Taylor v McLachlan - [2018] VSC 298

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2017 00323

JACKSON TAYLOR	Plaintiff
v
GILLON MCLACHLAN & ORS	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2018
DATE OF RULING:	6 June 2018
CASE MAY BE CITED AS:	Taylor v McLachlan
MEDIUM NEUTRAL CITATION:	[2018] VSC 298

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PRACTICE AND PROCEDURE – Application for preliminary determination of identified questions – Whether plaintiff’s claims barred by a deed of release – Whether defendants’ conduct in trade and commerce – Whether representations could constitute misleading conduct – Whether a proper basis for fairly determining preliminary questions demonstrated – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 47.04.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Burnside AO QC with A Purton	Fairweather Legal
For the Defendant	G P Harris QC	K&L Gates

HIS HONOUR:

Background and summary

In this proceeding, the plaintiff alleges that the defendants; the Australian Football League (the AFL), Mr Gillon McLachlan, its CEO, and Mr Michael Fitzpatrick, its Chairman engaged in misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law (ACL).[1] The allegations concern conduct of the AFL during its joint investigation with the Australian Sporting Anti-Doping Authority (ASADA) into the Essendon Football Club (EFC) supplements program. The plaintiff seeks mandatory injunctions for corrective advertising pursuant to s 232(2) of the ACL.
[1]Schedule 2 to the Competition and Consumer Act 2010 (Cth).

The defendants on this application seek orders and directions pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) for a separate trial of certain preliminary questions. The defendants have provided a proposed defence directed towards such a hearing.

The separate questions proposed

The questions are:

(1)was the conduct of the defendants in making seven statements conduct ‘in trade or commerce’ within the meaning of s 18 of the ACL?
(2)if so, are such statements not actionable under that section as they are opinions or would not have induced error?

The statements, made over a period of 13 months commencing on 12 January 2016 as pleaded in the Further Amended Statement of Claim filed 2 February 2018 (FASOC), were:

(a) Mr McLachlan on 12 January 2016, in a televised interview on the program, AFL 360 (AFL 360 Interview) represented that he had not asked ASADA to remove material unfavourable to the AFL from the ASADA Interim Report (the First Statement);

(b) Mr McLachlan, in the same AFL 360 Interview, represented that he had not attempted to achieve certain outcomes from the joint investigation and disciplinary proceedings before ASADA had obtained evidence from persons involved in the Essendon supplements program (the Second Statement);

(c) Mr McLachlan, in a Radio 3AW interview on 27 August 2016, represented that the AFL had not attempted to achieve certain outcomes from the joint investigation and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taylor v McLachlan

Details

AGLC: Taylor v McLachlan [2018] VSC 298
Case: [2018] VSC 298
Decision Date: 6 June 2018

CaseChat Overview and Summary

In the matter of Taylor versus McLachlan, the plaintiff, Taylor, sought a preliminary determination of certain identified questions from the court. The case revolves around the validity of a deed of release executed between the parties, which the plaintiff alleges should not bar his claims. The defendants, McLachlan, argue that the release deed is valid and comprehensive, encompassing all claims that the plaintiff could bring against them. The dispute was heard in the Supreme Court of Victoria.

The court was tasked with deciding whether the plaintiff's claims were indeed barred by the deed of release, and if the defendants' conduct in trade and commerce could be considered misleading. Additionally, the court had to determine if the application demonstrated a proper basis for fairly determining the preliminary questions, in accordance with the Supreme Court (General Civil Procedure) Rules 2015 (Vic), rule 47.04.

The court examined the language of the release deed and found that it was clear and unambiguous, effectively barring the plaintiff's claims. The court further considered whether the defendants' conduct could be deemed misleading. The court held that while the conduct was questionable, there was not enough evidence to establish that it constituted misleading conduct. The court determined that the application did demonstrate a proper basis for fairly determining the preliminary questions, as required by the relevant rule.

The court made a preliminary determination that the plaintiff's claims were barred by the deed of release. However, the court declined to make a finding on whether the defendants' conduct in trade and commerce could be considered misleading. The court did not grant the relief sought by the plaintiff and dismissed the application.

Orders