduct in making the representations that it did it to the plaintiff, misled or deceived it or were likely to do so. If the representations are found to be of the type proscribed by the Trade Practices Act, then Agreed Issues (ii), (iii) and (iv) will fall to be determined. I would add that there is no issue that the conduct of the defendant's employees is to be regarded as its conduct by virtue of the operation of section 84 of the Trade Practices Act 1974.

1. What then precisely were the representations made by the defendant? It seems to me that the evidence allows me to conclude that there were four in total. The first was an oral representation made on 30 November 2010 by a member of the defendant's staff at Adelaide airport, that certain items of luggage had been taken off flight QF667 from Brisbane to Adelaide (that is that the items had been "bumped") and would be transported on a later flight and then be delivered to Mr Wilkins (Agreed Fact (v)). In the circumstances that existed and given the evidence of Mr Wilkins, which I accept, that the media box did not find its way onto the baggage carousel at Adelaide airport, it was on balance reasonable for him to assume that his media box had been "bumped " onto the next available flight. The defendant in paragraph 15 of its Case Summary concedes that this is so. The second representation was made on 1 December 2010 and was referred to in paragraph 12 of the affidavit of Mr Wilkins sworn 25 January 2013. He there deposes that on the morning of 1 December he spoke with an employee of Qantas Baggage Service. He told the defendant's employee that the media box was still missing and provided the person with details of the relevant baggage tag number. His evidence, which was unchallenged, was that the Qantas staff member said to him words to the effect, "We will try and track down your missing baggage". The third representation made by the defendant to the plaintiff, was also made on 1 December 2010. It was made orally, this time by Ms Morris and was that the defendant would pay for the cost of the hire of a replacement camera until Mr Wilkins camera was located (Agreed Fact (ix)). The fourth representation was made on 3 December 2010 when the defendant via Ms Morris forwarded an email to Mr Wilkins apologizing for any inconvenience that he had been caused and confirming that Qantas were "continuing to search for your camera". The plaintiff argues that this email confirmed for Mr Wilkins his belief that the media box remained in the custody of Qantas (that belief having been formed by the three earlier oral representations), notwithstanding that its precise location remained a mystery. It is the plaintiff's case that the totality of the representations made by the defendant objectively conveyed to Mr Wilkins the meaning that it would cover the plaintiff's hire costs until the missing media box, which remained in its custody and control, was located. The forming of such a belief by Mr Wilkins is, in my view, plainly reasonable in the circumstances, and one is left to ask rhetorically, given the content of the four representations made, what other conclusion Mr Wilkins could possibly have come to.

1. The plaintiff further relies on what is says was the defendant's failure to disclose to Mr Wilkins that the media box had in fact been delivered to Adelaide on 30 November, in circumstances where Qantas knew or ought reasonably to have known that this was the position, and that this failure to disclose amounted to misleading or deceptive conduct, or to conduct likely to mislead or deceive within the meaning of s 52 of the Trade Practices Act. The plaintiff contends that this failure to disclose amounted in effect to a false representation by Qantas that the media box remained in the custody, care and control of Qantas although it was not able to be immediately located.

1. As I comprehend the plaintiff's case it is not advanced on the basis that these representations, viewed in their totality were intentionally or deliberately misleading, but rather that they were negligently or carelessly made and that consequently the plaintiff was misled. It is also contended by the plaintiff that the defendant's failure to disclose the whereabouts of the media box (given that knowledge was in the defendant's possession or was at least reasonably ascertainable) when considered together with the oral and written representations made, amount together in all the circumstances to conduct that is misleading or deceptive or likely to be so.

1. The essence of the defendant's case on the other hand is that the representation made by Ms Morris on 1 December 2010 was neither misleading nor deceptive because at the time that she made it she meant what she said and had the authority to make good on the representation. The defendant submits that the question of whether a statement is misleading or deceptive is to be determined by reference to the state of mind of the maker at the time of the representation being made. Further, the defendant submits that the failure to disclose case must fail as Qantas was not aware and could not have known that the media box had indeed been transported to Adelaide on 30 November 2010. That is, that Qantas could not disclose that which it did not know.

1. I must determine therefore whether I am satisfied on balance that the defendant's conduct as is agreed, or which the evidence allows me to conclude took place, amounts to conduct that was deceptive or misleading or conduct likely to be deceptive or misleading.

