Tyson & Anor v Brisbane Market Freight Brokers Pty Ltd

[1993] HCATrans 181

..

.

• 'I

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry No B4 of 1993

Brisbane

B e t w e e n -

ALLAN GEORGE TYSON

Appellant

and

BRISBANE MARKET FREIGHT

BROKERS PTY LTD

Respondent

BRENNAN ACJ

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

Tyson(2) 18 30/6/93

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 30 JUNE 1993, AT 10.09 AM

(Continued from 29/6/93)

Copyright in the High Court of Australia

BRENNAN ACJ: Yes, Mr Myers.

MR MYERS:  Your Honours, yesterday I said that the appellant

relied upon section 52 of the Trade Practices Act

as a defence. That assertion was technically

incorrect, as Your Honours may well have seen from

the record, in that in the appellant's pleading,
the appellant pleaded at paragraph 16, and

Your Honours will see the pleading at page 23 of

the record, that relief was in fact sought by way

of counter-claim.

In our respectful submission, that is

technically the correct way that it had to be done.

I was using it loosely - - -

McHUGH J: Well, I do not think it is the correct way that

it had to be done. It was a plea to avoid circuity

of action and the nature of such a plea was dealt with by Mr Justice Sugerman in Shedlezki v Bronte

Bakery, 69 SR(NSW), in the New South Wales Court of

Appeal.	The relevant passage is at page 214 where
he says:

Such a plea is a plea of confession and

avoidance. It admits the plaintiff's cause of

action and sets up in answer to it a claim to

an exactly equal measure of damages founded on

facts of which the plaintiff's success on his

cause of action is one. In this respect it

differs from the ordinary plea of

cross-action, success or failure in which is

independent of the plaintiff's success or

failure in his action.

That is your case, is it not? Your case

depends upon the success of the plaintiff's cause

of action.	You take a fact in his case as
essential to your case and you claiming by way of

defence a right to an exact amount of damages that

the plaintiff claims.

MR MYERS:  Yes. Your Honour, with respect, it can be looked

at in that way and that perhaps is the claim that

is made pursuant to section 82, but section 87 does

not have to rely upon section 82, and it is my

submission that that is where the distinction lies;

that one can simply, as was done in this case,

plead a counter-claim and seek the relief pursuant

to the provisions of section 87, without relying

upon section 82, which, with respect, would be -
the appropriate course would be that to which

Your Honour refers, if one was relying upon the

damages claim arising under section 82.

Tyson(2) 19 30/6/93

But the authorities seem to establish that

section 87, although an action in itself, cannot be

grounded on section 87; it can be used in the way

it was used in this case. But, Your Honours,

ultimately that was never an issue.

Your Honours, what we have done - and perhaps

this is the best way to do it and the only way that

we can reach consensus. Our learned friends have

prepared a document which has been entitled

"Respondent's Conduct of Trial" and I am happy for

that to go before Your Honours. Our learned

friends have prepared a number of copies, if that

could be handed up up now.

Your Honours, I think it is correct to say

that there is no real disagreement in those terms,

but if I could address the document so that

Your Honours would be well aware of the issues that were before His Honour, the trial judge. Would it be convenient if I went through the documents?

BRENNAN ACJ: Yes, it would, Mr Myers.

MR MYERS:  Your Honours, as far as paragraph 1 is concerned,

that is certainly so. It was originally - - -

TOOHEY J:	Do you mean as a matter of pleading, Mr Myers?
MR MYERS:	Yes.  As a matter of pleading and, Your Honour,

perhaps I should take you to paragraph 4

immediately because you will see that the

respondent says that it resiled from paragraph 1.
Your Honours will see from page 8 of the record the way in which the plaintiff did resile.

page 80, line 10:

It appears in His Honour's reasons, that is,

The plaintiff in its address abandoned any

reliance on this document.

That was exhibit 3. Now, it is a little difficult

to know just what that means. Certainly the trial

had been conducted completely on the basis that the

plaintiff, at all times, was maintaining only a

written contract and a written contract was entered

into on 17 October, 1986. All of the evidence was given on that basis and the appellant addressed on

that basis.

There was overwhelming evidence that Mr Tyson had never received that document prior to 1988, so

that the plaintiff, the respondent, in the course

of his address, abandoned reliance upon that

document. Now, it is a little difficult to know

Tyson(2) 20 30/6/93

just where that left the pleadings because the

pleadings, as Your Honours have seen, alleged -

that is the statement of claim alleged in

paragraph 2, an agreement.

His Honour had to find an agreement because

the claim was one for damages for breach of a

contract of bailment. Really, the plaintiff, the

respondent in this case, ends up in much the same

position as the appellant. That is to say, he had

to establish a contract also to succeed with his

claim for damages for breach of contract - - -

TOOHEY J: But, your answer to my question was that as a

matter of pleading the plaintiff was contending for

a date of contract being 17 October but does that

gate appear in the pleading?

MR MYERS:  Yes, Your Honour, that was date - in this way,

that was the date to which - - -

TOOHEY J: Well, could you just take us to the paragraph of

the statement of claim, or particulars?

MR MYERS: It is the particulars. Your Honours, one really

has to start at page 4 of the record, paragraph 2:

By an agreement entered into between

the -

parties with no allegation of date, and then the
next step in the chain is really page 9 of the

record. This is the request for further and better

particulars:

As to the agreement referred to in

paragraph 2 ...•. whether the agreement was oral

or partly oral or written or partly written;

if the agreement was oral -

et cetera, the date of convers.ations, if it was
written or partly written.	On to page 10:

what was the date of execution of the

agreement -

et cetera.

The response to that request appears at

page 12, and Your Honours will see in

subparagraph (a) that:

The agreement was written.

There was no suggestion that it was partly oral or

in any other form and it was constituted, as

Your Honours will see in paragraph (i), by:

Tyson(2) 21 30/6/93

A document entitled "An Important

Introduction" and a document entitled

"Brisbane Market Freight Brokers

Sub-Contractors Manual ..... undercover of a

letter from the Plaintiff dated 16 October

1986 - - -

TOOHEY J: So, 17 October is what, the date when the letter

might have been expected to reach your client?

MR MYERS: Yes, and that is alleged, Your Honour. I took

Your Honours to that yesterday. That really

emerges from page 25, the reply and answer. It

seems they have used the "in due course of post"

contention and alleged that the contract was then

formed on the 17 October, 1986 when we received the

documents.

BRENNAN ACJ: What relevance is this? This was in the

plaintiff's statement of claim, claiming damages

for breach of contract.

MR MYERS:  Yes.

BRENNAN ACJ: It failed to establish that contract.

MR MYERS:  Yes. There is a specific finding by His Honour

that -

BRENNAN ACJ: Very well, and if there was an award of

damages it must have been on some other cause of

action?

MR MYERS:  No. No, Your Honour. In our submission, what

follows from that is our principal contention, that

nobody was interested. The trial was not conducted

on the basis that the date of the contract

mattered.

BRENNAN ACJ: Well, that might be so. If that is so, the

date of the contract did not matter, why did it not

matter? That must be because the cause of action

was going to be in negligence or for some other

reason.

MR MYERS:  No. No, it did not matter because the parties

were content to effectively leave, quite apart from

the pleadings - and this is Gould's case which is

referred to on our list of authorities.

Essentially, as the respondent says in paragraph 6

of this document that I have handed up:

The ..... submissions at trial went

principally to whether the representation was

made -

Tyson(2) 22 30/6/93

and apart from whether the representation was

made P

then went to whether the representation could

be misleading or deceptive.

And that was the issue - - -

BRENNAN ACJ: Could I just have this clearly from your

understanding of it all events.	The plaintiff
recovered a judgment for damages.

MR MYERS:  Yes.

BRENNAN ACJ: For what cause of action?

MR MYERS:· For breach of contract of bailment and,

Your Honour, that appears at page 76 of the record.

So it was essential that there be a contract and

obviously that it had a date.

BRENNAN ACJ: Breach of contract of bailment.

MR MYERS:  Yes. Page 76, line 36, the opening words of

His Honour Judge Boyce's judgment:

The plaintiff sues the first defendant

for damages for breach of a contract of

bailment.

Your Honours will see - - -

BRENNAN ACJ:  Now just pausing there for a moment. The

contract which was found to have been breached was

not the contract in writing of 17 October?

MR MYERS:  That has to be so because of His Honour's finding

at page 79.

BRENNAN ACJ: 

What contract was it?

MR MYERS: 

Your Honour, it obviously had to be the oral

contract for which we were contending and the oral
contract for which we were contending was - I say

obviously - that that was transacted over the

course of the two days, 10 and 11 October, 1986.

BRENNAN ACJ: 

So it was the contract which was to be found

in the transactions between the parties on those

two days?

MR MYERS:  Yes. Now, Your Honours, could I give you some

references in relation to that so that there can be
no, with respect, doubt about it. Page 79, line 55

is His Honour's finding of fact against the

respondent:

Tyson(2) 23 30/6/93

The document was never signed by the

first defendant.

This is dealing with exhibit 3.

I am not satisfied that it ever had any contractual effect as between the parties.

There was no evidence contradicting the evidence of Mr Tyson on Exhibit 3. That

document was not brought to the attention of

Mr Tyson until much later, some time in 1988.

The plaintiff in its address abandoned any

reliance on this document.

