Tyson & Anor v Brisbane Market Freight Brokers Pty Ltd

[1993] HCATrans 176

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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

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 29 JUNE 1993, AT 3.56 PM

Copyright in the High Court of Australia

Tyson(2) 1 29/6/93

MR R.A. MYERS:  May it please the Court, I appear with my

learned friend, MR P.O. BAKER, for the appellant.

(instructed by Baker O'Brien & Toll)

MR K.C. FLEMING, QC: If the Court pleases, I appear with my

learned junior, MR N.F. NUNAN, for the respondent.

(instructed by Biggs & Biggs Francis & McGregor)

BRENNAN ACJ:	Mr Myers.
MR MYERS:	May it please the Court, I have prepared a

synopsis of argument. If I might hand up a copy

for each of Your Honours.

Could I take Your Honours initially to·the

statement of claim in an endeavour to define for

Your Honours the issues that were before

His Honour Judge Bbyce at the trial initially.

Could I take Your Honours to page 4 of the record,

and to paragraph 2 of the statement of claim in its

original form, and as Your Honours will see it was

not altered by amendment, which alleged the

agreement under which the appellant and the

respondent came into terms.

It was alleged by the plaintiff at that time

that:

By an agreement entered into between the

Plaintiff and the First Defendant the First

Defendant agreed to transport the Plaintiff's

said Maxi-Cube pantechnicon van and trailer to

various places specified by the Plaintiff for

the purposes of collecting and delivering

produce for reward.

There was no date alleged in the statement of

claim as Your Honours will see, and further and

better particulars were sought and, Your Honours,

they were provided in a document, which appears at

page 12 of the record, and if I might take the

Court to that. It is perhaps necessary to have

some reference to the request which appears at

page 9, although I think it is correct to say that

the document speaks for itself.

It was contended in relation to the agreement

referred to in paragraph 2 of the statement of

claim that it was a written agreement. There were

no oral terms, as Your Honours will see, and at

subparagraph (c)(i) the written contract was set to

be constituted by:

A document entitled "An Important

Introduction" and a document entitled

Tyson(2) 2 29/6/93

"Brisbane Market Freight Brokers

Sub-Contractors Manual" dated 7th July 1986, -

and a subsequent amendment that was amended to

include:

both undercover of a letter from the Plaintiff dated 16th October 1986 signed by J. Gardener,

a servant of the Plaintiff.

Now, that was the only contract for which the

respondent contended on the trial. A document

which was said to have been forwarded on

16 October, 1986 and by the reply and answer which,

Your Honours, will see at page 24 of the record

alleged to have been served on the appellant in due

course of post on 17 October, 1986. Your Honours

will see that at page 25 of the record, the very

first paragraph orr that page.

Your Honours, the respondent on the hearing before the Court of Appeal contended quite to the

contrary to what Your Honours have seen there

pleaded, and that may well have led the Court of

Appeal into the error which, it is submitted, on

behalf of the appellants the Court of Appeal

ultimately made.

Could I take Your Honours to the document that

has been supplied as a supplementary record, which

is the transcript of the argument before the Court

of Appeal, and could I take Your Honours to page 35
of that supplementary record. Your Honours will see at the bottom of page 35 Mr Justice Moynihan

first raised what transpired to be perhaps

something of a problem.

Well, if you look at the top of page 24 too

you have got Tyson saying:

When were you told to pick up the

pantechnicon?

This is in response to the respondent's counsel.

He told me on the phone when it was available

to be picked up the following day, which would

have been the 11th. I got up early in the

morning and drove down there, and arrived in

the shed and said, "I am so and so, I have

come to pick up the pan".

His Honour then said:

I mean the evidence.

Tyson(2) 29/6/93

It is difficult to escape the evidence

having a flavour that the contract had been
concluded when the conversation took place with
Roles about insurance.

I asked. Mr Justice McPherson then said:

But was not this really an issue at the trial?

The respondent's counsel said:

It was not an issue at the trial, because .....

Mr Justice McPherson:  Was it?

It was not, because Mr Roles said, "Look this

meeting did not take place".

Justice Davies sai~:

Well, another reason why it was not an issue - I would think it should read -

because you alleged a new contract at a later

date.

Now, with respect, His Honour was quite right in

saying that.

The respondent's counsel replied:

Well, I was alleging an estoppel at a later

date.

No, you were alleging a contract made at a

later date. The contract is based upon the

standard terms and conditions -

I think it should be "contained" -

in your manual, whatever it is called.