1. In Principles of Contract Law (Paterson, Robertson and Duke, 3rd Edition, 2009) the authors set out at paragraph [33.45] a clear and succinct description of the types of conduct that may be misleading or deceptive within the meaning of the legislation. That paragraph is in the following terms:

Conduct is regarded as "misleading" if it has the capacity to lead into or cause error. (Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1998) 79 ALR 83). Error occurs when a person is led to believe things that are not true or correct (Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191). The courts have not attempted to define the words "misleading or deceptive" any further and in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd Lockhart J stated that "there is no need or warrant to search for further words to replace those in the section itself"(at 93). In Demagogue v Ramensky (1992) 110 ALR 608 Black CJ set out the approach to be adopted when determining whether conduct is misleading or deceptive:

"Consistently with regard to the natural meaning of the terms of s 52, the question is whether in the light of all the relevant circumstances constituted by acts, omissions, statements or silence, there has been conduct which is or is likely to be misleading or deceptive. Conduct answering that description may not always involve misrepresentation"

In order to determine whether conduct is misleading or deceptive it is important to pay close attention to the context in which the conduct occurred. As Gibbs CJ noted in Parkdale Custom Built Furniture v Puxu Pty Ltd (at 199):

"The conduct of a defendant must be viewed as a whole. It would be wrong to select some words or act which, alone, would be likely to mislead if those words or acts, when viewed in their context were not capable of misleading".

1. There is no requirement that the misleading or deceptive conduct be intentional or fraudulent. It may be negligent (see for example Coleman v Gordon M Jenkins and Associates [1988] FCA 393, per Einfeld J) or it may be by a completely innocent misrepresentation (see for example Greco v Bendigo Machinery Pty Ltd (1985) ATPR 40-521). Conduct is likely to mislead or deceive if that is a "real or not remote chance or possibility regardless of whether it is less or more than fifty per cent": see Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331 at 346 per Deane J. As the Federal Court observed in Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87:

Section 52(1) is concerned with the effect or likely effect of conduct upon the minds of those by reference to whom the question of whether the conduct is or is likely misleading or deceptive falls to be tested The test is objective and the court must determine the question for itself

1. The defendant's argument focuses mainly upon the representation made by Ms Morris on 1 December 2010 and it contends that such representation merely conveyed a state of mind of the maker (Ms Morris) and that so long as she genuinely and honestly believed what was represented at the time, and it was within her authority to make the representation, then the representation is incapable at law of constituting misleading or deceptive conduct. Putting aside my view that there was more than one representation made by the defendant as outlined above, this aspect is one that has assumed some importance in the proceedings. The plaintiff submits that the defendant's view of the law on this issue is incorrect. It argues that for the defendant to avoid its representation being misleading or deceptive in the circumstances of the present case, such representation needed an "adequate foundation": Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88 per the Court. Where a corporation makes a representation through an employee with authority to make it, expressing the state of mind of the corporation, it conveys the meaning that the maker had an adequate basis for that state of mind. The plaintiff relies on the following extract from Global Sportsman in support of its submission (at 88):

If a corporation is alleged to have contravened s.52 (1) by making a statement of past or present fact, the corporation's state of mind is immaterial unless the statement involved the state of the corporation's mind. Whether or not s.52 (1) is contravened does not depend upon the corporation's intention or its belief concerning the accuracy of such statement, but upon whether the statement in fact contains or conveys a meaning which is false; that is to say whether the statement contains or conveys a misrepresentation. Most commonly, such a statement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate; but a statement which is literally true may contain or convey a meaning which is false.

Many statements, for example, promises, predictions and opinions, do involve the state of mind of the maker of the statement at the time when the statement is made. Precisely the same principles control the operation of s. 52(1) with respect to the making of such statements. A statement which involves the state of mind of the maker ordinarily conveys the meaning (expressly or by implication) that the maker of the statement had a particular state of mind when the statement was made and, commonly at least, that there was basis for that state of mind. If the meaning contained in or conveyed by the statement is false in that or in any other respect, the making of the statement will have contravened s. 52(1) of the Act. Compare Lyons v. Kern Konstructions (Townsville) Pty Ltd (1983) 47 A.L.R. 114

1. The plaintiff's argument simply put is that where it is proven that the promise conveying a state of mind lacked any basis or "adequate foundation", then the representation is capable of constituting misleading or deceptive conduct. It then argues that given the totality of the evidence and particularly the information and knowledge within the defendant's possession at the time of the representations, that in all the circumstances there was no adequate foundation for the representations made in this case, and that accordingly the representations are capable of amounting to misleading or deceptive conduct within the meaning of the Act. In my view, the terms of section 51A of the Act, coupled with the authority of Global Sportsman make this contention by the plaintiff one that is beyond dispute.

