Snyman v Ad-vent Information Services International Ltd

[1991] HCATrans 159

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B3 of 1991

B e t w e e n -

PAMELA SNYMAN

' Applicant

and

AD/VENT INFORMATION SERVICES

INTERNATIONAL LTD

Third Respondent

VOLT AUSTRALIA LTD

Fourth Respondent

AUSTRALIAN TELECOMMUINICATIONS

COMMISSION

Fifth Respondent

Application for special leave

to appeal

BRENNAN J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 27 JUNE 1991, AT 2.26 PM

.1

Copyright in the High Court of Australia

Snyman 1 27/6/91

MR P.C.A. SNYMAN:  May it please Your Honours, I appear on

behalf of the applicant.	(instructed by Hawthorne
Cuppaidge & Badgery)

MS__ S. M. KIEFEL~: May it please the Court, I appear with

my learned	friend, MR P. APPLEGARTH, for the third
and fourth	respondents. (instructed by McNab Tully
& Wilson).

MR E.J. READ: 

May it please the Court, I appear on behalf

of the fifth respondent. (instructed by the
Australian Government Solicitor)

MASON CJ: Yes, Mr Snyman.

MR SNYMAN: As Your Honour pleases. Your Honour, I have

provided copies of the outline, which I have filed

with Your Honours, to my learned friends on Monday
already so that they have had ample notice of all

the matters raised in the application.

Your Honours, there are, in my submission,

several major points of law which seem to be grey

areas as a result of this decision. Some are so

conspicuous, Your Honour, that a Full Court may not

have difficulty in dismissing certain rulings in

this Court but it may present considerable problems

to a trial court. Your Honours, there are

particularly five issues and before I commence, may

I apply for leave, Your Honours, to file an

amendment to the draft application?	I have filed
it with the Registrar.

BRENNAN J:	What are you seeking leave to do?
MR SNYMAN:	I seek leave to amend the draft notice of appeal, Your Honours.
BRENNAN J:	The draft notice of appeal?

MR SNYMAN:	Yes.
BRENNAN J:	Have you given notice to the other parties?
MR SNYMAN:	I have given notice, a long time ago,

Your Honour.

BRENNAN J:	Do you have any objections?
MS KIEFEL:	We have no objection, Your Honour.
MR REID:	No objection, Your Honour.

BRENNAN J: Yes, you have leave to appeal. This is in

accordance with a document headed "Notice of

Snyman 27/6/91

Application to Amend Applicant's Draft Grounds of

Appeal", is that right?

MR SNYMAN: That is correct, Your Honour.

BRENNAN J: Yes, very well, you can have leave to amend that

document.

MR SNYMAN:  As Your Honour pleases. I have prepared an

amended draft notice, if Your Honours would prefer

me to hand that up.

BRENNAN J: Very well, thank you. Now, Mr Snyman, we need

to have identified for us what are the special

leave points in the application.

MR SNYMAN: First, Your Honours, on the trade practices

issues there is the question of section 4(2), the

interpretation of that section. Your Honours will

notice from my outline on page 5 that the

Full Court had found, on pages 66 of the

application book, that:

In the course of carrying on that business those two respondents

the third and fourth -

received and prepared for publication the

Coopers' advertisement.

I submit that that is a primary finding of fact and

if one reads that in conjunction with the

provisions of the Trade· Practices Act - I have

prepared extracts for Your Honours. I have

highlighted the particular section and placed a tag

on for Your Honours' convenience.

BRENNAN J:	What is the special leave point, Mr Snyman?
MR SNYMAN:	Your Honours, that is a finding of conduct and

Their Honours had not found that as conduct. The

point is that if anyone reads the reports of this case - this case has been very widely reported in all the official law reports; the CCHs, the Federal

Law Reports - and if anyone had to read this

judgment and to read this finding that I have just

referred to Your Honours - that the third and

fourth respondents have set in motion a certain

publication. In my submission, that falls

completely within the ambit of the definition of

section 4(2). If this matter is not corrected by

Your Honours, trial courts and other Full Courts

may find themselves confronted with this issue,

that a Full Court had adjudicated this matter and

had found these primary facts and yet had not

Snyman 27/6/91

categorized that as conduct within the Trade

Practices Act.