MR NUNAN: Well, that was saying, if that

particular defence is correct, and the manual

was not received at the time of contracting or

shortly thereafter, then it was sent on-

17 October, it would have been received on

17 October-----

And Justice Davies asked:

Not put as an alternative defence. Alleged

specifically at those terms of the manual or

terms of the contract.

Tyson(2) 4 29/6/93

McPHERSON JA: Yes, the Bon 2 says, "Agreed

to insure". Could not have agreed to insure
it on the terms of the manual, earlier than

the date on which the manual was received, I

would have thought.

And Mr Nunan then said - and, with respect,

Your Honours, this perhaps is the start of the

error:

Perhaps there is some infelicity of language

there. It certainly was not intended to plead

an agreement as and when that was received.

Now, as Your Honours will see, that is really quite

wrong. It was not what the statement of claim

says, and it was not what the further and better

particulars of the statement of claims say, but the

error was, in fact., perpetuated.

DAVIES JA: Wasn't?

MR NUNAN:  No .

McPHERSON JA: It was intended to plead an

agreement though, was it not?

Well, it was intended to plead the receipt of the manual.

McPHERSON JA: Yes.

MR NUNAN: And-----

DAVIES JA:  And thereby having contractual

force, or not?

MR NUNAN: Well, having that brought to his

attention, and thereby being unable to retreat

from the position that he had knowledge of it.

DAVIES JA: Well, how is that, it could not be	relevant though, could it, if he had knowledge
of it after all the contract and its terms had
been fixed?
McPHERSON JA: It would be unilateral attempt
to add a term to a contract already concluded
before the term was presented to the opposite
party.
DAVIES JA: So if you are alleging estoppel,
you are either alleging that this took place
before the contract was made, or at the same
time, would you not?

Tyson(2) 29/6/93

MR NUNAN: Estoppel can be constituted by

conduct after the initial contract is entered

into.

DAVIES JA: But not - you are not suggesting

for a moment that it is contrary to the

express terms of the agreement made by the

parties? That is what you are really saying,

is it not? You are saying that the other side

was estopped from denying that the terms

contained in this document, were terms of the

contract between the parties, are you not?

MR NUNAN:  Yes. But His Honour found that it

was not received.

DAVIES JA:	No. No, it is not a question of -
it is not a question of that though.	We are

really just trying to understand, or I am,

what was an issue at the trial, and in

particular, what with respect to the date on

which the contract was made was a issue at the

trial. Because you will appreciate that of

course, it is quite important to this case

when this contract was made.

Now, may I pause there, Your Honours, because

His Honour Mr Justice Davies then formulates what,

in our submission, is the proper formulation of the

issues before the district court judge.

If it was made and completed before the

alleged misleading conduct, then the appellant

is in difficulty in this appeal, or so it

seems to me. It was made - if the contract

was made after the alleged misleading conduct,

or there is no evidence about when the

contract was made and it was not an issue,

then it might be a different matter. That is

why it becomes, it seems to me, quite

important.

McPHERSON JA:	You, you would have to----
MR NUNAN:	But this is a separate issue, this

receipt of a subcontractor's manual, to that

question.

Well, again, if I might interpolate, it certainly

was not. It was the plaintiff respondent's case.

McPHERSON JA:  You would have to be alleging a

variation to get - suppose there is an

agreement which we would assume does not

include this term, and then later you forward

a document containing this term, and you say,

Tyson(2) 6 29/6/93

"Well, that really became a part of the

agreement". You say by estoppel.

But, what you are alleging is, that the

parties have, by their conduct, varied the

original contract so as to include a new term in it, or that the defendant is estopped from asserting that the term - that the contract

was not varied so as to include that term.

You would have to go so far as to set up a variation of the original agreement, either by

a fresh agreement or possibly by estoppel.

You would be alleging a variation of the

agreement.

MR NUNAN: Well, not necessarily, because if

they received the manual and do not read it

for instance,. then there is no variation.	The
estoppel goes-wider than that. If they received the document-----
McPHERSON JA:	But, if they received the

manual and they do read it-----

MR NUNAN: Certainly there would be a

variation then.

McPHERSON JA: -----that can't possibly alter

the contract unless they agree to vary it or

there is an estoppel.

MR NUNAN: Certainly that - yes, that could

constitute a variation, but the-----

McPHERSON JA: But how else could you rely on

estoppel? How else did you rely on estoppel

by this pleading.