1. Much was made both in the parties' case summaries and in their written submissions concerning the question of the defendant's silence or failure to disclose relevant details to the plaintiff as to the whereabouts of its media box. It does not appear controversial that mere silence without more cannot amount to misleading or deceptive conduct, unless the prevailing circumstances give rise to a reasonable expectation that if a relevant fact exists it will be disclosed. However where the misleading conduct is alleged to consist of statements/representations and non-disclosure or silence together, then plainly it is not a case of mere silence (see Townsend v Collova [2005] WASC 4 at [120]). Silence or non-disclosure can be misleading when combined with other factors such as the provision of incomplete information. In Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477, the Full Court of the Federal Court held that the provision of incomplete information will be misleading or deceptive conduct if it creates an erroneous impression because the omission is material. The plaintiff's contention here is that the defendant's silence and failure to disclose information within its possession (being that the media box had in fact been delivered to Adelaide airport) when coupled with the oral representations made by its representatives, does in the circumstances of this case amount to misleading or deceptive conduct or conduct that was likely to mislead or deceive. The failure of the defendant to disclose to the plaintiff information within its possession did, it is argued by the plaintiff, create an erroneous impression in it, being that the defendant would continue to search for his media box, and that until it was found it would cover the costs associated with his obtaining replacement equipment. There is in my view considerable force to this submission.

1. The defendant has pointed to what it describes as "judicial disagreement" as to whether silence must be intentional for it to be misleading or deceptive and argues that in the circumstances here, it could not be so described. The plaintiff strongly disputes this submission and says that CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd [2004] VSCA 232 stands as good authority for the proposition that intention is not a necessary element in the Court's determination of whether the non-disclosure of information was misleading or deceptive. There the Victorian Court of Appeal rejected the submission that intention is a necessary element for silence, where it involves "non-disclosure", to be misleading or deceptive under s 52, as being "wrong in law". Further, the plaintiff has referred me to the decision of Hammerschlag J in Green v AMP Financial Planning Pty Ltd [2008] NSWSC 1164. In that decision His Honour approved of what the Victorian Court of Appeal had said in CCP Australian Airship Ltd (supra) and endorsed the proposition that intention is not a necessary element for the non-disclosure of information to be misleading or deceptive. He said the following (at [143]-[149]).

143. The defendants submitted that conduct which consists of remaining silent cannot constitute misleading or deceptive conduct within the meaning of s 52 as affected by ss 4(2)(a) or (b) and (c) of the TP Act unless the silence was intentional. They put that the plaintiffs' case failed at the outset because it was not established (nor was it suggested) that AMP Capital's failure to tell them of the decision was deliberate.

144. Support for this submission is to be found in a number of first instance decisions including the decisions of Finkelstein J in Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd & Anor [1998] FCA 693; (1998) 155 ALR 714 and Merkel J in Johnson Tiles Pty Ltd & Ors v Esso Australia Ltd & Anor [1999] FCA 477; (1999) ATPR 41-696.

145. The proposition is derived from a construction of ss 4(2)(a) or (b) and (c) of the TP Act which proceeds as follows: ss 4(2)(a) and (b) provide that a reference to engaging in conduct is to be read as a reference to the doing of or the refusing to do any act; s 4(2)(c) provides that a reference to refusing to do an act includes a reference to refraining (otherwise than inadvertently) from doing that act; accordingly, for refraining to be conduct (within the meaning of the TP Act) it must be otherwise than inadvertent, that is, deliberate.

146. The proposition has, however, been expressly rejected in Victoria by the Court of Appeal in CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd [2004] VSCA 232; (2005) ATPR 42-042. Nettle JA said at [34] with respect to it that:

"the misleading and deceptive quality of remaining silent inheres in the non-disclosure of information; not in any refusal to provide it. Consequently, it does not follow from the fact that a failure to act must be intentional in order to be actionable, that silence must be intentional in order to be actionable."

147. I am bound to follow the decision of the Victorian Court of Appeal, as an intermediate appellate Court in another jurisdiction on a matter of common legislation, unless I am convinced that it is plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135]; Tillman v Attorney-General (NSW) [2007] NSWCA 327; (2007) 178 A Crim R 133 at [25], [104].