BRENNAN J: Well, let it be assumed that it is conduct

within the Trade Practices Act.	They received and
prepared for publication the advertisement.	What
follows from that?

MR SNYMAN: There follows then automatically, Your Honours,

coupled with the finding of His Honour

Justice Von Doussa that the material, whilst effective within the provisions of section 52 -

and that, in my submission, mandates a finding of a

contravention of section 52 by the third and fourth
respondents on the basis of this finding. That
then brings the court to the position where the

court will then have to inquire whether the

publisher's defence, which had been raised by the

third and fourth respondents, should be upheld and
that will then need to be inquired into the court and not inquired into that but, in my submission,

it mandates a finding then of a violation under

section 52 and as it stands now, it is - - -

GAUDRON J:  Mr Snyman, was that case, in fact, pleaded

below?

MR SNYMAN:  Your Honours, that has not, in fact, been

pleaded below. That is a new point which, I must

confess, had eluded everyone of us including, with

respect it seems, the courts below. I have

submitted in my outline that I may raise new points

as long as there are no disputes of fact involved.

I have authorities of this honourable Court.

BRENNAN J:  Why should we grant special leave to consider a

point which has not been raised by the court below

and on which this Court has not had the advantage,

or would not have the advantage, of the considered

opinion of the Full Federal Court?

MR SNYMAN:  Your Honours, on that particular issue, if

Your Honours are not disposed to grant leave on

this issue, then the matter should be referred to

the Full Court for consideration on that issue.	It
is a matter of vital importance, Your Honour. It
it will cause a considerable injustice to the applicant if such a flagrant omission, as eluded
everyone - I failed to address the issue. It was

only when I prepared these papers that the
significance of it dawned on me and it may well be

that that is the same position with the courts

below. Your Honours, this Court has held that if

there is no question of debate of issues of

fact - like, and this is a formal finding of the

court - then a court may allow new points to be

raised.

Snyman 4 27/6/91

There are two points that I raise and it falls

very much in line with the same one. The next one

is, that the third and fourth respondents have

formally admitted that they had set in motion - it

falls very much in line with the same argument that

they have set in motion, caused the publication of

this impugned advertisement which was deceptive.

That point only becomes an academic point if

Your Honours do not hold to the first point in

itself. The finding of the Full Court is, in fact,

a primary finding of conduct within the provisions

of section 4(2) of the Trade Practices Act.

GAUDRON J:  Mr Snyrnan, this is not simply a case of raising

a matter because it is available on the law.	It
was not pleaded.	The pleadings determine the

issues to be decided in a case.

MR SNYMAN:  Your Honour, it has not been pleaded

specifically that section 4(2) had been in breach,

but it had been pleaded in the pleadings that they

had set in motion a deceptive advertisement as far

as a particular provision of the law is concerned.

That was not pleaded as such as section 4(2) but

that can be read within - - -

GAUDRON J:  It was pleaded on the basis that it allowed and

assisted the first and second respondents to

mislead and deceive, not on the basis that the

respondents left, in these proceedings, themselves

misled and deceived.

MR SNYMAN: With respect, Your Honour, the pleading is a

very broad one, Your Honours. It virtually impugns

every activity of the third and fourth respondents, both by virtue of the provisions of section 84, but also by virtue of their assisting in the
publication of this, assisting the first and second

respondents.

Your Honours, this is, in my submission - the point has not been taken below. It is a new point	and, I submit, that on the basis of authorities of
this Court - if I may refer to the authorities on
new points on appeal that this Court has authority
to grant leave to raise new points. The leading
case is the old case of Connecticut Fire Insurance
Co- v Kavanagh.

BRENNAN J:  I think we are familiar with the general

principles.

MR SNYMAN:  Yes, that is why I have not referred

Your Honours to them.

BRENNAN J: But the problem that you face is that this is an

application for special leave. You are putting at

Snyrnan 27/6/91

the forefront of your case the point that it has
not been raised in the pleadings, not relied on in

the court below, not considered by the courts

below, but because it is thought of now, it is

raised and advanced as the ground for special

leave. This Court is not, as it were, a longstop

behind a wicket-keeper. You have had, as it were,

your day at the crease and you chose not to take

it. Why then, should special leave be granted?