MR NUNAN: Well, by the document being

received, being specifically referring to the

McPHERSON JA: Which had already been made.	contractual arrangements between the parties.
MR NUNAN:  Yes. And not being read or
understood.
McPHERSON JA: And with what consequence?
MR NUNAN: With the consequence that they then - the plaintiff acted to its detriment by
continuing to allow them to travel backwards
and forwards with their van uninsured.
McPHERSON JA: But I mean if I make a contract
with you, and then you try to add another term by saying, "I also want this to be a term", or

Tyson(2) 7 29/6/93

"I also assert that this is a term". And I

say, "Well I am not going to take any notice

of that, because it's not a term". You can't

get an estoppal out of the fact that I go on
dealing with you on what might be described as

the original terms, asserting that I'm not

bound by the other term that you tried to add,

or simply not saying anything about it,

because I know my rights, I've got a contract

on the original terms. That's the problem you

have I'd say.

DAVIES JA:  So in any event, is it common

ground really, that the date upon which the

contract was made was really not an issue at

the trial?

MR NUNAN: That's correct, yes.

McPHERSON JA:	You can't rely on it now then,
can you?

Mr NUNAN: Well, I can rely on it in the sense

that it's circumstances surrounding this conduct, as to whether or not the actual

conduct constitutes misleading -

and I think it should be "and deceptive" -

conduct. You have to look at the overall

circumstances of the case to see whether it

was reasonable, what was said, and what was

understood.

DAVIES JA:  So it may be that the appellant

had the obligation to prove that the date on

which the contract was made, and in particular

that it was made after the alleged misleading

conduct. I don't know. It's only alleged

misleading conduct.

And that is really where His Honour, in our

submission, having been misled, not to put too

strong a term on it, about the issues at the trial

first formulated this proposition that there was

some onus of proving an issue as to the date on

which the contract was entered into placed upon the

appellant.

Your Honours will see from the top of that

page 39 that the respondents were contending that

the only relevance of the plea relating to estoppel

and the despatching of the written material on

16 October, 1986 - five days after the alleged

contestation between the appellant and the

respondent was in relation to the quality, in

effect, of the misleading and deceptive conduct,

Tyson(2) 29/6/93

and that was quite wrong.	It was essential to the
issues in this case.

BRENNAN ACJ:	What was your case, Mr Myers?
MR MYERS:	Your Honours, our case was that the contract had

not been formed by 11 October 1986. Their Honours,

ultimately, were not satisfied that that was so,

but as we have said in the written submissions, and

I certainly intend to develop it and take Your

Honours to the record, what was common ground between the parties is that the conduct, whenever

it occurred, and one of the major questions of - if

it did occur, because Mr Roles denied it

entirelythe common ground was that it was pre-

contractual. The respondent plaintiff was

contending for a contract that was entirely

written, entered into on or about 17 October 1986.

The appellant, th~ first defendant in the court

below, was contending for a contract that was

formed subsequent to the conversation on

11 October.

BRENNAN ACJ: With what results? What is the result of that

conversation, if established?

MR MYERS:  Your Honour, the simple conversation was Mr Tyson

saying to Mr Roles - -

BRENNAN ACJ: Yes, I understand what it was, but what does

it lead to - inclusion of a term in the contract?

MR MYERS:  Yes. We contended that it was a contractual

term.

BRENNAN ACJ:	Did you plead that?
MR MYERS:	Yes, and the respondent, the plaintiff in the court below, met that with a reply and answer, as
Yours Honours would expect, that if, in fact, it
was a turn at some stage on or about 11 October
1986, perhaps it would be suggested we were
estopped from relying upon it, because on 17
October we entered into a written contract which
imposed the obligation to insure upon us.

BRENNAN ACJ: So, on your case there are two questions: one

was whether the statement had been made which was

incorporated into the contract, and the second was

whether the statement, as made and so incorporated, bore the meaning that the insurance policy was such as to indemnify your client?

MR MYERS:  Yes. Probably not, that is perhaps

over-simplifying it, Your Honour, because

ultimately, in our submission, the issue that was

left to the trial judge - there were a number of

Tyson(2) 9 29/6/93

issues raised, as Your Honours would appreciate

concerning the Insurance Contracts Act and the like

but ultimately the appeal before the Court of

Appeal was conducted upon the basis that this

conversation between Roles and Tyson was misleading

and deceptive, and that was the only issue

ultimately before Their Honours.