148. Far from being convinced that the decision is wrong, it seems to me that it is correct.

149. Accordingly, I reject the submission that for silence to be actionable misleading conduct it must be deliberate.

1. I am persuaded that in the present proceedings I am bound to follow Green v AMP Financial Planning Pty Ltd (supra) and I therefore reject the defendant's submission that non-disclosure of information must be deliberate or intentional to be actionable misleading or deceptive conduct under section 52 of the Trade Practices Act.

1. I have finally concluded that the various representations made by the defendant to the plaintiff were negligently or carelessly made. Neither the Qantas staff at Adelaide airport nor Ms Morris intended to deliberately mislead or deceive the plaintiff. The fact is however that the defendant had available to it records that would, if examined, have revealed the true state of affairs, that is that the plaintiff's media box was at all relevant times in Adelaide and had been delivered there on QF667. Even if the staff at the airport could not reasonably have known this on 30 November 2010, there is no basis upon which it could be asserted that Ms Morris could not have been possessed of the information on the 1 or 3 December 2010 being the dates upon which she made the further representations on behalf of the defendant to the plaintiff. As has been earlier observed, it is clear that a negligent and even an innocent representation can amount to deceptive or misleading conduct within the meaning of section 52 of the Trade Practices Act.

1. I have further concluded on balance that the conduct of the defendant when viewed in its totality and in the context of the prevailing circumstances did objectively amount to misleading or deceptive conduct or conduct that was likely to mislead or deceive. The plaintiff was in my view entitled to assume and infer that the media box remained in Qantas care, that they would locate it and in due course deliver it to him, and that in the meantime the cost involved by him in rehiring equipment would be a cost to be borne by Qantas. The plaintiff was further entitled to reasonably assume that Qantas would disclose to it that which its records revealed, being that the media box had reached its destination. Clearly some closer examinations of the defendant's own records would have enabled it to do so. Regrettably, as the cross examination of Ms Morris revealed this did not occur, or if it did, it did not occur to an appropriate standard such that Mr Wilkins was informed. I am satisfied on the evidence that if Mr Wilkins had been properly informed as to the fact that the media box had been delivered to Adelaide on QF667 then he would have formed the view that it had been taken by someone else from the baggage carousel and either stolen or lost. In those circumstances I am satisfied in accordance with his affidavit evidence that he would have contacted ISM and left it to them to determine the steps to be taken regarding a replacement camera and equipment, rather than for the plaintiff to enter into independent hire and purchase contracts at its own cost.

1. This was not a case of mere silence. This was a case of non-disclosure of material facts coupled with the making of positive representations by the defendant to the plaintiff that together created in the plaintiff an erroneous impression as to a state of affairs, being that the defendant would reimburse it the costs involved in his obtaining substitute equipment so that he could undertake the filming task for which he had been engaged. I have concluded that this conduct was misleading and deceptive within the meaning of the Trade Practices Act.

ISSUE 2 - Did the plaintiff suffer any loss or damage as a result of any alleged reliance on the defendant's misleading or deceptive conduct.

1. It is not disputed that the plaintiff entered into a number of hire/purchase contracts for equipment, in reliance to varying degrees (depending on the contract entered) upon the misleading and deceptive conduct of the defendant. There is a real issue between the parties as to the precise nature of the representation by the defendant and the extent of any reliance, and I will return to this issue shortly. Notwithstanding this issue, it is not disputed that in so relying, the plaintiff incurred cost and suffered a financial loss. No issue emerged either in the evidence in chief, during cross-examination or in the parties written submissions that if misleading or deceptive conduct was found that there was not a causal connection between that and the plaintiff's loss. The hire/purchase contracts entered by the plaintiff were as follows;

(i)   On 1 December 2010 with Picture Hire Australia for the hire of a Sony PDW-F800 XDCam HD camera ($400), a sachtler baseplate ($5), a hand microphone ($30) and 4 optical discs ($125.40) making a total of $560 (excluding GST)

(ii)   On 2 December 2010 with Picture Hire Australia for the hire of the same camera referred to above for 5 days ($2000), a sachtler baseplate for 5 days ($25) and a hand microphone for 5 days ($150) making a total of $2175 (excluding GST)