MR SNYMAN:  I submit, Your Honour, that special leave should

be granted for the very reason that this will

create an uncertainty in the law as judgment. It

is a widely reported judgment. Anyone working in

the areas of trade practices law will be reading
these cases. It will be cited as matters dealing
with conduct and if any lawyer reads this finding

of the Full Court of - they find that they have set

in motion this particular advertisement and there

is a finding of the trial justice that this

particular impugned advertisement is deceptive

within the provisions of the Act, then there will

be confusion.

BRENNAN J:	No lawyer reading this case could come to the conclusion that the point that you wish now to
raise has been concluded adversely to the point.
It just was not dealt with.
MR SNYMAN:	Your Honour, with respect, it will place trial

justices in a particular dilemma when adjudicating

matters of trade practices law. If counsel can

argue that here is a reported case where the Court

found these facts, it had found that it is a

deceptive conduct, how is it to be interpreted?

TOOHEY J:  Mr Snyman, if the Court deals with the matter on

a particular footing and does not address its

attention to some question that might have arisen,

how is the case authority in any respect for the

point that has not been considered?	I mean, what
you really appear to be saying is that somebody

else might launch litigation on a like footing to

the present applicant and encounter difficulties by

reason of adopting that course. Well, that may be.

MR SNYMAN:  I submit it will cause confusion in the

interpretation of the provisions of section 4(2) of

the Act.

Your Honours, that is the one issue of the

trade practices matters. Then the next point of

the applicant is the question of the principles of

vicarious liability. That is on page 8. This has

been fully pleaded, the question of vicarious

liability. Their Honours had found, on the

question of law on vicarious liability, that the

Snyman 6 27/6/91

first and second respondents can, as it were, wear

two hats when conducting themselves in their

employment, when doing precisely the things that

they were employed to do.

I have crystallized the issue on page 9,

paragraph (c). The new novel issue raised in the

case is whether in law an employee could be acting on both sides of the "metaphorical counter" - that

is at page 72 of the application book. In other

words, whether the law of vicarious liability

permitted a situation where an employee acting

within the course and scope of employment and doing

precisely what he or she was employed to do could,

at the place of employment, be permitted to plan

and set in motion a deception and commit the tort

of passing off in a situation:

In one case the acts were done by the Coopers on the customer's side of the metaphorical

in
counter, the other case on Directory service to the customer and on behalf of the
employer, Directory Services -

without subjecting that employer to vicarious

liability.

Now, my submissions, as will appear from my

outline, Your Honours, is that this ruling of the

Full Court goes against all the decided against

trite law which have been established over many,

many years - more than 100 years - that, if a tort

is committed by an employee acting within the

course of his or her employment, even whether that

employee acted for his own benefit, that will still

subject the employer to liability. My submission

is here, in this case, the employer benefitted to

the extent of some $23,000 by advertising fees and

so the Act was really for the benefit of the

employee and for his employer. But the point I

make, Your Honours, is that this decision flies in

the face of established law over many years.

Their Honours cite the case of Kooragang which

came before the Privy Council. Now, with respect,

Your Honours, that citation does not support, in my

submission, the proposition advanced by the

Full Court. The proposition contained in

Kooragang's case is that the employees were
strictly forbidden to do the acts in which they

engaged in and in that case the Privy Council found

that there was no benefit, or fees, accruing to the

employer at all. It was on that basis that the

Privy Council deviated from all the old cases of

Lloyd v Grace and established principles of law

and I submit that this Kooragang case does not

Snyman 27/6/91

stand for the support of this principle and that

allowing this matter to stand, as it is, will also

cause considerable confusion amongst the legal

fraternity.

This principle of law - I have not cited any

authorities to Your Honours - of vicarious
liability is also, I respectfully submit, trite law

in a common law in the United States. If the

matter is allowed to proceed on appeal, I will be

citing authorities in that respect, but I submit,

as it stands, this is a finding by the Full Court

which flies in the face of established legal

principle.

