International Trade and Business Law Review
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Peter Gillies[1]
The Trade Practices Act provides for recovery of damages[2] by persons in defined cases of contravention of the Act. Sections 82 and 87 are the core provisions.
Section 82 provides that a ‘person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Parts IV, IVB or V or s 51 AC may recover the amount of loss or damage by action against that other person or against any person involved in the contravention’.
Section 87 provides for the recovery of damages by a person who ‘has suffered, or is likely to suffer, loss or damage by conduct of another person that was in contravention of a provision’ in one or more of the stipulated Parts in the Act (see sub-ss (1), (1A), (1B) and (2)). (Section 87 also provides for the making of such other remedial orders, as the court considers appropriate.) The compensation to be awarded to ‘the person who suffered the loss or damage’ is equivalent to ‘the amount of the loss or damage’ (s 87(2)(d)). This language parallels that used in s 82. Section 87 has rarely been used to ground an award of damages.[3]
As has often been observed, s 82 (parallelling the common law) requires proof that the defendant has caused actual damage (although this need not be economic in nature),[4] while s 87 is satisfied with proof of causation either of actual damage or the likelihood of damage.[5] Two issues raised by these provisions will be examined—causation of loss or damage, and assessment of damages.
Both ss 82 and 87 vest an entitlement to damages in the party who has suffered loss or damage (or, additionally in the case of s 87, who is likely to suffer loss or damage) ‘by conduct of another person’ that contravened a provision in the Act. The word ‘by’ (which is ‘a curious word to use’) imports a requirement that the defendant’s conduct has caused the loss or damage complained of.[6] This concept of causation is not defined in the Act, but it may be viewed as ‘taking up the common law practical or commonsense concept of causation’ endorsed in the High Court’s decision in March v E & MH Stramare Pty Ltd,[7] except to the extent that it is modified or supplemented by provisions in the Act.[8]
The March concept of causation will be commented on immediately below. Its application in the context of ss 82 and 87 raises a number of issues. An obvious one is whether the older causation principles have a role in determining ss 82 and 87 issues of causation.
The courts have long sought to limit criminal and civil liability at the level of causation, recognising that an expansive concept of causation—one attributing causation too readily—will make liability too expansive. Thus, it has been remarked that the legal concept of causation differs from those concepts of causation encountered in such disciplines as science and philosophy because, at the end of the day, legal causation is ‘primarily about attributing responsibility’.[9]
The leading High Court decision on the concept of causation is March v E & MH Stramare Pty Ltd,[10] which was a torts case. The concept is easily stated: in
most cases the determination of whether event A caused event B to occur is ‘one of fact and, as such, to be resolved by the application of commonsense’.[11] This broad concept of the process of determining an issue of causation has been discussed or approved on numerous occasions since.[12] Most of these decisions have dealt with causation in the torts context, but they do not in terms limit their remarks on this topic to torts.
The March formula grapples with the inherent difficulties of trying to resolve issues of causation by resort to more refined formulas, such as the causa sine qua non test. In the words of McHugh J, the courts should no longer ‘sanction the use of formulas which allow tribunals of fact, under the guise of using commonsense, to determine legal responsibility by applying their own idiosyncratic values’.[13] Of course, an explicit commonsense approach would also permit the court to apply its own idiosyncratic values, but the use of a broader test will at least have the virtue of making the approach more transparent, by emphasising that the determination of causation is an almost purely factual exercise, subject to the broadest of legal guidelines, namely that the determination of causation is a matter of practical commonsense, and that it is to be determined objectively and not subjectively in most (but not all)[14] cases.
Does acceptance of the March approach to causation make the older formulas redundant? These include the causa sine qua non, or ‘but for’ test, the notion of the novus actus interveniens and its associated metaphor of the ruptured causal chain, and foreseeability. Does March displace the more intricate doctrines associated with causation in contract and tort?