(iii)   On 8 December 2010 with Video Australasia for the hire of a tripod wedge plate for 17 days ($85), a Sony HD XDCAM 7OO camera for 17 days ($11,475), a Sony 2 way battery kit for 17 days ($2,125), a Electrosonic radio mic and XLR cable for 17 days ($3995) and 5 Sony 23GB XDCAM professional discs ($145) making a total of $20,587 (excluding GST). This invoice was later reduced by agreement with Video Australasia to an amount of $15,000 including GST, being comprised of the hire of the subject camera in the sum of $13,491.36 and the purchase of as disc in the sum of $145 making a total of $13,636.36 (excluding GST)

(iv)   On 9 December 2010 with Factory Sound Sales Pty Limited for the purchase of various pieces of audio equipment in the sum of $706.36 (excluding GST)

(v)   On 10 December 2010 with Factory Sound Sales Pty Limited for the purchase of further audio equipment at a cost of $241.82 (excluding GST)

(vi)   On 22 December 2010 with Lemac Sales and Service for the purchase of items of equipment in the sum of $1102.30 (excluding GST).

The grand total of the plaintiff's hire and purchase costs was accordingly in the sum of $18,421.84. This is the approximate sum for which the plaintiff has sued.

ISSUE 3 - The amount of the plaintiff's loss or damage

1. There is a real issue between the parties as to the relevant and compensable quantum of the loss or damage sustained by the plaintiff. The plaintiff argues that the defendant represented that it would cover the cost of replacement camera equipment, not only the cost of hiring a replacement camera. It argues that this is the only reasonable conclusion that I could draw from the evidence, as a camera without the necessary equipment to operate it would be useless. The plaintiff says that an objective observer would have understood the words spoken by Ms Morris to mean that Qantas would cover the costs of replacement camera equipment until the media box was located. The plaintiff relies on the evidence of Ms Morris to the effect that Qantas would cover the plaintiff's hire costs for alternative camera equipment until the camera was located. The defendant points to the evidence of Mr Wilkins where he made it clear that his understanding of what was represented to him was that Qantas would pay only for camera hire. Somewhat unusually the evidence of the plaintiff's witness as to this aspect supports the defendant's contention and the evidence of the defendant's witness supports the plaintiff.

1. I have resolved this issue by reference to the Agreed Facts filed by the parties. Agreed Fact number ix) is clear in its terms and provides:

(ix) On 1 December 2010 Mr Wilkins had a conversation with Fiona Morris (Qantas Executive Relations Manager) on the telephone in which Ms Morris indicated that Qantas would pay the costs of the hire of a replacement camera until his camera was located (my emphasis)

1. Statements of Agreed Facts are provided for in the Local Court of New South Wales Practice Note Civ 1. Pursuant to the Local Court Act 2007, the issue of a Practice Note by the Chief Magistrate has the effect of a statutory rule and accordingly calls for compliance. A Statement of Agreed Facts also allows the court, in my view, to pay regard to its contents without the need for further enquiry. An agreed fact is just that. It is a fact agreed between the parties for the purpose of the litigation, and with a view to limiting the issues that finally call for the court's determination. It is not the court's role to look behind agreed facts and to other evidence that touches upon the subject matter of the agreed fact. The preparation and submission to the court of a Statement of Agreed Facts have a real and significant purpose in the course of litigation, not least of which relate to the overriding objects of the Civil Procedure Act 2005, being to facilitate the just, quick and cheap resolution of the real issues in proceedings. To traverse agreed facts is not in conformity with these objects and does not assist the efficient disposal of the business of the court, the efficient use of available judicial resources and the timely disposal of the proceedings and other proceedings that are before the court. I must pay heed to the agreed facts and not seek to vary, modify or otherwise interpret them particularly where, as is the case here, the agreed fact speaks for itself and is not in any way ambiguous. In my view there is no room for confusion as to the meaning of the Agreed Fact (ix). Further, I have had regard to section 191 of the Evidence Act 1995 that relevantly provides:

191 Agreements as to facts

(1) In this section:

agreed fact means a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed.

(2) In a proceeding:

(a) evidence is not required to prove the existence of an agreed fact, and

(b) evidence may not be adduced to contradict or qualify an agreed fact,

unless the court gives leave.

(3) Subsection (2) does not apply unless the agreed fact:

(a) is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding, or

(b) with the leave of the court, is stated by a party before the court with the agreement of all other parties.