Another point which may cause confusion,

as I have submitted on page 10, is the Full Court's

citation of the case Darling Island Stevedoring Co

v Long. Although the Full Court did not say whether

they approved of it or disapproved of it, I notice

from the law reports and the headnotes that most of

them cite this case as having been applied. My

submission is the Darling Island case stands for a

different principle altogether and it is simply

whether a duty of care accrued to a particular

individual.

If Your Honours will permit me, there is one

matter which I omitted to deal with and that is on

page 7. That is whether the conduct of

Miranda Fox - who was an employee of the third and

fourth respondents and who had signed the

contracts, who had prepared the

advertisements - whether her conduct and her
actions could be categorized as conduct within the

provisions of section 4(2) and whether the

imputations under section 84(2) can be invoked.

I have attached to the main application an

extract of evidence dealing with Miranda Fox's

activities. That particular extract was handed up

to the Full Court without any objection from the
opposition.	I have, in fact, sent copies to my

instructing solicitors and I have sent copies of

this speech - summary of evidence - to the

Registrar - I do not know whether they are before

Your Honours. It is a brief summary of evidence on

section 84, Imputations.

BRENNAN J: Yes.

MR SNYMAN:	Your Honours, it is admitted that all these actions of Miranda Fox, who was their sales
representative, constitute clearly conduct and
Their Honours have referred to the activities of
Miranda Fox, or the pleading as such, as referring
Snyman	27/6/91

only to the state of mind with which I respectfully

take issue.

TOOHEY J:  Can you show us, please, where the Full Court

dealt with Miranda Fox?

MR SNYMAN:  Yes, Your Honour. Page 75 of the application

book, it is the middle paragraph, line 25:

It was submitted on behalf of the appellant -

I had transferred to the Registrar, through the solicitors, some extracts of the pleadings to which

I intended to refer. I think that is exhibit B.

At page Bl2, paragraph 6, the pleading reads -

yes, unfortunately, there has been an omission

there:

The Third and Fourth Respondents were at

all material times by one Miranda Fox -

the word "represented" was accidentally omitted

here but it would seem - - -

TOOHEY J: What the Full Court said about that, I think, was

that all that does is allege a state of mind on the

part of Miranda Fox and, in one respect, a failure

to act, but that essentially it was the conduct of

the Coopers that was said to give rise to vicarious

liability or liability under section 84 of the

Trade Practices Act.

MR SNYMAN: That is correct, Your. Honour, but also it was

pleaded, I submit, that the third and fourth

respondents were, at all material times,

represented by Miranda Fox and she was the person

who had set in motion the contracts and her

activities appear from the exhibit, which I have

handed - the summary on section 84 imputations.

She was very much involved in the preparation of

the contract, the setting it in motion - - -

TOOHEY J: She may have been, but what I am drawing your

attention to is that the Full Court said of that

aspect that all that was alleged against here was a
state of mind and in one case, a failure to act,
but that the case sought against the other
respondents, either at common law or by virtue of
the Trade Practices Act, derived from the

activities of the Coopers, as the case was pleaded.

MR SNYMAN:  The case was pleaded for the Coopers but, I

respectfully submit, for Miranda Fox as well, as

will appear from paragraph 6. This statement, this

pleading that:

Snyman 9 27/6/91

The Third and Fourth Respondents were at all

material times -

represented - I read here "unrepresented" because

that is the way it would seem that Their Honours

treated the matter -

by one Miranda Fox, a person whom the

Applicant cannot identify who signed each of the relevant advertising contracts on behalf of them.

Just the signing of the contracts, Your Honour, is

an act of conduct.

BRENNAN J:	Where does that lead you?
MR SNYMAN:	Such conduct, under section 4(2) of the Trade

Practices Act, is conduct which would subject the third and fourth respondents to liability under the imputations of section 84 as being a servant or agent or anyone in the employ of the third and

fourth respondents. Any servant in their employee

conducting any act on their behalf will, for the

purposes of section 85, be deemed to be the

employee, to have acted for the -

BRENNAN J:  Be it so, where does that make out your case?

How does that make out your case?

MR SNYMAN:  Your Honours, if her conduct was conduct within

section 4(2), in which she placed and organized the

placement of a defective advertisement which had
been found to be defective under sertion 52 of the

Act, then it should have become man...:atory for the

trial court to have examined the publisher's

defence.