The traditional test of causation in contract, entrenched in Hadley v Baxendale[15] (that is, that the defendant is liable for those losses which arise naturally in the usual course, or which on an objective view were within the reasonable contemplation of the parties at the time of contracting as the probable outcome of breach), has survived March.[16]
The ‘reasonable foresight’ test approved in the torts context in The Wagon Mound (No 1) and (No 2),[17] pursuant to which loss or damage is caused by a tortious act provided that its occurrence was, on an objective view, reasonably foreseeable as a possible consequence of this act, has been modified. ‘Reasonable foresight’ is no longer a test of causation; rather, it merely ‘marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act’.[18] In these terms, the ‘reasonable foresight test is not an exclusive test—at best it is a negative test of causation. It cannot by itself establish causation, but where causation is otherwise prima facie established, it can exclude it. In this tangential way, it operates to make the distinction between direct consequences, which are attributable to the contravening conduct in question, and the remote consequences, which are not.[19]
The ‘but for’ test is presently viewed by the courts as not being a comprehensive or exclusive test.[20] It is, however, useful if applied in a commonsense way,[21] and it can operate as an important negative criterion, but not as an exclusive test.[22] One obvious problem is that where there are two or more causal events operating, each of them sufficient to cause the loss, the ‘but for’ test logically operates to exclude each as a legal cause.[23]
The concept of novus actus interveniens can also be of use in evaluating causation, but likewise it can operate anomalously. In particular, it will often be unclear as to whether the first act has been rendered causally ineffective by the new act, or whether the first act continues to operate as an effective concurrent cause. The novus actus criterion, that is, cannot reliably yield sensible outcomes on a consistent basis.[24]
The present state of the law of causation, certainly in the torts context, is that the March commonsense analysis governs the determination of legal causation, with the older, familiar tests now relegated to the status of guidelines (to the extent that they were ever more than this)—not comprehensive tests but, at best, prima facie negative tests.
Given the comprehensive tenor of the March formula, the distinction between ‘direct’ and ‘remote’ outcomes—with the latter not being within the province of events caused in law—is no more or less relevant than hitherto. It never was, of course, a legal test of causation; rather, it does no more than raise the question of where the boundaries of legal causation end.
To judge from the cases, issues of causation in the ss 82 and 87 context arise infrequently. The High Court in Wardley Australia Ltd v Western Australia[25] expressed prima facie support for the application of the March concept of legal causation to s 82(1), ‘except to the extent [it] is modified or supplemented expressly or impliedly by the provisions of the Act’.[26] It was not necessary to resolve the issue in Wardley. In Marks v GIO Australia Holdings Ltd,[27] members of the High Court noted in an obiter comment that the ‘but for’ test of causation had been found wanting in other contexts (citing March), and that ‘it may well be that it is not an exclusive test of causation’ in the context of a claim for damages under s 52 in conjunction with s 82.[28]
Logically, the March analysis does apply to the determination of issues of causation in the ss 82 and 87 context. The fondamental premise of the March analysis is that causation cannot be resolved by a specific and conclusive formula; instead, determination is a factual and discretionary process involving practical commonsense. Exactly the same considerations apply to the determination of causation for the purposes of a statutory remedy.
A practical instance of resolving an issue of causation for the purposes of s 82 is encountered in Marks v GIO Australia Holdings Ltd. The High Court held that where borrowers were induced to enter into a loan contract after a misrepresentation as to future changes in the applicable interest rate, they suffered no loss in law (that is, none was caused), given that the proven circumstances were such that they would have borrowed the money in any event, and that they would not have been able to enter into an alternative agreement that was more favourable. As has just been noted, several members of the court commented on the limitations of the ‘but for’ test as a conclusive test. They did not resolve the instant issue of causation by reference to it, although had they done so the outcome would have been the same. Instead, their reasoning was consistent with the broader March analysis: causation was to be assessed objectively, not by reference to the hopes or expectations of a party. The fact that a misled party (as here) may have thought that it was to obtain some advantage from the transaction was not relevant, in a case where the ‘contravening conduct has left the party…no worse off than it was before the contravention occurred’.[29] In this case, the misled parties had ‘suffered and will suffer no loss or damage as a result of the misleading and deceptive conduct’, with the result that no order could be made under ss 82 or 87.[30]
Traditional common law tests of causation (such as that applied in contracts by Hadley v Baxendale) have excluded consequential losses which are beyond reasonable foresight. Are losses of his type causally significant for the purposes of ss 82 and 87, and thus compensable? The question is particularly pertinent given that the most litigated provision in the Act, that is, s 52, imposes strict liability. The March commonsense principle may be relied upon, but there may well be a continuing explicit role for the application of the ‘reasonable foresight’ test as a negative, rather than a comprehensive or inclusive test of causation.[31]
At common law, it is well established that the defendant’s act does not have to be the sole cause of the loss complained of. If it is a material, although concurrent cause, and it otherwise fulfils the legal requirements of causation, it is legally sufficient. There is no reason why an issue of concurrent causation for the purposes of ss 82 and 87 should be different; a proposition recognised in the cases. The formulations differ as they do in the common law authorities: a concurrent cause is a legally sufficient cause provided that it is a ‘real, essential and substantial’ cause of the loss (the restrictive test), or perhaps it is sufficient if it plays some part, even if only a minor part, in contributing to the loss (the expansive test);[32] it is a sufficient cause provided that it had some substantial rather than negligible effect;[33] or it is sufficient if it was a real and effective cause.[34]
On the assumption that a causal link between the defendant’s conduct and the plaintiff’s loss or damage can otherwise be established, can the plaintiff’s conduct—most obviously, his or her failure to protect his or her own interests— have the consequence that the causal does not exist in law? To employ the familiar (if non-technical) metaphor—is the causal chain ruptured?