Now, whether that leads to an abandonment of the further and better particulars, I must say I am not in a position to assist the Court because the date of contract was never an issue.

Now, the contract for which the plaintiff

contended: Your Honours really have to go:

TOOHEY J: Just before you leave that: I take it then that from the then plaintiff's point of view, the date did not matter because it had an admission of

negligence on the part of the defendants?

MR MYERS:  That would not have been sufficient to succeed on

an action for breach of contract which, as

His Honour says, the action was.

Your Honours, let me say that the writ of

summons that Your Honours will see at page 2 - the

endorsement is at page 2 of the record - framed the

prayer for relief in the alternative and it is the

third alternative, that is, breach of contract of

bailment that His Honour proceeds - - -

TOOHEY J: Yes, I understand that. All I was suggesting to

you was there being an admission of negligence on

the part of the defendants and the cause of action

being for breach of contract, the trial judge,
apparently and understandably, did not think it
necessary from the plaintiff's point of view to

focus on the precise date of the contract or,

indeed, I suppose, the terms of the contract other

than a contract - the fact that it is a contract

for cartage.

MR MYERS:  Yes, quite so, Your Honour, and we would submit,

in exactly the same way there was no importance to

be attached to the date that we were asserting,

whatever date it might have been, because we were

asserting that the relevant matter, that is, the

matter addressed in paragraph 6 of that document

that has been handed up to Your Honours, we were

Tyson(2) 24 30/6/93

asserting that that was the significant matter for

determination by His Honour.

The plaintiff, up until its abandonment in the course of its address, was contending for a written

contract on 17 October. We were contending for a

contract that was not formed until after the

discussions on 11 October. So both sides - it is

overstating it to say it is common ground, but both
sides were contending for the discussion under

consideration to be precontractual.

The respondent throughout denied that the discussion had ever taken place. It simply said

there never was a discussion, but His Honour found

that the discussion did in fact take place and it

took place on 11 October. So, on the plaintiff's

~ case, until abandonment in the course of its

address if that has any significance, the plaintiff

was contending that the conversation - which was

denied - was precontractual and the appellant was

contending for exactly the same finding, that is,

that the conversation, whenever it was held, was

prior to the formation of the contract.

DAWSON J: Then do the terms of the contract become of

importance, as to whether they contained any term

relating to insurance?

MR MYERS:  No, not ultimately. Your Honours will see from

our defence that it was contended that it .ras a
term of the contract that there be insurar.,;e, but

ultimately the way the appeal was conducted before the Court of Appeal all of the reliance was simply placed upon the defence and counter-claim pursuant

to section 52 and the-relief sought under

section 87. But Your Honours, could I - - -

DAWSON J: So, in effect, you were contending, "We would not

have entered into that contract had we known that

the vehicle was insured." Alternatively, "If we

would have entered into the contract, we would not

have carried goods in that situation"?

MR MYERS: Yes. But certainly not at trial Your Honour. At

trial it was simply the former.

DAWSON J: Or, "We would have effected insurance ourselves."

GAUDRON J:  You pleaded the former but your evidence went beyond it, did it not?

MR MYERS:  Your Honour, we submit not. Ultimately the Court

of Appeal thought that that answer to which

His Honour the presiding judge referred yesterday would really suggest that the contract had already

been formed, because in response to my question to

Tyson(2) 25 30/6/93

Mr Tyson, "Had the representation effectively not been made, would you have entered into the

contract?" He started to say, "I would not have

entered into", and then paused and said, "I would not have drawn it". Which, in my submission, was

simply a responsive answer to my question. It was

not an indication, as the Court of Appeal

subsequently took it, of an indication that the

contract had been entered into.

But really the Court of Appeal, ultimately,

did not decide when the contract was entered into.

The Court of Appeal simply took the view that because we had raised the conversation as being

precontractual that there was an obligation on us to prove the date of the contract but, of course, exactly the same could have been said of the

plaintiff.

The plaintiff alleged a contract, alleged

that it was a written contract of 17 October.

There was a specific finding against it. It was

incumbent upon it to prove a contract if it was in

issue before an award of damages could have been

made. But, of course, we go back to the principal

point of view - it never was in issue. We did not
address His Honour on the basis that if you find

that the written contract did not exist, the

plaintiff's claim fails.

Obviously, the date of the contract was always

in issue in that there were denials.on both sets of
pleadings but it was not addressed except, of
course, in the sense that the appellant was always

contending that there was not a written contract on

17 October. Your Honours, could I give - - -

BRENNAN ACJ: Could I just trouble you for a little longer.

It seems that there was, at some stage during the

course of the trial, an abandonment by the

plaintiff of any reliance upon the document which

would have reached the defendant on 17 October.

That is clear, is it not?

MR MYERS:  Yes. Well, Your Honour, with respect, could I

correct that? It is perhaps wrong to say "during

the course of the trial" because it is really quite

important, in respect of our submissions, that all

of the evidence - and effectively the trial was

conducted upon the basis that the plaintiffs were

alleging a written contract on 17 October - the

appellant addressed on that basis, of course,

because he had the first address as defendant and

evidence having been called on both sides, and the

abandonment was not made, as His Honour records in

the reasons for judgment, until the plaintiff was

having the final address.

Tyson(2) 26 30/6/93

So really the trail, in our respective

submission, was conducted on the basis of a written

contract on 17 October, 1986. One really wonders

what the abandonment of reliance upon exhibit 3

really means. Does that mean that one withdraws

one's further and better particulars and is no

longer asserting a written contract of 17 October?

The matter was was not addressed, of course, and it

is sheer speculation to wonder what it might mean

because, in our submission, the date was never

relevant.

DAWSON J: In reality, what should have happened was that

the trial judge should have forced the plaintiff to

amend it2 pleadings to accord with its then

content~_n on the evidence.

MR MYERS: Exactly.

DAWSON J: But, that did not happen.

MR MYERS:  No, and had it happened - and, of course, when

the plaintiff realized it was futile to rely upon

the written contract of 17 October,_it may well

have said, "We rely upon the very contract that the

appellant contends for.", that is, the oral

contract.

Your Honours, I should give you the reference

to this oral contract, because I have spoken a deal

about it and it may arise. Again, the relevant

dates were not pleaded and further and better

particulars were sought.

Could I take Your Honours to the supplementary

record and to page 51. There were two requests for

particulars and two responses to it, but at page 51

of the supplementary record the first defendant,

the appellant here, says:

The said term referred to in paragraph 2

of the First Defendant's Defence and

counterclaim was oral.

So, we we were contending for completely oral, and

then:

The substance of the conversation was

that the Plaintiff would maintain a commercial

motor vehicle Policy ..... to indemnify and hold

harmless the First Defendant -

and, of course, ultimately we did not proceed with

it as a condition of the contract. But

paragraph l(b)(iii) is the important one:

Tyson(2) 27 30/6/93

The date and place of the said

conversation was on or about the 11th October,

1986 at a depot at Ipswich at which place the

pantechnicon van was to be collected.

So, that is our first assertion of an oral contract reached on that date. Further and better

particulars were subsequently sought. Your Honours

will see the date of that document is 18 July.

Again, further and better particulars were sought and they appear at page 54, paragraph 2:

The contract was oral. The terms thereof

were that the First Defendant would tow the

Plaintiff's pantechnicon to Brisbane 5 nights

per week at a remuneration of 67 cents per
kilometre. It was a further term of the

agreement that the Plaintiff would maintain a

commercial motor vehicle policy -

et cetera. Paragraph 3:

The contract was made between John

Gardner on behalf of the Plaintiff and the

First Defendant on his own behalf in the course of a telephone conversation between

Bundaberg and Brisbane which took place on

10 October, 1986.

Your Honours, that was the evidence at the trial in

relation to the agreed price of carrying and let me

say that that was the only term that it was said -

was addressed, and I will take Your Honours to that

in due course.

The substance of that conversation related to the nature of the First Defendant's employment and his rate of remuneration. The term of the

contract relating to the plaintiff's

maintenance of an insurance policy was agreed

between John Rolls on behalf of the Plaintiff

and the First Defendant on his own behalf at

premises at Ipswich on 11 October, 1986.

That was the plaintiff's case: completely

oral terms agreed over the course of two days but

no contract completed until 11 October. With the

discussion before completion, or as part of the

completion is perhaps the better way to put it, and

the plaintiff's case throughout, until abandonment,

if that had any effect at all, but certainly up

until the time of the plaintiff address,

17 October.

Now, Your Honours, if I could dispose of the

rest of this document then Your Honours will see

Tyson(2) 28 30/6/93

that with the gloss that is put on it by

paragraph 4, paragraph 1 is really agreed.

The plaintiff at all times contended that

there was no representation.

That is agreed. We, throughout, contended that

there was a representation and that it induced the

contract and we did not contend - until, of course,

the Court of Appeal when this contractual, or at

least the date of the contract arose, that it did

not matter. It was never contended at trial that

it did not matter.	It simply was not addressed at
trial.

Paragraph 4 has been covered. Paragraph 5 is

agreed, the plaintiff at no time resiled from the

fact that there was no representation. The

plaintiff's submissions at trial went to those two

issues and I am going to hand up the submissions

and Your Honours will see that apart from matters

that have been abandoned that was really, with the

greatest of respect to His Honour Judge Boyce, his

task to determine those two issues at 6.

