Re: ADRIAN ALLAN WARNER and JULIE FRANCES WARNER And: ELDERS RURAL FINANCE LIMITED; KEITH RICHARDSON and QUEENSLAND INDUSTRY DEVELOPMENT CORPORATION No. Q G147 of 1992 FED No. 170 Number of pages - 14 Trade Practices (1993) 113 ALR 517, (1993) ATPR 41-238 (1993) 41 FCR 399
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION Foster(1), Hill(2) and Drummond(1) JJ.
CATCHWORDS
Trade Practices - misleading and deceptive conduct - silence - may be misleading or deceptive conduct if there is a "reasonable expectation" in the particular circumstances that information will be disclosed.
General Newspapers Pty. Ltd. v. Australian and Overseas Telecommunications Corporation Limited (Federal Court, Wilcox J., unreported, 15 January, 1993)
Counsel for the third respondent: Mr. A.J.H. Morris and
Mr. L.J.A.T. Hampson
Solicitors for the third respondent: Feez Ruthning
ORDER
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The cross appeal of the first, second and third respondents is allowed.
3. The order of the Honourable Mr Justice Beaumont of 7 October, 1992, whereby the appellants were granted leave to replead against the first, second and third respondents, be set aside.
4. The action against the first, second and third respondents is dismissed.
5. The appellants pay the costs of the first, second and third respondents of and incidental to:
(a) the appeal;
(b) the cross appeal; and
(c) the action;
including reserved costs, to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
FOSTER AND DRUMMOND JJ. The appellants, husband and wife, operate a grazing property. The first and third respondents hold securities over the appellants' property which were granted to them in respect of financial accommodation made available to the appellants. The second respondent is an officer of the first respondent.
On 23 September, 1992, on the ground that the appellants had failed to make out a serious question to be tried, Cooper J. dismissed the appellants' application for interlocutory orders which, if granted, would have prevented the first respondent…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Warner v Elders Rural Finance Ltd
The appeal was brought by the plaintiffs against the defendants in the Federal Court of Australia. The plaintiffs, Warner, sought to amend their pleadings to include allegations of misleading and deceptive conduct against the defendants, Elders Rural Finance Ltd, and related parties. The defendants opposed the amendment, arguing it was an attempt to circumvent the court’s earlier order dismissing the original claims. The plaintiffs' appeal against the refusal to allow the amendment and the defendants' cross-appeal against the order granting leave to replead were both before the court.
The court was tasked with determining whether the plaintiffs were entitled to amend their pleadings to include allegations of misleading and deceptive conduct based on the principle that silence can constitute misleading or deceptive conduct if there is a reasonable expectation that information will be disclosed. The court also had to consider whether the plaintiffs' proposed amendments were permissible under the rules of court and whether the earlier order dismissing the action was correct.
The court held that the plaintiffs were not entitled to amend their pleadings to include new claims of misleading and deceptive conduct. The court found that the plaintiffs' proposed amendments were an attempt to re-litigate the same issues and were not permissible under the rules of court. The court further held that the earlier order dismissing the action was correct, as the plaintiffs had not established a reasonable expectation that the defendants would disclose information. Consequently, the appeal was dismissed, and the cross-appeal was allowed, leading to the setting aside of the order granting leave to replead and the dismissal of the action against the defendants.
The court ordered that the appeal be dismissed, the cross-appeal be allowed, and the order granting leave to replead be set aside. The action against the defendants was dismissed, and the plaintiffs were ordered to pay the defendants' costs of the appeal, cross-appeal, and the underlying action, including reserved costs to be taxed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The cross appeal of the first, second and third respondents is allowed.
3. The order of the Honourable Mr Justice Beaumont of 7 October, 1992, whereby the appellants were granted leave to replead against the first, second and third respondents, be set aside.
4. The action against the first, second and third respondents is dismissed.
5. The appellants pay the costs of the first, second and third respondents of and incidental to:
(a) the appeal;
(b) the cross appeal; and
(c) the action;
including reserved costs, to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.