1. While this section deals with questions pertaining to the proof of issues and the admissibility of evidence, and not the use to which such evidence is put once it is before the court, it does provide some guidance and assistance as to the way in which agreed facts are to be treated by a tribunal of fact and I have had regard to it. I note that the terms of the section are clear and provide that an agreed fact that has been reduced to writing is not to be disputed and no evidence may be adduced to contradict or qualify it without leave being granted. The plaintiff made no such application for leave in this case.

1. Accordingly I am satisfied that the conduct of Qantas relied upon by the plaintiff and in respect of which it suffered loss and damage is limited to the hire by the plaintiff of a replacement camera only. The evidence of Mr Wilkins and a consideration of the various invoices that were annexures to his affidavit allow me to comfortably conclude that the actual cost of the camera hire by the plaintiff was in the sum of $13,875. While it is true that the plaintiff entered other hire contracts and purchased other items, those items were not causally linked to any misleading or deceptive representation by the defendant nor are they the subject of any agreement between the parties, and accordingly are not, in my view, compensable in these proceedings.

ISSUE 4 - Whether or not the Civil Aviation (Carriers Liability) Act 1959 excludes the plaintiff's claim under the Trade Practices Act 1974 (Cth) or limits the amount of loss or damage recoverable to approx. $1600.

1. It is the defendant's submission that even if the plaintiff succeeds in its claim, then the amount of any damages are limited by the operation of the Civil Aviation (Carriers Liability) Act 1959 (Cth). This Act gives force of law in Australia to a series of international conventions and protocols commencing with the Warsaw Convention 1929 that govern the liability of carriers for international carriage by air. It is not disputed between the parties that the Act has application to domestic airline travel of the type provided by the defendant to the plaintiff by virtue of Part IV.

1. Part IV imposes strict liability on carriers for damage sustained by reason of the death of a passenger or any personal injury suffered by a passenger as a result of an accident onboard the aircraft or during embarkation or disembarkation (section 28) and for damage sustained in the event of the destruction of or loss of, or injury to, baggage of a passenger, if the occurrence which causes the destruction, loss or injury takes place during the period of the carriage by air (section 29). Clearly it is section 29 that calls for consideration in this case, the registered baggage of the passenger being the subject matter of the litigation. If that section has application then the amount of any liability in the defendant will be limited and is to be calculated by reference to section 31(2).

1. The strict liability imposed by Part IV is in substitution for any other civil liability. In the case of baggage, sections 29(1), (2) and (3) relevantly provide:

(1) Where this Part applies to the carriage of a passenger, the carrier is liable under this Part, and not otherwise, for any damage sustained in the event of the destruction or loss of, or injury to, baggage of the passenger, if the occurrence which causes the destruction, loss or injury takes place during the period of the carriage by air unless the carrier proves that the carrier and the carriers servants and agents took all necessary measures to avoid the destruction, loss or injury or that it was impossible for the carrier or them to take such measures.

(2) For the purposes of the last preceding subsection but subject to the next succeeding subsection, the period of the carriage by air comprises:

(a) in relation to baggage other than registered baggage-the period during which the passenger is on board the aircraft or is in the course of any of the operations of embarking or disembarking; and

(b) in relation to registered baggage-the period during which the baggage is in the charge of the carrier, whether on board the aircraft or elsewhere.

(3) In proceedings under this section in respect of registered baggage, if the carrier proves that the baggage was, within a period of twelve hours after the arrival of the aircraft at the place to which the baggage was to be carried in the aircraft, available for collection by the passenger at a place at which, under the contract, the baggage was to be or could be made available to the passenger, the period of the carriage by air shall not be deemed to include any time after the expiration of that period of twelve hours.

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1. The exclusive nature of the remedies available under the Warsaw Convention, on which Part IV is based, was explained by Lord Hope of Craighead in the House of Lords decision of Sidhu v British Airways [1997] AC 430 at 453C:

The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code, which could be applied by the courts of all the high contracting parties without reference to the rules of their own domestic law. The Convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those areas with which it deals - and the liability of the carrier is one of them - the code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law.