It is correct to say, and Your Honour the Presiding Judge, asked about this yesterday, other

submissions were made but none as to whether the

Trade Practices Act relief was open as a matter of

law. The trial was really conducted on the basis

that one or other of the parties had to succeed

based upon the resolution of 6(a) and 6(b).

Paragraph 7 says:

There were no agreed facts and no

concessions were asked for or given.

In so far as it is material that is so. As

Your Honours will have seen from the record, and I

made some reference to it yesterday, to really

refine the issues, the amount of damages was

agreed, I think, at $50,000.	The counter-claim was
agreed.	I think there was an agreement in relation

to interest - - -

BRENNAN ACJ:  You say the counter-claim was agreed?

MR MYERS:  Yes. The quantum of the counter-claim was

agreed. At one stage it was a much higher figure

and it was ultimately agreed that the sum for which

His Honour gave judgment, negligence as I indicated

yesterday, was agreed. So, paragraph 7 has to be

read in that light, but there was certainly no

agreement or concessions asked for or given in

relation to the essential matters that concern this

Court.

Tyson(2) 29 30/6/93

Your Honour, I am sorry, I should say - Your Honours will see this - I might have confused

Your Honours there. At page 23 of the record there

were two parts to the counter-claim. The part that

was conceded was the claim for reimbursement for

services rendered.

TOOHEY J:	You mean the cartage, the cost of the cartage?
MR MYERS:	Yes, the cost of cartage. There was certainly

never a concession - I am sorry I may have misled

Your Honour. There was certainly never a

concession that we were to succeed on the claim

under section 87 because that was the issue to be

resolved.

BRENNAN ACJ:  Was it common ground that if the issues in

paragraph 6(a) and (b) were found in your favour

that the judgment should be for you?

MR MYERS:  Your Honour, it is probably not correct to say

that there was ever common ground and that is

really a significance of paragraph 7 but the case

was argued on that basis and, I think, that -

BRENNAN ACJ: Well, that is something that I simply do not

understand. If it was argued on a particular basis

it means because the parties had agreed that the

issue calling for the judge's determination was so

and so.

MR MYERS:  Your Honour, that follows as a matter of logic,

with respect, but it was never agreed in that

sense. Counsel did not ever say to each other,

"Let us leave as the only issue for the trial judge

the issue of misleading and deceptive conduct", but

as a matter of logic, and as things turned out,

that was the only issue left for resolution.

Your Honours, might I demonstrate it, as I

promised I would yesterday, by handing up the

submissions that were made at trial and I will not

delay Your Honours to any extent with this, but it

will show Your Honours what the issues were and, as

we submit, it follows really as a matter of logic
what was common ground.

There are the five copies, Your Honours, of the submissions that were made on behalf of the

first defendant, the appellant. I will take

Your Honours very quickly through the chaff as it were and get to the wheat. Rather than have Your

Honours read them, unless Your Honours seek to do

so, could I take you through them because as I say

they really turned out to be a lot of chaff

Tyson(2) 30 30/6/93

ultimately, and we do not want to delay Your

Honours with that.

If I could take you to the first defendant's

submissions first, that is the appellant's

submissions, because obviously they were made

first. Your Honours will see at the outset that

the fundamental submission went to the question of

credit because that was, as far as both parties

were concerned of course, the essential issue, Mr

Rolls denying the conversation and the first two pages are directed to that issue which, obviously,

will not concern Your Honours and, ultimately of

course, the credibility finding was made in favour

of Mr Tyson, the first defendant.

Page 3 addresses the relationship of bailer

and bailee and has now become irrelevant. Pages 4

goes back to address the credibility issue and the

reasons why His Honour should, as he ultimately

did, accept Mr Tyson.	We continue to address that
at page 5, page 6.	Your Honours will see midway

down there is nothing in any of the written

documentation which conflicts with Tyson.

Page 7 then addresses the first of what I

might say, apart from credibility, were the issues

and it was contended that there was an express term

of the contract. It is conceded now that that is

abandoned and nothing more turns on that, so Your Honours will not be interested in that.

It was then alleged at page 9 that there was a

collateral contract and again there was no finding

made in our favour and certainly it is abandoned

now.

There was then the argument of estoppel which

commences at the bottom of page 10 and is developed

with reference to The Commonwealth v Verwagen and

we specifically abandoned that before the

Court of Appeal.

There are then general submissions as to the importance of the insurance agreement, if I could use that word as far as Mr Tyson was concerned.

Then at the bottom of page 13, misleading and

deceptive conduct was addressed. References made

to various cases under the Trade Practices Act.

That runs through to midway down page 15, and could

I simply pause there to say that, effectively, is

all that Your Honours are concerned with in this

appeal, and Your Honours will see that there are no

relevant side issues.

Then section 66 of the Insurance Contracts Act

was addressed and that, of course, takes us through

Tyson(2) 31 30/6/93

then to midway down page 19 which is completely

irrelevant and then there is a summation of the

issues, and Your Honours will see that there is no

question raised about any contract or whether or

not the conversation that was had was pre or

post-contractual. It simply was not an issue, it

was essential to determine to credit and as the

ultimate paragraph says, in the event of a finding

in favour of the defendant, the plaintiff's claim

should be dismissed with costs and there should be

judgment for that agreed amount of $4935 in respect

of cartage. So, that is the way the appellant

conducted his case.

The plaintiff's submissions in paragraph 1

deal with section 65 of the Insurance Contracts Act which is of little concern. Paragraph 2 deals with

section 66. Paragraph 3 expounds on section 66 in

terms of whether or not a subcontractor can be an

employee, with reference to Stevens & Brodribb.

Paragraph 4 addresses the credibility issue. There is a second paragraph 4 which addresses the

contract of bailment, and 5 addresses the
misleading and deceptive conduct aspect of the

matter. Again without any reference to, in our

submis, again without any reference to, in our

submission, critical issues whether or not it was

precontractual, whether or not anybody was

contending for a finding in terms of the date, and

perhaps essentially the issue that

Your Honour the Presiding Judge raised yesterday:

whether the relief was available. It was never

contended to the contrary, and finally paragraph 6

abandons the estoppel argument.

So they were the issues and certainly the

issue as it emerged before the Court of Appeal in

relation to the date simply was not an issue.

Your Honours, there is no dispute about paragraph 8 of the respondent's conduct at t~e

trial. Paragraph 9 is correct that the defendant

made submissions on reliance, and they are

addressed there, as Your Honours will see. The

plaintiff did not address on that issue and simply

continued with the denial of the representation.

At paragraph 10 it is said - and again, perhaps

this is not unreservedly accepted:

The date of contract was:

(a) an issue at trial -

It was an issue in the sense that both parties had

particularized the respective contracts for which

they contended in terms of dates and there were

denials.

Tyson(2) 32 30/6/93

GAUDRON J: Is that because the document, exhibit (c) I

think it was, had a provision in it as to

insurance?

MR MYERS:  Yes. I am sorry. Your Honour, that was the

significance of the document because it - - -

GAUDRON J: And of the date of the contract?

MR MYERS:  Yes, and this was really the other point, that if

we had entered into the contract as was contended

on the 17th and accepted the responsibility for

insurance imposed upon us by that document, we were

estopped on one argument from relying upon the

conversation. But of course, more essentially,
even if that had been a precontractual negotiation

when the document was reduced to writing, from a

contractual point of view we could no longer rely

on it and, of course, that was its significance.

So to the extent that both parties had pleaded

relevant dates, it is correct to say that the date

was an issue at the trial, but it was not an issue

to the extent that the parties had asked for any

specific finding. And, more particularly, it was

not an issue to the extent that the trial was
conducted upon the basis that effectively all of
the evidence given was inadmissible, because the

contract, as the Court of Appeal would tend to

suggest, was formed on 10 October 1986, so

everything that went on beyond 10 October, and more

specifically, the 11th, would have been irrelevant

on the argument based upon misleading and deceptive

conduct inducing the contract. We say it was not

irrelevant, firstly, because the trial was

conducted on the basis that if it took place it did

induce the contract, but secondly, had it been

raised as an issue we could have said it did not

have to be precontractual in any event.

BRENNAN ACJ:  Now, if you succeed, Mr Myers, what order

precisely do you seek?

MR MYERS:  Your Honours, it seems, unfortunately - and this

was foreshadowed in the application for special

leave - that it simply has to go back to the

Court of Appeal.

BRENNAN J:	To determine what question?
MR MYERS:	To determine the question of whether or not the

conduct was misleading and deceptive.

McHUGH J:  I must say that is the difficulty I have got

about this case, because I must say I think the

trial judge's finding on that question seems to me

to be correct. I have not heard your argument, but

Tyson(2) 33 30/6/93

it would need to be a persuasive argument, I am

afraid, to persuade me to the contrary.

MR MYERS:  Yes, Your Honours, the question was -

McHUGH J:  It is unfortunate that the time of this Court has been taken up on that particular issue. If you

look at what appears at page 51 of the appeal book

concerning this conversation, is that all there is

to be said on the question? There is a bit of

cross-examination at 56, 57.

MR MYERS:  No, that is really all. It is the simplest - - -

McHUGH J: At 51.

MR MYERS:  It is the simplest question and the simplest

answer but, Your Honours, if you look at the

transcript before the Court of Appeal, the

Court of Appeal were overwhelmingly convinced.

Right from the outset of the argument the court

really took the attitude that very little had to be

said and ultimately lit on this other point

concerning the date of the contract.