In practice, the issue arises in situations of misrepresentation which induces a party to act in such a way that a financial loss is suffered, as in the classic s 52 case of a misrepresentation inducing purchase. In an extreme case, where the misrepresentee knows that the representation is false, or learns of its falsity before contracting, the situation is not one of operative misrepresentation, and the causal link is not present even prima facie. The more problematic case is one where, perhaps, the misepresentee is negligent in protecting his or her interests.
In this latter class of case, the authorities support the proposition that in an extreme case the misrepresentee’s lack of care may rupture the causal chain; but the hurdle for the plaintiff is very high. On one formulation, if the facts are that ‘an applicant is so negligent in protecting his own interests’, with the result that a proper view is that ‘the representation complained of was not in the circumstances a real inducement to his entering into a contract’, then ‘the element of causation between the misrepresentation and damage will have been severed by the intervention of the negligence of the applicant’.[35] Similar sentiments are found in other cases in this context.[36] In none of them was the plaintiff’s alleged negligence sufficient to destroy any causal link otherwise apparent. In Campomar Sociedad, Limitada v Nike International Ltd,[37] a Full Bench of the High Court confirmed that there was no general proposition of law that ‘intervention of an erroneous assumption between conduct and any misconception destroys a necessary chain of causation with the consequence that the conduct itself cannot properly be described as misleading or deceptive or as being likely to mislead or deceive’.[38] The case involved a claim of passing off and s 52, it being alleged that the defendant had used a trade mark in marketing goods with the consequence that the prospective purchasers of the defendant’s goods had been misled into thinking that the goods were manufactured and marketed by the applicant. One of the issues raised was the familiar one of what test of believability was to be applied in a fact situation where s 52 was relied upon to ground liability where the target of misleading conduct was a class of consumers. Is it sufficient for liability that unreasonably gullible members of the class would have been misled, or is the test more robust? The formulas tend to revolve around notions of the ordinary, or reasonable, members of the class. This is reflected in a passage in Campomar, one which also recognises that in very unusual cases extreme credulity (and by implication, gross negligence in failing to protect one’s interests) may destroy an otherwise extant causal link:
…in an assessment of the reactions or likely reactions of the ‘ordinary’ or ‘reasonable’ members of the class of prospective purchasers of a mass-marketed product for general use, such as athletic sportswear or perfumery products, the court may well decline to regard as controlling an application of s 52 those assumptions which are extreme or fanciful.[39]
(In the instant case, the court held the trial judge was not wrong in finding that the conduct in question was misleading.)