BRENNAN J:  Then we are back to that first question, are we

not? That is the one that was never raised.

MR SNYMAN:  The publisher's defence was pleaded at all times and it has been fully replied to, Your Honours.

BRENNAN J: The argument -

MR SNYMAN:  No, the matter was not resolved because it was

not necessary to resolve it in view of the findings
that it was not conduct within the provisions of
the Act. Once the court had found - or any court
finds - that it was conduct within the provisions

of the Act, then it became, in my submission,

mandatory to examine the defendant's publisher's

defence because that is the only way in which they

came to escape liability, and even on the facts

before Your Honours, they could not even possibly

escape liability under section 85 - the publisher's

Snyman 10 27/6/91

defence - on account of the knowledge of

Miranda Fox and other employees of this particular

advertisement.

TOOHEY J: Section 4(2) is not a source of liability, is it,

under the Act?

MR SNYMAN:  No, Your Honour. It is simply an

interpretation, a guide.

TOOHEY J: Well, unless you can bring yourself within

section 84, or whichever other section or cause of

action was relied upon, section 4(2) does not

advance the matter any further, does it, except it

tells you that when the Act speaks of conduct,

conduct is to be understood as doing certain things

or not doing certain things?

MR SNYMAN:  Your Honours, I have referred to certain cases

in my outline in which this Court had briefly dealt

with the interpretation of section 4(2) in the

light of what sort of conduct will be constituted

to be conduct which may lead to liability under

section 52, and some other cases of trial courts

which will be of some persuasive power. I submit

that 4(2) is such a clear guide as to what conduct

should be construed as being conduct within the Act

which will subject someone to liability.	Now,
anyone involved in any of these activities:

a reference to engaging in conduct shall be

read as a reference to doing or refusing to do

any act, including the making of, or the

giving effect to a provision of -

a contract or arrangement - Fox has signed the

contract - she has prepared the contracts. She set

in motion the publication, made the arrangement.

It all falls smack within the ambit of

section 4(2), that conduct.

TOOHEY J:

It may well do so, but all that tells you is that

what was done answers the description of conduct.

It does not create a cause of action. The cause of

action is to be found elsewhere and, in that

respect, the Full Court has held very firmly

against the applicant.

MR SNYMAN: With respect, the Full Court, I do not think,

had addressed that issue, Your Honour, because they

had simply ruled that there had been no conduct.

Once the Full Court - - -

BRENNAN J:	Where is the finding that there was no conduct?
MR SNYMAN:	It is the passage I have referred Your Honours

to where the Full Court - I think it was

Snyrnan 11 27/6/91

page 75 - had said that it had not been pleaded by

Miranda Fox that she had been engaged in conduct,

only her mental state had been pleaded, and it is a

matter which, I have submitted, I take issue with

and, I submit that the acts pleaded here go beyond

mental states - preparing a contract, setting it in

motion and arrangement. That is conduct, in my

submission - - -

BRENNAN J:	Where is the finding that you have referred to?
MR SNYMAN:	Page 75, Your Honour, the passage we have

referred to earlier - the middle of the page.

BRENNAN J: Well, I read what Their Honours are saying

there - what they are saying is that the case that

was made against the third and fourth respondents

was a case which made them liable by reason of the

conduct of the Coopers and that the case that was

made against the third and fourth respondents was

not put on the footing that the third and fourth

respondents were vicariously liable, whether under

section 84, or otherwise, for the conduct of any

other person. Because if they had thought that it

was being put on some other basis, namely that the

third and fourth respondents were liable because of

what was done by others - that is, persons other

than Coopers - then your first question would have

been addressed.

MR SNYMAN: It will be addressed, yes, Your Honour.

BRENNAN J:  I am saying it would have been addressed. It

would have been the point at issue because the

point at issue would have been, "Here you have

conduct attributable to the third and fourth

respondents in publishing innocently a misleading

advertisement". That would have been the problem

and the court said that is in the way in which the

case was put.

MR SNYMAN:

Your Honour, that is the one footing on which

the case was put, with respect. That is the

vicarious liability principle, but I submit, that

the case is also put on the basis of the pleading

to which I have alluded to, that Miranda Fox, in

setting in motion the contracts, had engaged in

conduct as envisaged in section 4(2) and that

Miranda Fox, as a fully authorized employee, an

agent of the third and fourth respondents, would

subject them to liability by virtue of the

provisions of section 84.