TOOHEY J:  From your point of view, you have to take your

stand, do you not, basically on what appears at

page 100, line 54, in the judgment of the Court of

Appeal.

MR MYERS:  Yes, it is for that reason that I highlighted at

paragraph 2 of my submissions before Your Honours.

In fact, it seems to be such a strong case when ·one

looks at what the Court of Appeal said about it,
that one would have thought that this Court could

be so bold, if Your Honour was not of the view that

obviously Your Honour is, that it is really a waste

of time to go back to the Court of Appeal if the

court finds for the appellant on the narrow issue

that has been raised here.

BRENNAN ACJ: For my part, I would like to understand

precisely what you would ask the Court of Appeal to

find in your favour that would lead to relief in

favour of your client.

MR MYERS:  That the issue that was found against us by the

Court of Appeal was not open to it, having regard

to the way in which the parties conducted the

trial, and that the matter is remitted to them to

be heard and determined accordingly.

BRENNAN ACJ:  What do you want them to find? What is to be

your argument when you get there? What are you

going to ask them to find as facts? What are you

going to ask them to conclude as questions of law?

Tyson(2)	30/6/93
MR MYERS:	No, the only issue that is to be determined by them is the issue that effectively they have
determined at page 100.

BRENNAN ACJ: What, that the representation was made?

MR MYERS: That the representation was misleading and

deceptive and led to the loss. Your Honour, it

does not matter whether it is pre or post

contractual. One simply has to establish the

misleading and deceptive representation and the

potential for loss and damage or, alternatively, of

course, that in fact it was precontractual. But

that is not necessary, but the court could easily

find - - -

BRENNAN AGJ:  What do you mean alternatively precontractual?

What significance does that have?

MR MYERS:  That that then is the basis on which it was

pleaded.

BRENNAN ACJ:  What follows from a finding that it was made

before the contract?

MR MYERS:  If the representation was made before the

contract and induced it, and the court seemed to

have been content about that, it follows that the

defendant succeeds with his defence in the action.

BRENNAN ACJ: 

So you would contend for a finding that it was

made before the contract and that it induced the
contract?

MR MYERS: 

Yes.

BRENNAN ACJ: Or, alternatively, that it was made after the

contract and induced the carriage?

MR MYERS:	Yes.
BRENNAN ACJ:	And in either event, was productive of the

loss which is the amount recovered by the plaintiff

against you?

MR MYERS:  Exactly. And there perhaps could be added a

third alternative to that, that we could have

arranged the insurance. Had he been truthful about

it we could have simply picked up the phone,

arranged a cover note before we drove out of the

yard.

BRENNAN ACJ: Leading to what result?

MR MYERS:  No loss, no exposure to loss. Had he given an

honest answer, even if the contract had already

been entered into and we had gone down to pick it

Tyson(2) 35 30/6/93

up, and Mr Tyson said, "Is this insured?" and

Mr Roles responded, "No, it is not", there was no

question that we would have had to have breached

the contract, as Mr Justice Moynihan said in the

course of the hearing, "You simply would have

arranged your insurance".

BRENNAN ACJ:  Where is the evidence that on that third

hypothesis, you would have been covered, and that
not being covered, you have suffered damage

recoverable under section 87?

MR MYERS: There is not evidence, because the trial was not

conducted on that basis, is probably the answer.

But, Your Honour, there is no doubt that an

insurance policy could have been arranged.

Exhibit 3 insisted that we arrange such a policy.

Had it been given to us, we would have known what

our responsibility was. One can only assume that

if one arranges an insurance policy against such a

contingency, one does not, as a result, suffer the

loss and damage.

BRENNAN ACJ:  It seems to me that this Court could only send

the matter back to the Court of Appeal for the

purpose of determining issues which were before the

Court of Appeal at the time when the Court of

Appeal gave its judgment.

MR MYERS:	Yes.
BRENNAN ACJ:	That in turn depends on whether those issues

were live issues at the trial, and were alive at

the time of the conduct of the appeal.

MR MYERS:  Yes. And the only - - -

BRENNAN ACJ: But the third of those hypotheses was not, it

seems, canvassed.

MR MYERS:  No, it was not. It was not canvassed.

BRENNAN ACJ: Well, then, it must be the first two

hypotheses which the Court of Appeal might be

invited to consider.

MR MYERS:  Yes, with respect, that is so. They are the only

live issues at the trial that went to the court.

Your Honours, could I take you to the judgment

of the Court of Appeal and to what is probably is a

significant passage at page 101, and this is

demonstrative, in our submission, of the error into

which the court fell. Commencing at line 30,

having quoted the amended defence paragraphs lB and

lC which contended for antecedent negotiations:

Tyson(2) 36 30/6/93

From this it is quite clear that the

first defendant's allegation was that the
misleading or deceptive statement was made in

the course of the antecedent negotiations, and

hence before entering into, the agreement to

pull the pantechnicon and trailer, which is

the agreement referred to in paragraph 2 of

the statement of claim.

That is, certainly up to any abandonment that might

have occurred during the plaintiff's address, but

throughout the hearing and throughout the

defendant's address, the agreement which was

alleged to be one in writing entered into on

17 October 1986. Their Honours go on to say: There is no finding by the trial judge with

respect to the precise time at which that

agreement or contract was concluded -

Now, that is quite so, we say because it was

never a real issue. It is as harmful to the

respondent as it is to the appellant, because they

have recovered damage on a contract -which they had

pleaded as being one entered into on the 17th but, of course, what is clear is that the conversation was held before the 17th, and the Court of Appeal

has specifically found that the agreement that is

in contention is that in paragraph 2 of the

statement of claim. Their Honours then go on to

say:

so that it is now for this court to exercise

the powers that it has under O 70, r 11 of

drawing inferences of fact from the material

before it.

With respect, that is not Their Honours' function.

The court can draw inferences from facts, but this

was a fact that was never addressed at the trial.	His Honour Mr Justice McPherson really makes that
quite clear. If Your Honours would look at the
last page, page 50 of the supplementary record, the
last page of the transcript before Their Honours, where Justice McPherson says:

Well, it may be that his personal inspection

of the vehicle was a condition precedent to

his acceptance of what was on offer, or it may

have been a condition precedent to his

performance of the contract already formed -

Their Honours were really still of the view that

the contract might not have been formed -

Tyson(2) 37 30/6/93

and I don't know that we're going to be in a

very strong position to resolve that question

on appeal.

Simply because the matter had not been addressed.

But what is abundantly clear is that the

conversation that we were saying was precontractual

is, as the Court of Appeal have said, pre the

agreement referred to in paragraph 2 of the

statement of claim, and that really can only have

been the agreement of 17 October.

BRENNAN ACJ: It is a peculiar phraseology for a defence, is

it not, to say that in the course of antecedent

negotiations which culminated in the agreement

referred to in paragraph 2, when that is an

~g,reement, the existence of which is denied?

MR MYERS:  Yes, it is really; it is quite clumsy to that

extent but, Your Honour, what is significant is

that although the agreement is denied, it is

contended for that it was entered into on

17 October. So, it is still antecedent. As clumsy

as the pleading might be, and I have to accept

responsibility for it, it was never an issue. It

was never raised that this evidence could be

objected to.

Could I take Your Honours to that but briefly,

to demonstrate the way in which the trial

proceeded. The trial was a very short one, as

Your Honours will see, because of, effectively, the

issues that were involved.	The witness Roles was
cross-examined.	The cross-examination commences at

page 41. Without taking Your Honours to the

evidence, could I demonstrate the point in this

way: cross-examination commences at line 43 of

page 41. There are two general questions. From

page 42 the question that was addressed was the
precontractual negotiations, or at least this

discussion which it was alleged took place between
Mr Roles and Mr Tyson.	Now, none of this was

objected to, and it was all completely

objectionable if it was ever going to be a

contention that this conversation was later.	So
that commenced at page - - -

BRENNAN ACJ:  Why was it? I understood you to say that one

of the issues at the trial was that even if it was

post-contractual, it still led to an effective

defence.

MR MYERS:	No, that was never an issue at the trial.
BRENNAN ACJ:	Then how is to be an issue before the

Court of Appeal?

Tyson(2) 38 30/6/93

MR MYERS:  Your Honour, because the matter having been

raised, it was addressed by counsel before the

Court of Appeal in those terms before them.

BRENNAN ACJ:  Then it must be an issue for the Court of

Appeal to decide whether it falls under category A, the precontractual, or category B, the post-

contractual.

MR MYERS:  Your Honour, under Order 70 the pleadings can be

amended before the Court of Appeal.

BRENNAN ACJ:	Were they amended?
MR MYERS:	No.
BRENNAN ACJ:	Were those issues raised, one or the other?
MR MYERS:	Yes.
BRENNAN ACJ:	Why was the Court of Appeal not required to

determine it?

MR MYERS: 

Because the Court of Appeal said in the state of

the pleadings, and this was correct, in the state
of the pleadings we had pleaded antecedent

negotiations; therefore there was a necessity to
establish a date of the contract, and paid no

regard to the alternative argument.  The only live

issue, in our submission, before the trial judge
was this question of misleading and deceptive

conduct.  Had he found in favour of Tyson, which·he

did, and had he found that the conduct was
misleading and deceptive, it followed that there

had to be judgment for the appellant. That was the

basis on which it is contended that the trial was

conducted. That is why this evidence was relevant.