In so far as that issue went before His Honour

the trial judge, it was simply one of whether or

not the conversation took place and, if it did take

place, whether it was misleading and deceptive.

BRENNAN ACJ: That is what I was wondering. Is it a case of

terms of the contract or is it some cause of action

based on the Trade Practices Act?

MR MYERS:  The latter. It was pleaded as one in relation to

the terms of the contract and ultimately that was

the point seized upon by His Honour Justice Davies,

but it is submitted that that was never in issue at

the trial. Your Honours, quite simply, there was

no need for the misleading and deceptive conduct to

have been pre-contractual.

BRENNAN ACJ: Well, what was your case, that there was

misleading and deceptive conduct. under section 52

which was productive of damage?

MR MYERS:	Yes.
BRENNAN ACJ:	And how did you prove the connection between

the statement and the loss?

MR MYERS: Because, in reliance upon the statement, we

carted the trailer, we pulled the trailer and, of

course, we did not and this was, of course, an

issue raised by Justice Moynihan on the trial.	We
did not arrange any insurance.

Whenever the conversation took place, be it

post- or pre-contractual, had the truth been told

to Mr Tyson at any relevant time, he could have,

perhaps, refused to pull the trailer although that

may have given rise to questions to breach of

contract, which again were not canvassed at the

trial because it never was an issue. But perhaps,

without breaching the contract in any way, he could

have arranged for his own insurance.

TOOHEY J: But you use the expression "cause of action",

Mr Myers, which is not really accurate, is it

because these were matters raised by your clients

by way of defence to an action against them?

Tyson(2) 10 29/6/93

MR MYERS:  Yes, I am sorry, I certainly did use that term

loosely. It was not a section 82 cause of action,

in effect, it was simply a section 87 defence.

BRENNAN ACJ: Well, I must confess that leaves me quite

confused. How do you get a defence out of

section 87 of the Trade Practices Act to a cause of

action that is based on either negligence or breach

of bailment?

MR MYERS: Because, Your Honour, the negligence or breach of

bailment gives rise to loss and damage, and that

loss and damage has been caused, within the meaning

of that term as this Court has now considered in

March v Stramare, by the misleading and deceptive

conduct in that, if one wants to take simply one of

the two legs, we did not go out and arrange the

insurance which would have protected us from the

loss and damage.

BRENNAN ACJ: Well, there were two causes then: one is the

negligence .and one is a breach of section 52. Why

does the Trade Practices Act give you a defence?

MR MYERS:  Within the principle discussed by this Court in

March, that is sufficient if it is one of the

causes.

BRENNAN AJC:	What if there are two causes, the party who is liable for one, has a defence to the cause of
action based on the other?
MR MYERS:	If, without the misleading and deceptive conduct,

the loss would not have occurred, yes, Your Honour.

McHUGH J:  I would have thought that you would have had to

plead it, a plea in bar to avoid security of

action, is it not, the old way the pleaders used to

do it?

MR MYERS:  Yes. Your Honour, as it has turned out, because

of the way the trial was conducted of course, no

amendments were considered, no amendments were

considered on the hearing of the appeal but, of
course, had the trial been conducted on a different

basis, and I will take Your Honours through the

evidence in due course, but there was not a

question raised at any time of the date. All of

the evidence was directed to the issue of the

quality of the representation, both sides

contending, although for different dates, that all
of the conduct was pre-contractual.

TOOHEY J: Just again, to keep the argument on the rails,

Mr Myers, you said in answer to Justice Brennan or

used the expression "negligence and trade

practices". But negligence was not a defence

Tyson(2) 11 29/6/93

pleaded by your clients, was it? They were sued,

first, in negligence and, secondly, in breach of

contract. To that they pleaded by way of defence

only, not by way of counter-claim or cross-action,

the Trade Practices Act and a plea of estoppel.

MR MYERS:  Yes, and negligence was admitted. Your Honours

will see from the transcript in due course that it

was really a trial where there was the one

essential issue, and that is what makes the

appellant's point even more substantial.

Negligence was admitted, the value of the loss was

admitted.

Ultimately, the principal issue for

determination by His Honour, leaving aside the
insurance contracts provisions, was the quality of

the representation that was made.

TOOHEY J: There is a question, and it does not seem to be a

question that loomed large before the courts below,

and may or may not be a question before us, and

that is the extent to which misleading or deceptive

conduct could operate as an answer to the

plaintiff's claim against you. But it is right to

say, is it, that that was not an issue, as distinct

from the argument as to whether or not the conduct

complained of could constitute misleading or

deceptive conduct?