BRENNAN J:  Mr Snyman, before you get to the question of

whether the innocent publication of a misleading

advertisement can attract liability under the Act,

you need to have the necessary findings of fact

Snyman 12 27/6/91

that the respondents were, in fact, liable for that

publication either through section 84 or otherwise, and having regard to the way in which the court put

it, at page 75, it seems that the court did not

appreciate the basis on which this argument was

being mounted. They thought it was being mounted

on the basis of a vicarious liability for the

conduct of the Coopers. Now, the court may have

misunderstood it, or it may have been that the way

in which the case was argued led the court to

misunderstand it, but whichever way one puts it, in

the absence of a finding of the relevant facts,

should this Court now regard this case as a

suitable one for raising that question of law?

MR SNYMAN: 

It is an issue which falls very much to be

concerned with the main issue which Your Honours do
not seem to be with me on the new point which I

raised as to the formal admissions of conduct. I

submit that this judgment and these sort of

findings of statement of mine could only lead to

confusion. If one reads where the court had

referred to the pleading, and if anyone reads that
pleading of Miranda Fox having engaged in setting
up the contract, as not being conduct but of being

mental states, I fail to see how that could

possibly justify a mental state finding. I

respectfully submit that this is a matter which

should be clarified by Your Honours.

BRENNAN J: 

Have you any other points in support of the

application, Mr Snyrnan?

MR SNYMAN:  Yes, Your Honour. As I say, there are several

major points of interest and of importance in this

case. There is the question of the tort of passing

off. Their Honours had upheld the applicant's

appeal that the first and second respondents were

guilty of the tort of passing off and that the

goodwill had been damaged, but Their Honours did

not proceed to assess any goodwill or any harm to

the goodwill. I submit that it is a matter of law

that once passing off is found, then it becomes

incumbent to assess the damages.	I have referred
Your Honours to the old English case of Draper.	It
is a case which -

BRENNAN J: .. Mr Snyrnan, the question of passing off arises

against the third, fourth and fifth respondents

only on a footing that there is some vicarious

liability, does it not?

MR SNYMAN: Precisely, Your Honour, yes. That is correct.

BRENNAN J:  Now, if you do not succeed on the vicarious

liability argument, these points do not arise.

Snyrnan 13 27/6/91

MR SNYMAN:	They fall away, yes, Your Honour.
BRENNAN J:	Have you anything to add on the vicarious

liability arguments?

MR SNYMAN:  I have nothing to add on vicarious liability,

simply except to reiterate that the judgment as it

stands flies in the face of all established

principles of law.

BRENNAN J:  Have you anything to add to your application in

respect of the relief which you seek against the respondents who are presently represented at the bar table?

MR SNYMAN:  Yes, Your Honour. I have not yet touched upon

the fifth respondent's matter - Telecom.

Your Honours, in this matter, I have raised several

issues on page 13 of my outline - it starts at

page 13 - and may I just correct some error that I

have made in my outline. On pages 15 and 17, I

have referred to an injunction that was granted by

Justice Pincus. I stand corrected, Your Honour.

It is not an injunction, it was a consent order, if

I may just correct that.

BRENNAN J:  Mr Snyman, I do not wish to interrupt you, but

we are sitting here to deal with special leave

applications. We need to be apprised of what the

special leave points are and the way in which they

are argued, so if you could give us your argument

on the special leave point that you wish to agitate

against the fifth respondent.

MR SNYMAN:  Your Honour, the.special leave point against the

fifth respondent is really on a question of - the

trial court misapprehended substantial facts when

it made the order as regards the costs. I have set

it out in detail in my outline to Your Honours.

The situation was that this matter came before

Justice Pincus on 15 September 1987 when an

injunction was sought but a consent order was made

and a great debate ensued regarding the severance
of this telephone number or the addition of a tape

recording to deviate the calls coming to a

particular telephone number. So Telecom was

involved. Their Honours held that Telecom was only

joined as an outside party. I make the point that

that is, with respect to Their Honours, a

misapprehension of the fact because Telecom was

joined, as appears from the pleadings that I have

referred to here, to disconnect a certain telephone

number so and so, or alternatively, to attach to

that telephone number a certain tape recording.