It could not possibly have been relevant if it was

ever going to be contended that these negotiations

were post-contractual, because they would have had no relevance.

So, Your Honours, the whole of the transcript is occupied with evidence of this sort, that was

not objected to; all of the cross-examination at

pages 42 to 48.  The question of insurance itself

was addressed at page 44, line 20:

It was a matter of importance, wasn't it,

Mr Roles, this question of insurance of the

pantechnican?-- Yes.

It was certainly a matter upper most in your

mind?-- Right.

Do you agree with that?-- It was a matter of

importance, yes, sure.

Tyson(2) 39 30/6/93

Had Mr Tyson said to you 11 October, or for

that matter, at any other time, when he was
taking a pantechnican, "I have got no
insurance."? You wouldn't have allowed him to

take it?-- No, that's not quite true. It's up

to the individual, the sub-contractor whether
they want to take out that policy or not.

That's their risk that they run.

You would tell them that, wouldn't
you?-- Sure, you would tell them, but you
would tell them, and it is our policy for our

manager to tell any prospective sub-

contractor -

which, of course, Mr Tyson was -

that we advise them to take out a driver's

liability negligence liability.

Driver's liability negligence liability, I think he

meant, policy.

But, Your Honours, that is the way the cross-

examination proceeded, right through to page 48

which was the termination of it. There was no

objection to the examination in-chief of Tyson and

virtually all of his evidence, commencing at page

49 through to 52, related to this question of what

went on in negotiations which were said to be

precontractual.

So I in turn rang Mr Gardiner, and Mr Gardiner

said, "Yeah, right, the pan is -

BRENNAN ACJ:  You do not need to read it to us, do you? you need to read it to us? Do

MR MYERS:  No, Your Honours, just simply to give you the

flavour. Your Honours, could I, though, give you

this reference to page 50, line 45, which related

to the question of whether or not the contract had

been entered into:

Were any terms of the contract discussed on

the telephone with Mr Gardiner on the Friday?

No terms of contract whatsoever.

Was any agreement reached in relation to the

price?

Yes.

What was that?

Tyson(2) 40 30/6/93

Well, the cents a kilometre that they pay

everybody else.

Was anything said about a document that was known as a Subcontractors' Manual?

None whatsoever.

Was anything said about any insurance .....
Wasn't mentioned.

But, Your Honours, that is the critical piece of evidence that the court has overlooked and, of

course, Mr Tyson was found to be a witness of truth

by His Honour. No terms of contract whatsoever -

they discussed the price which was the same price

that was to be paid to everybody else.

Your Honours will see in the reply and answer

that a relatively complex agreement is alleged,

pursuant to which there was to be a payment for

fuel.	Now, it was never suggested that that was
discussed on the telephone on 10 October.	I have
given Your Honours the reference to page 44,

line 35, that it was company policy for prospective

subcontractors to be advised of insurance. None of

this had been done. The overwhelming evidence was

that the contract had not been entered into.

TOOHEY J:  I understand the drift of the submission,

Mr Myers, namely, at the moment ~-ou are seeking to

persuade us that there was evidence to demonstrate

that the statement made to your client was made

precontractually. In doing that, you are tending

to move away from what I thought was really your

primary ground, namely that whether or not it was
pre or post-contractual, was not an issue at the

trial.

MR MYERS:  Yes, I am, Your Honour, and I must say it is

simply the alternative argument. Our principal

submission is it was not an issue - - -

TOOHEY J:  I am not sure, in your answer to Justice Brennan

as to the questions that ought to go back to the Court of Appeal, you have not unnecessarily tied

your hand because you accepted the invitation that

two questions should go back; one framed in terms

of precontractual statement, the other framed in

terms of post-contractual statement. But the way

you put your argument, it seems to me that

overshadowing all this is your primary question, or your primary contention that that was not an issue,

namely whether the statement was precontractual or

post-contractual.

Tyson(2)	41	30/6/93
MR MYERS:	Yes.	I would not like to be tied to formulating

the question whilst I am on my feet, the question

that actually goes back.	The cases that have been
decided on similar issues -

TOOHEY J:  I was not inviting you to take us into questions of law. I was simply pointing out that there is

that broader question that runs along with what

might be thought of as subsidiary questions,

whether the statements were precontractual or

post-contractual. I appreciate, you say that you

can make out your case on either approach.

MR MYERS:  Yes.

TOOHEY J: But, simply to put it that way might be to lose

sight of what your argument has been since
yesterday afternoon, that whether it was

precontractual or post-contractual is simply not an

an issue and therefore the Court of Appeal should

have dealt with the matter on the basis that it was

not an issue and leaving for it, really, the only question to be determined, whether the statements made were capable of constituting misleading or

deceptive conduct.

MR MYERS:  Yes, that is ultimately the order for which we

contend.

BRENNAN ACJ: That leaves me in a state of complete

puzzlement, Mr Myers. If the matter goes back to

the Court of Appeal to decide whether or not there

was a representation which was misleading or

deceptive, it must be your argument that if that is

found in your favour you are entitled to the

resulting judgment, and you must be in a position

then to demonstrate that that is the fact as a

matter of common ground between yourself and the

other party, and yet one sees in question 6(b) that

there is an outstanding issue as to inducement on
the matters which are conceded.	Induced to do
what, must be the question.

MR MYERS:  I am sorry, on paragraph 6? No, Your Honour,

paragraph 6 - and, as I have conceded, these were

the issues, whether the representation was made and
there is a specific finding of His Honour that it

was.

BRENNAN ACJ: Yes.

MR MYERS:  And then, whether the representation was

misleading and deceptive. That is the only issue,

in our respectful submission, that was effectively

left to the trial judge. Obviously sections - - -

Tyson(2) 42 30/6/93

BRENNAN ACJ:  What does that mean, misleading or deceptive

in what respect? I mean, the proposition was that

he said that it is insured.

MR MYERS: Yes. In terms -

BRENNAN ACJ:  And the question that was live was whether

that was sufficient to induce in your client's mind

a belief that he would be indemnified under that

contract if any misadventure should occur.

MR MYERS:  Yes.

BRENNAN ACJ: Then the misadventure occurs, and that is the

loss.

MR MYERS:. Yes.

BRENNAN ACJ:  So there must be a question as to whether or

not the statement that was allegedly made was one

which led to the loss by reason of that misleading

conduct.

MR MYERS:  Yes. If he accepted, if he acted upon the

representation, and there was evidence that he did,

whether that was - - -

BRENNAN ACJ:	By doing what?
MR MYERS:	By, as he put it, as I asked him to put it,

entering into the contract, as he put it, hitching

up the trailer. Without making any other provision

it is implied in terms of insurance because he had
been assured that it was insured. It simply has to

be misleading or deceptive conduct which ultimately

resulted in his loss.	And that was all that the
Court of Appeal had to do.	It was not for them to

find, when it had never been an issue before

His Honour, that we had failed to prove the day,

which, as I submit, equally, the plaintiff had

failed to prove in making out a claim for damages

for breach of contract. It was never an issue.

McHUGH J: 

When you say it was never an issue, I cannot help but feeling that on your side, and probably on the

other side, the point was really overlooked.

MR MYERS: 

I do not like to say it was not overlooked

because I do not know what the situation is.
Your Honours, could I put it in this way, it cannot

be, with the greatest of respect, be put in any
better way than Justice Isaacs and Rich put it in

Gould's case:

But pleadings are only a means to an end, and

if the parties in fighting their legal

battles -

Tyson(2) 43 30/6/93

this is at page 517, it is on our list, but

if the parties in fighting their legal battles

choose to restrict them, or to enlarge them,

or to disregard them and meet each other on
issues fairly fought out, it is impossible for

either of them to hark back to the pleadings

and treat them as governing the area of

contest. There is abundant authority for

this, even if the matter were required to rest

on authority only.

McHUGH J: Well, there is an unreported judgment of this

Court back in the 1970's in a case called

Gypsy Caravan v Daley which is quite contrary to

that, where a party was held to the pleadings,

notwithstanding that the case had been conducted in

a more general fashion. The question was whether a

duty of care was owed and counsel for the appellant

said that this was not the way the case was

conducted in accordance with the pleadings and this

Court said unanimously, "But your client admitted

to facts a, b, c, d, and e, and that was what was

pleaded by way of defence and that is the end of

your case".

MR MYERS:  Your Honour, there will always be cases like

that, particularly when facts are admitted. But

this was not that case. This was a case where the

dates were denied, but the ultimate issues for

resolution by the trial judge, as you will see as

was addressed in the written submissions, was

simply, "Your Honour, tell us if we are right about

this being misleading or deceptive conduct or not".

"If it is not" - leaving aside section 65 and 66

and they are not to concern this Court - "If it was

misleading and deceptive conduct, and if as a

result of it we suffered loss, there should be

judgment for the defendant. If we are wrong about

that, if Your Honour finds", as His Honour did,

"that it was not misleading and deceptive conduct,

there is effectively judgment for the plaintiff".

Now, I am not suggesting that either counsel

put that submission to His Honour, but that was the

effect of it.

McHUGH J: But supposing this was a jury trial and at the

conclusion of the summing up your opponent got up
and asked for a direction that the defendant could

not succeed unless it was established that the

representation was made prior to the contract.

Now, could you complain in that situation about such a direction being asked and given?