As I understand it, there was not an

independent argument raised that if there was

misleading or deceptive conduct it did not provide

an answer to your clients.	Does that state the
position accurately, or not?

MR MYERS: It does, Your Honour. Could I attach this rider

to it? That was certainly never an issue before

the trial judge. It was certainly raised as an

issue by the Court of Appeal and addressed by

Mr Lyons on behalf of the appellants in the Court	of Appeal, that is, whether section 87 provided a	defence and, really, what was the relief that we
were seeking.

Mr Lyons said that, really, you could seek

four separate kinds of relief under section 87 and,

I think, ultimately made the submission that the easiest way for the court to resolve it was simply

to dismiss the plaintiff's claim against the

defendant which would be - - -

TOOHEY J: But, presumably the Court of Appeal did not reach

that point because of the view it took as to when

the statement was made or, more accurately, your

client's failure to identify when it was made.

Tyson(2) 12 29/6/93

MR MYERS: That is correct, but to really answer

Your Honour's initial question, before

His Honour Judge Boyce the only issue, on this

point, was the quality of the conduct, and I think

it was probably common ground to say, if His Honour

arrived at the conclusion that the quality of the

conduct was misleading and deceptive within the

provisions of section 52, that the plaintiff's

claim should simply be dismissed.	The relief was
not discussed in terms.	Your Honours, there were
written submissions - - -

BRENNAN ACJ:	Was that common ground?
MR MYERS:	Yes, well I am certain it is, but I was going to

say to Your Honours there were written submissions

made before Judge Boyce and I will undertake to put

both sets of written submissions before

Your Honours, tomorrow morning if that is -

BRENNAN ACJ: Well, it seems to me to be of critical

importance to discover whether that was common

ground bec~use, if the issue at the trial was

simply whether or not there had been, whenever,

misleading or deceptive conduct, that is one point,
but if the question of the relief that could come
from conduct that is misleading or deceptive
includes a consideration of when that conduct

occurred, we are in a different line of country.

MR MYERS:  Yes, well, my understanding is that perhaps I

should really allow my friend to respond on what

their contention is, but the appellant's contention

is that it was certainly common ground at the

trial.

DAWSON J: Sorry, what was common ground?

MR MYERS:  That it was common ground, that the nature of the

relief was not in issue, it was really a question

of construing the quality of the conduct of

Mr Roles.

DAWSON J: That is, that misleading or deceptive conduct is

a defence to an action in negligence?

MR MYERS:  Yes.

DAWSON J: Is there something in section 87 that says that?

I have just called for it.

GAUDRON J:  Why would it not be cross actions and equal sums

which would bring about a result?

MR MYERS:  Your Honour, that was one of the bases that - I

think, as Mr Lyons put it, that was probably the

more correct way to do it, but he ultimately said

to the Court of Appeal - and let me say this was

Tyson(2) 13 29/6/93

never an issue before the trial judge so it was not

put in any way before him, but Mr Lyons ultimately

said in the course of his submissions to the Court

of Appeal that although you could perhaps look at

it in three or four ways, it had the same result.

Your Honour, perhaps the better way to look at

it would be that the appellant had an action

pursuant to section 82 of the Trade Practices Act

and, effectively, when judgment was given against

him in the negligence action for $71,000 he was

then entitled, pursuant to provisions of section 82

of the Trade Practices Act to bring his own action

or, in effect, a counter-claim and receive a

judgment in that amount.

In our respectful submission, the powers under

section 87(l)(e), I think it was, for which it was

contended - - -

BRENNAN ACJ:  Mr Myers, could I just take you to page 52 of

the appeal book, because this seems to me to raise
the problem. Half way down that page there is what

seems to me to be a critical question:

Mr Tyson, would you have entered into this

agreement with Brisbane Market Freight

Brokers had you not been told that the van was

insured?

Answer:

If I had been told it wasn't insured I

wouldn't have entered - I wouldn't have pulled

it.

Now, if the case that was being put on your part

was that the question for determination was would

he have entered into the contract but for the

misleading conduct, then it is transparent that the

time when the misleading conduct took place is

critical.

If, on the other hand, it is that he would not

have pulled it, that is, pulled the pantechnicon,

but for the misleading conduct, then it may be

common ground that, if he did pull it by reason of

misleading conduct, that you have got a cross claim

or a defence. Now, we really need to know that.

we want to find out what the basis was of you

defence before Judge Boyce.