Snyman 14 27/6/91

BRENNAN J:  Mr Snyman, is there a question of special leave

importance in this?

MR SNYMAN:  Yes, Your Honour.

BRENNAN J: What is it?

MR SNYMAN:  It is that the discretion of the court may be

interfered with if there is manifestly substantial

misapprehension of fact.

BRENNAN J: What is the special leave point in that?

MR SNYMAN:	Your Honours, Telecom had interfered with the course of a matter which was before the court, with
the subject-matter.  They had terminated with -
while this matter was sub judice - this issue of the telephone - Telecom had, on their own, without any approval of the court, transferred the
telephone to another trader who took over the first
and second respondent's business while this matter was sub judice. They interfered with the subject-matter which was before the court and, I
submit, on the authorities which I have referred to
in my outline, Your Honours, it is a question
which, I would submit, borders on contempt of
court.

TOOHEY J: But, as expressed in the judgment and in all the

papers, the only issue that touches Telecom is an

issue of costs, is it?

MR SNYMAN:  Yes, Your Honour, but that issue is also

interlinked with the outcome against the third and

fourth respondents ..

TOOHEY J: Yes, but as a special leave point, you are asking

us to take this case on board with a view to

reviewing an order made by the court below on a

question of costs as against a particular party to

the litigation, is that a fair assessment?

MR SNYMAN: That is correct, Your Honour, but if I may just

a further point that it is difficult to resolve the

other issues without dealing with this issue, they

are so interlinked.

I have also - I do not know whether

Your Honour would be prepared to hear me on

this - asked that the Full Court's judgment on a

question of damages be reviewed in as far as the

Full Court had written one paragraph as regards the

damages in the case in which it simply affirmed the

findings of Justice Von Doussa. Whereas very

substantial submissions had been made as to why

that order should not have been made, how the

damages should have been assessed. There are

Snyman 15 27/6/91

substantial misapprehensions of fact by His Honour

when he assessed the damages.

TOOHEY J: Just a moment, Mr Snyman. The question of

damages, as I understand it, does not arise unless,

and until, liability is sheeted home to one of the

present respondents, other than the fifth

respondent.

MR SNYMAN: That is precisely so, Your Honour.

TOOHEY J:  So that unless you get special leave in respect

of those matters, the question does not arise.

MR SNYMAN: Precisely. It all falls to be decided on the

main issues of vicarious liability and on the

conduct and if those issues fall away, then

everything falls away.

BRENNAN J:  Have you anything further to add on this

principle?

MR SNYMAN:  I have nothing further to add, thank you,

Your Honour.

BRENNAN J:  We need not trouble you, Ms Kiefel, nor you,

Mr Reid.

The question which the applicant advances as

the chief ground for the grant of special leave was not raised on the pleadings or in the courts below.

There is no reason why special leave should be

granted to allow such a question to be raised for

the first time in this Court.

The subsidiary ground on which the application

is based is that there was error in the conclusion

that the third and fourth respondents were not

vicariously liable as employers of the first and

second respondents in respect of the misleading

conduct engaged in by the first and second

respondents. There is no reason to doubt the

correctness of the conclusion of the Full Court

that there was no vicarious liability either at

common law or by reason of section 84(2) of the

Trade Practices Act, 1974 (Commonwealth).

Further grounds are mentioned in the draft

notice of appeal but they all depend on the issues
already mentioned. There is no special leave point

which concerns the fifth respondent.

The case is not one in which special leave

should be granted. Accordingly, special leave is

refused.

MS KIEFEL:  Your Honours, we ask for costs.

Snyman 16 27/6/91

MR REID:	I also ask for costs, Your Honour.
BRENNAN J:	Have you anything to say about costs, Mr Snyman?
MR SNYMAN:	Your Honour, I cannot dispute that an order for

costs should be made, if the Court so holds.

BRENNAN J: It will be refused, with costs.

AT 3.17 PM THE MATTER WAS ADJOURNED SINE DIE

Snyman 17 27/6/91