MR MYERS:	In this case you certainly could.
Tyson(2)	30/6/93

McHUGH J: Well, I would have thought not if it was open on

the pleadings.

MR MYERS: With respect, if Your Honour looks - it would

certainly be a case where you would be permitted to

reopen - at the evidence that was given, one has

difficulty in finding one page of evidence that

would be admissible if, with the greatest of

respect, what Your Honour says is so. The entire

trial was devoted to the question of this

conversation between Roles and Tyson, and in fact

it was only, as Your Honours will see, both Tyson

and Roles were recalled because the section 65, 66

of the Insurance Contracts argument, which was

abandoned, was revived and both of them had to be

recalled, and in the recalling of them, and of

directed to the misleading and deceptive conduct.

course their evidence is there, all of the

questions were directed to this matter of the

But, all of the evidence up to that point -

and I do not want to over state it, there are

obviously some other issues - but it was all

addressed.

BRENNAN ACJ:  Mr Myers, just one question. You are seeking

to impugn the decision of the Court of Appeal,

virtually on the basis that you have not been given

natural justice and the opportunity to deal with an

issue. Have you any instance of a case where an

appellate court has been held to fail to accord
natural justice, when the appellate court has

directed its attention to an issue which has been

overlooked by the parties in order to resolve an

appeal? Not contrary to what the parties have

said, but dealt with an issue which the parties

have overlooked?

MR MYERS:  Your Honour, I do not know that I can give you a

precise case, but of course, that is the statement

which I have reproduced, as Your Honours will see

at paragraph 10 of the submissions, referring to

the University of Wollongong v Metwally, which was

cited with approval by this Court in Coulton v

Holcombe, and that is that it is:

"contrary to all principle to allow a party,

after a case had been decided against him, to

raise a new argument which, whether

deliberately or by inadvertence, he failed to

put during the hearing when he -

McHUGH J: What about a case like Adams v Chas. S. Watson

Pty Ltd, (1938) 60 CLR, where there was a

concession about a point of law and the party, the

appellant, was allowed to raise what he had

Tyson(2) 45 30/6/93

conceded to be wrong. It rankled me when I was at

the bar in a case called Lang v Australian

Consolidated Press.	My opponent made a concession
which I should have won on at the trial.	When I

got to the Court of Appeal, the Court of Appeal

decided the case contrary to my friend's concession

and when I came up to this Court on a special leave

application the then Chief Justice said, "Well,

you've now got your opportunity to put the point;

argue it now". Quite frequently in the course of

litigation this sort of thing happens. As long as

the evidence would not change the situation, you

are entitled to take any point that is legally

available to you, are you not?

MR MYERS:  Your Honour, with respect, that is so, and the

authorities recognize an important distinction in

relation to points of law, but - - -

McHUGH J: This is a point of law, in a sense, is it not?

It says as a matter of law you cannot succeed

unless you establish that this was made prior to.

MR MYERS:  No, with respect, it is not, because what you do

is go to Gould's case and you go to Rowe v

Australian United Steam Navigation. What this is

an instance of is the parties having a very

restricted issue for determination by the trial

judge, and what those cases say is, you cannot

then, when an issue is not addressed - Your Honour,

to the extent that it was addressed, everybody was

contending for a contract that was posed for

discussion, to the extent that it was addressed.

It is just not one of those cases where it can be

said, "Well, all the parties forgot about it and

they were inadvertent".

McHUGH J: Well, why did you ask about whether any terms had

been settled?

MR MYERS:  To show that it was precontractual.

McHUGH J: Were any of the terms of the contract discussed

on the telephone on the Friday? That seemed to

indicate it was a live issue so far as you were

concerned, that you were seeking to say that the

contract had not been concluded until the Saturday.

MR MYERS:  Yes, that was our case. It was pleaded as such.

I have given Your Honours the further and better

particulars. We were pleading a contract entered

into in terms of the price that we were to be paid,

on the telephone, on the 10th; no concluded

contract; we went down - the defendant went into

great evidence about looking at the van. He was

the boss, and he specifically said he did not send

a driver because as far as he was concerned the

Tyson(2) 46 30/6/93

contract effectively had not been concluded.	He
went down, he wanted to look at the van.	He was
not going to draw it if it was shoddy.	He wanted

to, as he says, "look at its running gear", I think

is the expression he used, to see that the wheels

were aligned and what-have-you. He was not

concerned in looking inside, he was not concerned

about its state of cleanliness. This was all of

the evidence given, and it was given without any
objection, and it was completely objectionable, if

the contract had been entered into or, at least, if it was an issue for His Honour as to whether or not a contract had been entered into, the objection

should have been noted.

BRENNAN ACJ:  I think we understand the argument, Mr Myers.

Is there anything further you wish to put?

MR MYERS:  If Your Honours would bear with me for just one

moment. Your Honours, could I finally simply hand

up to Your Honours - I have made some reference to

it and I will not make any lengthy submission -

copies for Your Honours of Order 70 rule 11.	My
learned friends tell me they have given

Your Honours copies, and the submission is simply this, and I think I have made it and I might be

overstating it by saying it again: there has to be
evidence before the Court can make a finding under Order 70 rule 11. This was a case where the issue simply was not canvassed and it was not appropriate

for such an order to be made. They are our

submissions, may it please the Court.

BRENNAN ACJ: Yes, Mr Fleming.

MR FLEMING: Yes, if the Court pleases, may I hand up a

synopsis of our case. Your Honours, the issue

before the trial judge on our learned friend's case

was not whether the information was simply

misleading and deceptive, it was information which

was misleading and deceptive inducing a contract. At all points in time that was the case they ran.

I can highlight that in the Court of Appeal by

reference to the transcript of the proceedings
before the Court of Appeal by a couple of

references. I take Your Honours to page 2 of that

transcript. Counsel had commenced their argument

and, at about line 35, Mr Justice Davies

immediately raised the question:

And could I just ask you one other question

while I've interrupted you? How was your

client misled? Misled into what error into

doing what?

And the answer is a couple of lines down:

Tyson(2) 47 30/6/93

Into taking delivery of the van when it was not covered by insurance for his benefit.

Your Honours may then go to page 21, at about

line 42, another question by Mr Justice Davies:.

I see you alleged specifically that the

representation induced you to enter into the

agreement?

And the answer is:

Yes.

And what was said about that?

and so on. Then we can just go over to page 25.

The argument is starting about there in relation to

the broad relief under section 87, that is, it did not matter whether or not it induced the contract.

Mr Justice Davies again, at page 25, at about

line 38:

I have a bit of difficulty with that though,

Mr Lyons, just on a question of causation.

Yes.

My problem is, I suppose that is it the

conduct which has caused your client's loss or

is it his contractual obligation - the

performance of his contractual obligation -

prior contractual obligation?

And then an answer is given. Now, that is the

problem that Their Honours faced in the Court of

Appeal, because it had always been pleaded and run

- and I will come to the submissions that my

learned friend has already referred to - on the

basis that the representation induced the contract. And for the first time then, in the Court of

Appeal, there is a shift away from that, saying the

representation - it does not matter whether it

induced the contract or not, the representation was

misleading and deceptive, he pulled the trailer as

a result, and that created the problem.

Now, at the bottom of page 25, when there is

the response to Mr Justice Davies' question, over
to page 26, and the whole of page 26, is the nub of

what concerned the Court of Appeal, especially at

about line 25. It is a specific concession that

they had to make that out.

Interestingly, over at page 27, after that

discussion, Mr Justice Davies says about the

Tyson(2) 48 30/6/93

proposition that "you pulled it as a result of the

representation, not entering into the contract", at

about line 18:

In fact, in a way it's a pity that wasn't your
case, isn't it? You'd have a much better

case.

Now, at all times, the case was fought, submissions

were made, on the basis that the contract was
induced by the representation. Their Honours then

highlighted that difficulty.

Your Honours, the-e is a further difficulty in

the face of our learr:,.:: friends on that same page,

because this discuss.:  is going whether or not -: .:a

relief is open. At c._1· ·.1t line 35 there is a

response there by counsel:

Well, there may be other explanations which

weren't explored in the evidence.

What there is there is a specific concession

that there would, perhaps, have had to have been

other evidence. That is not on our case but rather

on theirs, and if ever there was a disqualifying

factor in terms of the authorities, it was coming

along on your own case and saying that we would

have called other evidence.

Your Honours, over the page again at page 28,

there is counsel in the first two paragraphs,	·
especially the second paragraph on that page.
At the top of page 45, counsel for the appellant is replying, and the discussion at
page 47, and then over to page 48, again.

TOOHEY J: What conclusion are you asking us to draw from

these pages, Mr Fleming?

MR FLEMING: That, at all times, Your Honour, the trial was

conducted, and counsel conceded, that they needed

to establish a representation inducing the

contract. That was the basis upon which they had

placed the case in the pleadings, the basis upon

which they had fought the case on the evidence, the

basis upon which they had then also submitted to

the trial judge - and I will come to the

submissions again in a moment - the basis upon

which the appeal was firstly founded and then there
was, at the last moment, an alternative claim on

the appeal saying that it did not matter that it did not induce the contract. That was the first

time that they shifted their position.

Tyson(2) 30/6/93

The concession that counsel made before the

Court of Appeal is the one which is important here,

and the specific concession is made at page 26.

GAUDRON J:  "That may well be so"?