MR MYERS:	Your Honour, the appellant's submission is, of course, that the common ground before
His Honour Judge Boyce was that the conduct was
pre-contractual. Your Honours, that question,
although it seems ultimately the Court of Appeal

Tyson(2) 14 29/6/93

made a deal out of that question having said at the

outset that it is clearly equivocal, that was

really the linchpin, effectively, that justified

their decision. They went, as Your Honours will

see at page 52, line 28 - but, Your Honours, could

I say a number of things about that question?

It is the essential question that has to be

asked in inducement cases. If, in fact, it was the

respondent's contention that the conversation was

post-contractual, it was objectionable in the

extreme. It is the sort of question that one

concludes cross-examination with in any inducement

case: "Would you have entered into the contract to

purchase the business had you not been told that

the takings were $80,000 per annum", to demonstrate

reliance.

TOOHEY J: You do not mean cross-examination. I think you

mean examination in-chief, do you not?	It would be
a very dangerous question to ask in cross-examination.

MR MYERS:  I am sorry, Your Honour, it would be indeed. It

is the essential question that has to be asked at

the conclusion of the examination in-chief, and it

was grossly leading and grossly objectionable if

there was an issue in the case that the contract

had, by that stage, been concluded because it says,

"Would you have entered into the agreement?". And

it demonstrates that it was common ground that the

agreement had not, at that stage, been entered into

and, as Mr Tyson said - who was found to be an

unsophisticated man - he started to answer it that

he would not have entered into the contract.

Really, the Court of Appeal, having found that

he was a relatively simple man, have invested in

him some power of discernment to say, "Oh, really,

counsel is asking me would I have entered into the

contract and I already had entered into it, so I am

not going to respond to his question, I am not

going to give him a responsive answer. I am going

to turn it round, because I know I have already

entered into the contract, and I am simply going to
allege that I would have breached it". Now, really

that is investing Mr Tyson with a degree of

sophistication that the court found he simply did

not possess.

That is the essential question that had to be asked and it is the question that demonstrates the

basis upon which this trial was conducted. That

is, on both sides, the pleadings for the plaintiff

respondent were that the contract was entirely

written, no oral terms, 17 October.

Tyson(2) 15 29/6/93

The case for the first defendant, the

appellant in this Court, was that it was an
entirely oral contract entered into - there were
further and better particulars, I might say, which

are at pages 51 and 54 of the supplementary record, and the appellant's contention was the contract was entirely oral, entered into over the course of

negotiations of 10 October and 11 October 1986.

But on both cases, it was all pre-contractual.

TOOHEY J:  Because if the matter went back to the Court of

Appeal, you might find yourself in some difficulty over the argument as to whether or not the

provisions of the Trade Practices Act could operate

as a defence, but that, no doubt, is capable of

being cured by leave to amend at that stage if it

became an issue. I take it your argument is that

was never an issue before the courts below.

MR MYERS:  Yes, if it was taken as an issue we would really

be back to where we are now.

TOOHEY J:	Yes, it could be met by leave to amend or to make a cross claim even at this stage.
MR MYERS:	Your Honour, with respect, that is so.

Your Honour, the problem that the Court of Appeal came across, of course, on the hearing, or that

appears from their ultimate judgment, could also

have been cured by an amendment. There was no

necessity to rely upon the paragraphs that they

found to be of concern, lA and lB, whic alleged

that it was a pre-contractual conversation.

Had the court raised the concern - and, of

course, Mr Lyons addressed section 87 and said it
did not have to be pre~contractual - we could

simply have sought the leave of the court to amend

by striking out paragraphs lA and lB and relying,

for instance, upon paragraph 2E which simply

alleged the misleading and deceptive conduct. It was followed by a plea that it was pre-

contractual, so it would have required amendment in

that respect but, Your Honours, we had,

effectively, the section 52 finding and we had the

loss and damage. Now, the way we went around

getting the relief is perhaps a matter of
conjecture. As I have submitted, there were

perhaps four ways that Mr Lyons addressed, but

ultimately we would have got there.

BRENNAN ACJ: Well, Mr Myers, it obviously would be of

assistance to the Court if counsel are able to

agree on what matters were common ground, and that

is something which you and Mr Fleming might give

Tyson(2) 16 29/6/93

some consideration to over night. The Court will

adjourn now until 10.00 am tomorrow morning.

AT 4.34 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 30 JUNE 1993

Tyson(2) 17 29/6/93