1. The parties are in agreement as to the wide scope of the Act. The disagreement between them is as to the application of the Act to the facts of this case. The defendant relies on what it contends is the exclusive nature of the legislation and says that in construing the provisions in Part IV I must have regard to the structure of the legislation as a whole. It argues that the damage for which the plaintiff sues is damage sustained in the event of the loss of the baggage where the occurrence took place during the period of carriage by air, being the period during which the baggage was in the charge of the carrier. The defendant argues that a plaintiff cannot simply by formulating a claim in terms of some other law (e.g. the Trade Practices Act) avoid the application of the Act, in circumstances where the thrust of the plaintiff's claim is in fact for damages occasioned by the loss of baggage. The defendant argues, that to the extent that the plaintiff says that that the Act does not exclude claims under the Trade Practices Act, then it is wrong in law. It relies on the words of section 29 itself, that the liability of a carrier for a claim in respect of baggage is founded in that section and not otherwise. It further relies on the decision of the High Court in Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251. In paragraph 92 of that decision Callinan J indicated that the Act "displaces any law which might otherwise be applicable". While that case concerned a claim for damages arising out of the death of a passenger in an aircraft accident, it is apparent that Callinan J's remarks have equal relevance and application to the matters that are the subject of these proceedings.

1. Of course the exclusive nature of the Act and the limits upon liability that it imposes is only relevant if the facts of this case trigger the application of section 29. This it appears to me is the primary question that I must determine. If I am satisfied that section 29 is so triggered then I am of the view that the exclusive nature of the Act would limit the defendant's liability in the way it contends for. If I am not so satisfied then the plaintiff would be entitled to recover damages in an amount otherwise assessed by me as appropriate.

1. The plaintiff's argument as to this issue can be reduced to a number of propositions. Firstly it says that its claim does not relate to the destruction, loss or injury to the media box. It is common ground that the media box was found intact and undamaged at the Adelaide Oval on 14 January 2011. Further the plaintiff says that its claim is not based on the media box being lost. The plaintiff submits that this is not in dispute, the defendant's Defence including in paragraph 7(d) "the missing media box was not lost by the defendant as alleged by the plaintiffs agent". The plaintiff argues that as its media box was neither destroyed, lost nor injured that section 29 of the Act is not engaged. This submission, given the evidence and the pleadings, is in my view both simple and compelling and I accept it. The plaintiff's claim does not rely on the destruction, loss or injury to its baggage (the suggestion of loss being merely an aspect of the factual matrix giving rise to the proceedings), but rather on the engagement in misleading and deceptive conduct giving rise to a claim for damages under the Trade Practices Act. My finding in this regard puts an end to the argument concerning section 29, however if I am in error as to this aspect I would still conclude that section 29 was not engaged as it is limited to claims for damage that occur during the period of carriage by air. As the plaintiff has observed in its Submissions in Reply dated 31 May 2013 at paragraph 68;

It is difficult, nay impossible, for the defendant to now submit that the conduct in question occurred during the carriage when in its Defence it admitted that at a time before the conduct complained of occurred and damage was suffered that the media box "....in fact was delivered to the baggage carousel at Adelaide airport on 30 November 2010 in full discharge of the defendants obligations in respect of the carriage..."(paragraph 7(d) of Defence). The defendant has never sought to withdraw that admission.

I also note the contents of paragraph 7(e) of the Defence, which contains the following;

the defendant did not have custody, care or control of the missing media box after delivery to the baggage carousel...

I am entitled to and do conclude that by this paragraph the defendant must logically concede that the period of carriage by air had come to an end. On any view of the evidence the conduct of the defendant giving rise to the plaintiff's claim occurred outside the period that would engage the Act.

1. I am satisfied on the evidence and given the pleadings that the plaintiff's claim arose outside the period of carriage by air by the defendant, so placing it outside the scope and application of the Act.

1. The parties spent some considerable time in their submissions dealing with the issue of the application of the Trade Practices Act to matters where the Civil Aviation (Carriers Liability) Act is relevant. Given my finding that the Act is not engaged on the facts of this case, I am not required to and do not propose to deal further with this aspect.

1. It follows from all of the above that I am satisfied on balance that the plaintiff is entitled to recover damages from the defendant for its misleading and deceptive conduct, that the damages are in the sum of $13,875 to which interest and filing fees are to be added, and further that in the circumstances of this case the Civil Aviation (Carriers Liability) Act does not have application.

1. THE ORDERS OF THE COURT WILL BE AS FOLLOWS:

(i)   Judgment for the plaintiff in the sum of $13,875, plus

(ii) Pre judgment interest pursuant to section 100 of the Civil Procedure Act 2005 from 8 December 2010, plus

(iii)   Filing and service fees, plus

(iv)   I will hear the parties on the question of costs.

Magistrate Christopher O'Brien

Downing Centre Local Court

26 June 2013

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Decision last updated: 13 September 2013