MR FLEMING: Yes:

That may well be so. There's no finding on the point.

GAUDRON J: That is not unambiguous, is it? I would not

have read it as a concession, may be.

MR FLEMING:  Mr Justice Davies has specifically said:

Right, so you really have to rely on that.

You have to have a contract made after?

That may well be so.

There's no finding on the point.

And then there is further discussion in relation to

that.

GAUDRON J: Well, in the light of the further discussion,

whatever was there said was clarified, the "may"
was made to be clearly "may", rather than "is".

MR FLEMING:  Yes, but at all times the Court of Appeal came

back to that point and said, "This is the way you

conducted the case at trial".

GAUDRON J:  And the answer to that is, it is the way the

parties conducted the.case at the trial.

TOOHEY J:  You find that most evident on page 45.

MR FLEMING:  Yes. We do not have a difficulty with

GAUDRON J:  And the way the parties conducted it at the

trial was that it was pre-contractual unless the

later contract was established, exhibit C was

established as the contract.

MR FLEMING:  No, with respect, Your Honour. The parties

conducted it on two totally separate bases. The

plaintiff always said it was a later contract and there was no representation made. That is one of

the issues that has been overlooked here. The

plaintiff at all times contended that no such

representation was made so there was never a

concession, nor could there be an implied

concession that, therefore, there was a

representation made, pre-contractual and

Tyson(2) 50 30/6/93

post-contractual. That was not the plaintiff's

case at all.

The plaintiff said later a contract on the

16th and no representation. That is the way they

maintained their case throughout until trial and

until addresses, when faced with the critical
issues and the quality of the evidence, in fact,

and they said, "Well, we cannot make out our case

on 16 or 17 October". However -

GAUDRON J: But you did not say, "And nor can the plaintiff

make out his case".

MR FLEMING:  Your Honour, we would submit that we do not

have to go that far because the plaintiff is still

carrying the responsibility for making out their

case. It is their case that they are running.

Now, if this is founded, for example, on

estoppel, if we, for example, cannot move our

position because of estoppel, what representation

did we make to them which caused them to run their

case on a particular basis. And, of course, there

is no such representation, and that seems to be one

of the bases upon which the authorities on the

point have been developing.

The plaintiffs, at all times, accepted the

responsibility to run their case on that basis.

They did so run the case on that basis and right to

the end. If I can take Your Honours - - -

TOOHEY J:  What do you mean by "run their case", Mr Fleming?

MR FLEMING: Sorry, the defendants.

TOOHEY J:  Oh, the defendants.

MR FLEMING: Yes, the defendants, I am sorry, yes. Could I

go to the defendant's submissions made to the

trial - - -

GAUDRON J: But was not your case also, "If the

representation was made on that date, well, it was

pre-contractual. We do not raise any issue as to

whether it was contractual or pre-contractual"?

MR FLEMING:  No, Your Honour, because the plaintiff never

got around to that point.	The plaintiff said, "The
representation was not made, full stop".	And it

never did get around to submitting anything in

respect of an alternative.

GAUDRON J:  Well, it certainly did not submit that it was

not pre-contractual.

Tyson(2) 51 30/6/93

MR FLEMING:	No, that was an issue which was accepted -
GAUDRON J:	It was a submission that it was open to you make, was open to counsel then representing your
client to make at the trial, and it was not made.

MR FLEMING:  Yes, it may have been. No, it was not made.

GAUDRON J:  And no finding was sought that the contract had

been made on the earlier day?

MR FLEMING:  The only finding sought was that the

representation was never made. That is the

position always contended for by the plaintiff.

The representation was never made, and it did not

shift from that position, it made no concessions by

even putting in an alternative submission. It

simply said it was not made.

What our learned friends are really saying is,

because a plaintiff takes that position, that then

relieves them from establishing their case as it is

pleaded. And, with respect, we say that that is

not valid.

GAUDRON J: But that is not exactly right, is it,

Mr Fleming? They led evidence which was sufficient to make out their case. It was sufficient.

MR FLEMING: Yes.

GAUDRON J:  The finding on the evidence, the evidence was

such as to be capable of supporting a finding of

pre-contractual representation. It was capable of

supporting such a finding.

MR FLEMING:  On the plaintiff's case? Sorry, the

defendant's case?

GAUDRON J: Yes.

MR FLEMING: There was certainly evidence. Whether or not

it was capable of - - -

GAUDRON J: But it was capable, was it not.

MR FLEMING: Well, we would not go so far as to say that, we

would - - -

GAUDRON J: Well, you never made a submission to that effect

before the trial judge.

MR FLEMING:	No, that submission was not made.
GAUDRON J:	And you never made a submission that a finding

should be made that the contract was entered into

on the 10th.

Tyson(2)	30/6/93
MR FLEMING:	No, because the plaintiff had always adopted

another stand in respect of it and would not be
moved from that stand, although the plaintiff
apparently did abandon the contract made on the

16th.

GAUDRON J: But there was no difficulty about making

submissions, as distinct from calling evidence, or

indeed, pleading it. There was no difficulty,

there was no inconsistency with the evidentiary

case and the arguments that were not taken.

MR FLEMING:  No, Your Honour. We accept that, but the

plaintiff certainly did not make those submissions.

There is no doubt about that.

GAUDRON J:  And it was not because they would be

inconsistent with the evidentiary case?

MR FLEMING:  It was because they maintained that the

representation was not made.

GAUDRON J: Yes, but there was no inconsistency between

making those submissions and making the case that

no representation had been made?

MR FLEMING:  No. We concede that, Your Honour, but the

reason why, and it is purely a reason why, is that
the plaintiff always maintained the representations
were not made and so, therefore, the issue did not

arise for them as to when the contract was made,

whether it was made before or after

representations, because they were not made. That

was their simple position and they made no

submissions on the other issues.

But, Your Honours, the defendant always

accepted the responsibility to establish that it

was the representation which induced the contract.

And that appears from their own submissions,

starting at page 1 of those submissions, that is at

page 71 of the additional record that our learned

friends - no, I am sorry, that was a document that

our learned friends handed up separately.

TOOHEY J: But, certainly in the area of common law claims

and misrepresentation, although counsel ritually

take the plaintiff through his or her evidence and

ask about inducement and so on, there is quite a

lot of authority, is there not, that if the

statement is material then inducement is really

presumed? How far that is applicable to cases

under the Trade Practices Act is another matter.

MR FLEMING:  I am sorry, Your Honour, I am not prepared to

argue that point because - - -

Tyson(2)	53	30/6/93
TOOHEY J:	I am not inviting you to.	I was just making a

comment that you seem to be suggesting that, by

accepting the responsibility of demonstrating

inducement, the defendants were, as it were, taking

some quite heavy burden on themselves.

MR FLEMING:  Yes. Perhaps I have not quite stated it

correctly. It is the loss flowing as well, and

Mr Justice Davies' problem was, "Did the loss flow

from the performance of the plaintiff's contractual

obligations or did the loss flow from towing the

trailei as a result of the representation?" Now,

that was what His Honour concerned about and said

that the defendant had always said that it induced

the contract and it left, then, a gap in the

process.

Now that is why, apparently, the Court of

Appeal went on to say, "Well, is that the case?"

and make a finding of fact in respect of that.

That was the dilemma that they faced. They faced

that dilemma because the defendant had always said

that representation induced the contract.

One can ask, "Well, so what?" Does the loss

then flow from the performance of contractual
obligations or does the loss flow from the fact

that he pulled the trailer without any insurance?

Now, if that issue had been alive at the trial,

there may well have been other evidence in relation to that. For example, had he ever pulled any other

trailer without any insurance, had he been in this

position before, what were his claims, what was his

attitude?

Now, that is what Mr Lyons seems to be conceding as well because that might have turned on

the actual terms of the contract. If we go back to

the contract and look at how much, for example, has

been paid, that may well have determined that

issue. So, on that point, even counsel for the

appellant before the Court of Appeal conceded that

more evidence had to be called.

So that the issue which was always fought in

all courts, at least up until the supplementary

synopsis was put in the day before the appeal, was

that it was a pre-contractual representation, and that was an important issue, and that is what the

Court of Appeal settled on.

TOOHEY J: But what Mr Lyons is saying at page 45,

Mr Fleming, is that, in response to a question from

Mr Justice Davies - I will read the third line of

that particular passage:

Tyson(2) 54 30/6/93

As the case was fought before His Honour and

as it was dealt with by His Honour, the

approach that was taken was that it was dealt

with as an antecedent negotiation or

statement, and that seems to be the basis on

which people conducted the case. The issue

then is whether in fact the representation was

made.

That is really the case that is being put against you.

MR FLEMING:  Yes but, Your Honour, prior to that, on the

same page, it is put directly to Mr Lyons:

But it had to be an issue, you've conceded,

for you to succeed.

Mr Lyons had said at line 15 - perhaps one has to

go up a little higher:

Can I just add something to that? You said in

your submissions, and I didn't appreciate this

point until the presiding Judge pointed out to

me what you said in your pleadings, but you

made it an issue as to when the contract was
made.

On the pleadings, it was made an issue, but the way the trial was conducted, that was not

the issue. The issue at the trial was whether

the representation was made at all.

TOOHEY J: Well, that is consistent with what is said

further down the page,· is it not?

MR FLEMING:  But he had already made, as Mr Justice Davies

then put to him:

But it had to be an issue, you've conceded,

for you to succeed.

Mr Justice McPherson then came in as well:

Yes, on one theory you failed to prove your

case within your pleadings.

Now, that is what the Court of Appeal finally

decided. If, in fact, that is the case, and

Your Honours can find that at page 101 - this was,

as I understood, initially argued on special leave

on the basis that some how or another the Court of

Appeal had to determine whether or not it was a pre

or post-contractual representation for the purposes

of relief under the Trade Practices Act, but that

is not the case at all.	The Court of Appeal did
not do that.	They simply said, at page 100:

Tyson(2) 55 30/6/93

However, even if accepted, there is another obstacle.

The passage there following. There is then a

reference to the pleading. Then Their Honours say,

immediately after the extract of the pleading,

"From this it is quite clear." So, all the court

has done is to say, "Well, we are going to bind you

to your pleading and, in fact, to the manner in

which you have conducted the trial because that is

the issue that the defendant fought at the trial".

Your Honours, that is the issue and I was

going to take you to our learned friend's

submissions at the trial. On the very first page:

The fundamental submission that is made on

behalf of the First Defendant is that he will
be found to have accurately recounted the

circumstances in which he entered into the

contractual relationship with the Plaintiff.

And then there is the reference to the workshop,

over at page 2. Then going on to page 4, in this

question of bailment, the first complete paragraph

on page 4, about eight lines into that:

He would never have entered into contractual

arrangements unless he received that

assurance.

GAUDRON J:	What are you reading from, Mr Fleming?
MR FLEMING:	These are the first defendant's submissions

before the trial judge.

GAUDRON J: Thank you.

MR FLEMING: At page 4, at about point 3 of the page.

Page 5, again in the first few lines:

Had it not received an assurance ..... it would

not have entered into the contract.

Page 7, immediately above and after "Express Term".

Page 10, it had to be a contractual term, in

effect. Page 12, after:

Beyond 11th October -

at about point 3 on the page.

TOOHEY J:  Mr Fleming, did the defendant's counsel speak to

these written submissions, or were they simply

handed in lieu of oral submissions?

Tyson(2) 56 30/6/93

MR FLEMING:  They were spoken to, Your Honour.

Your Honours, in the summary at page 19 in that

first paragraph. The first defendant at all times

accepted that responsibility, and that becomes

clear as well from the pleadings. Our learned
friends have already referred, Your Honours - and,

indeed, it has come out in the judgment of the

Court of Appeal, if we go to the record at page 15,
paragraphs lB and lC - they have already been
looked at. Paragraph 2, immediately after that:

It was a term of the agreement referred to in paragraph 2 -

that certain things happened. Paragraph 2A,

paragraph 2D. Paragraph 2E is the:

making the said representation -

and the requirements are set out -

was false, misleading.

Paragraph 2F:

The said representation induced the First

Defendant to enter into the said agreement to transport.

At page 24 in the amended reply and answer, Your

Honours will see that those issues are made issues

by paragraph 1. Your Honours have then been

referred already, I think, to the further and

better particulars. Our learned friend took you to

that in support of that.

We refer you especially to their own further

and better particulars. That seems to be in the

additional document that was handed up to

Your Honours, at page 51, I think, of that

additional record that Your Honours had handed to

you. It goes, again, to the fact that the

insurance was a term of the contract. And in the

second document, at page 54, paragraph 2, and then

page 55, Your Honours, they bound themselves well

and truly to that case, and that is the case that

they did, in fact, run as is shown from the

documentation.

Even then, when one comes to page 56 of that

document, which is the appellant's summary, it is

still couched in terms of it being an expressed

term. One can go to paragraph 8 for the summary of

that, at page 58. These are the notes that were

put to the appeal court.

Tyson(2) 57 30/6/93

There is an interesting procedure now, here in

Queensland, in Court of Appeal matters. Once the

notice of appeal goes in, within 14 days an

appellant must do his argument in writing and

submit that to the court and give it to the other

side. Then they have, I think, another 14 days

within which to reply and so they formulate their

argument very early on as well. This is the

document which appears to have been formulated as a

result of that. That might become an issue if the

notice of contention becomes an issue under
order 70, on the part of the respondent. Certainly

the respondent then raised, in their synopsis, at

page 63 of that additional document, at paragraph

6:

Even if the misrepresentation was considered

misleading -

and that brought - I am told that that similar

issue appears at page 60 on that document as well;

yes, at (d).

And then very late, just before the Court sat

to hear this matter, the day before the alternative
issue was put, and then it was said that the case

was not run below upon the basis of the date of the

contract being in issue. That might be a precise

and accurate statement but what the case always was

run on was the basis that the representation

induced the contract. Your Honours, we have made

reference to the cases and if one has regard to

Coulton v Holcombe and the tests there about changing one's position, we submit that it was not the defendant who was changing his position because

he could hold his judgment whichever way he can,

but rather for the first time - I am sorry, it was

not the plaintiff who was changing his position, it

was the defendant who was changing his position for

the first time at the Court of Appeal, and he,

therefore, is caught by the principles as set out

in Coulton v Holcombe and confirmed in Banque

Commerciale S.A.

Really, when one goes to that case, that is

(1991) 169 CLR 279, in the joint judgment of the

Chief Justice and Justice Gaudron at page 284,

immediately under the reference:

It is necessary to note the decision in Water

Board v Moustakas -

and between there and the reference between Suttor

v Gundowda on that page, then immediately after the

cases there cited as well after O'Brien v

Komesaroff.

Tyson(2) 58 30/6/93

Your Honours, if the matter is then to be

determined by way of estoppel there has not been

any representation that the case will be run in a particular way. In fact, if there was, there was certainly no reliance because the defendant still

chose to run its case according to its pleadings.

It is our submission, therefore, that no estoppel

could be made out and no other ground can be made

out either in relation to that.

The fact finding engaged in by the Court of

Appeal ·may not have even been necessary for that

purpose, it might have been a superfluous exercise.

They might have equally been able to say "You do not have a finding in your favour on that point,

therefore, on your own case, you cannot succeed".

What the Court of Appeal did was to go one step

further and say "You do not have a finding, we can
in fact make that finding because you bore the onus

of that, you have carried all of the evidence in

respect of that" and they could reasonably assume

that all of the evidence would properly be there. On that basis the Court of Appeal could have done

what they did in any event under Order 70 rule 11.

Finally, Your Honours, it is complained on

some basis that there was a denial of natural

justice. There never was any request whatsoever

for adjournment, amendment, referral back to the

trial judge for further evidence to be called

before the Court of Appeal. Indeed, given the way

the case had been run previously, one can see why

some of that certainly could not have happened.	It
is our submission, ultimately, that any principle
upon which our learned friends attempt to rely
catches them fairly because they, for the first time, are shifting their ground.

Your Honours, if I may just ask you to note a

couple of other lines, without taking you to them

in the transcript before the Court of Appeal, which

relate to this as well. There are items at page 7,

line 58 to page 9, line 18; page 19, line 20 to

page 22, line 20. Then I think I have already

referred Your Honours to the other matters out of

that transcript.

Your Honours, there are, as Justice McHugh has

already said, other issues involved in this and we

would submit, for the reasons that have already
been suggested, that the trial judge in this case

was not shown to be wrong in his approach to the

matter because what the defendant really has to

say, that somehow or another the question that he

was framing had something to do with subrogation

and the right of an insurer against him, that he

simply cannot get that far out of the evidence as

Tyson(2) 59 30/6/93

it stands, and we would say for that reason as well

the appeal ought to be dismissed.	Your Honours,
they are our submissions.

BRENNAN ACJ:  Thank you Mr Fleming. Yes, Mr Myers.

MR MYERS:  Thank you. Your Honours, special leave was

granted on an exceptionally limited basis, as

Your Honours will be aware, and we have not argued, and it is not incumbent in our respectful

submission for the Court to take into consideration
the question of whether or not the conduct was

misleading and deceptive in deciding the present

matter. The only basis upon which the respondents

could obtain a finding that the conversation was

post-contractual was as a result of the specific

finding of fact that the contract for which they

were contending had not been made out.

There is no suggestion of the issue as to the

date of contract having been overlooked; evidence

was given on it, without objection, which would

have supported a finding. No specific finding was

made and that simply reflected the basis upon which

the trial was conducted and could I, without taking

Your Honours to it, give Your Honours the reference

to the transcript before the Court of Appeal at

page 38, line 38, which was the concession of the

basis upon which the trial was conducted.

It is simply not correct to say that there was

not an alternative argument if His Honour found

that the conversation with Roles did take place

and, Your Honours, again, I will simply give you

the reference to page·s, paragraph 5 of the

plaintiff's submissions at trial. What our learned

friends addressed specifically to Your Honour

Justice Gaudron is simply not correct. That was the alternative, that if the conversation did take

place that it did not constitute misleading and

deceptive conduct.

Your Honours, the final matter was that

question of inducement and acting on the

inducement. The matter was really addressed

yesterday but the inducement question was put to

Mr Tyson at page 52, line 28 and his answer,

although as I can see it is not completely

responsive, is to be treated, in our respectful

submission, as his reliance upon the inducement.

They are our submissions by way of a reply.

BRENNAN ACJ:  Thank you Mr Myers. The Court will consider

its decision in this matter.

AT 12.10 PM THE MATTER WAS ADJOURNED SINE DIE

Tyson(2) 60 30/6/93