The passage deals with the assessment of the reactions of a class of consumers; but it is consistent with earlier authority that when the misleading conduct targets an individual or a smaller group in the context of a specific transaction, an extreme or fanciful reaction from the target—such as might happen where the latter is grossly neglectful of his or her own interests—can dissipate a prima facie causal link. The conclusion that this has happened will rarely be drawn, as the history of litigation in the ss 52, 82 class of case makes clear. This is because these provisions reflect a public interest in preventing misleading and deceptive conduct in trade or commerce.[40] Thus in the average case, attributing ‘a certain level of rashness or carelessness’ to an applicant will not dispel a finding of causation where the facts clearly show a ‘sufficient nexus between the misleading and deceptive conduct and damage’ to establish liability under s 52 and damages under ss 82 or 87.[41]
As a consideration of this class of cases reflects, issues of causation for the purposes of s 52 and s 82 (and s 87) respectively, tend to merge. In theory they are separate: where s 52 is concerned, the issue is whether the misleading or deceptive conduct (or conduct likely to mislead or deceive) caused the person targeted to act in error, while the s 82 causation issue is whether there is a causal link between the target’s acting in error and the loss or damage complained of. In practice, in the normal case the issue will be whether there is a causal link between the misleading conduct and the loss or damage complained of, an inquiry which will examine the factual continuum between these events. Whether the issues of causation are examined in two consecutive stages, or as one overarching stage, will normally make no difference: ‘…the ultimate issue is one of causation of loss or damage and the outcome should be the same.’[42]
Section 82, it has been noted, grounds damages only where a person has suffered loss or damage, that is, actual loss or damage, although this damage or loss need not be economic in nature.[43] A person can also seek damages under s 87 for either loss or damage, or where loss or damage is a likely outcome of the defendant’s breach of the Act. As noted, damages have rarely been awarded under s 87;[44] rather, the section is normally relied upon to ground some other remedy.
Where a person who is merely exposed to the likelihood of loss or damage seeks damages under s 87, the provision is silent as to any broad principle of assessment (in contrast to s 87(2)(d), which provides for damages equal to the amount of an actual loss). In principle, damages can be sought for the likelihood of loss, but s 87 perhaps contemplates that in such an event some other remedy will be sought, such as an order voiding a contract, in whole or part (sub-s (2)(a)), or an order varying a contract or arrangement (sub-s (2)(b)), and so on (the list of possible orders in sub-s (2) is non-exhaustive).[45]
In an appropriate case, the court can make orders under both ss 82 and 87, if this is needed.[46] Or a court can make an order under s 87 in preference to s 82, even one for damages, where this is required in the interests of justice (see p 17, below).
A person who loses an opportunity for commercial benefit in consequence of another’s contravention of the Act can get damages under s 82, but, as it will be seen below, this does not involve recovery for a likely loss—the lost opportunity must have an actual value.
Where loss or damage is suffered the award of damages is the sum needed to compensate for ‘the amount of the loss or damage’ (ss 82, 87(2)(d)). A question which arose early in the construction of these broad provisions, was whether common law principles afforded a guide to the task of damages assessment pursuant to this statutory formulation. For a number of years, the courts proceeded on the basis that the principles of damages assessment applied at common law, principally in the torts context, were to be resorted to in construction of these words, although subject to the qualification that the court was not bound to apply torts principles. A subsidiary issue (if indeed the torts principles are de facto to be applied in construing the damages provisions in the Act) has been: is there ever a role for the application of the principles of damages assessment applied in contracts cases?
Most of the reported cases have involved actions for contraventions of s 52, which prohibits corporations in trade or commerce from engaging in conduct that is misleading or deceptive or which is likely to mislead or deceive, in conjunction with the damages provisions in ss 82 and 87.
The preference for resorting to common law principles in applying s 82 was reflected in comments in the High Court’s decision in Gates v City Mutual Life Assurance Society Ltd.[47] The case involved an unsuccessful claim for, inter alia, breach of s 52, by an insured in respect of a statement made by the insurer’s agent. According to Gibbs J, actions based on ss 52 and 53 (involving misleading conduct) were analogous to actions in tort; accordingly, damages for breach of either (relying on s 82) were to be assessed by resort to the principles applicable in tort. He added that ‘the acts referred to in ss 52 and 53 do not include the breach of a contract, and in awarding damages under s 82 for a breach of either of those sections, no question can arise of damages for loss of a bargain. The contractual measure of damages is therefore inappropriate in such a case’.[48] Mason, Wilson and Dawson JJ noted that in a class of case such as the present one, the court was not bound to make a definitive choice between the contracts and torts measure of damages so that one applied to the exclusion of the other; however, ‘there is much to be said for the view that the measure of damages in tort is appropriate in most, if not all, Part V cases, especially those involving misleading or deceptive conduct and the making of false statements. Such conduct is similar both in character and effect to tortious conduct, particularly fraudulent misrepresentation and negligent misstatement’.[49]
These comments were not prescriptive as to approach, it will be noted. They do, however, express a strong preference. Part V of the Trade Practices Act comprehends the consumer provisions, which range well beyond instances of misleading conduct. Most of the provisions target conduct which does not necessarily involve the formation of a contract between complainant and defendant, although equally, fact situations disclosing their contravention may in a particular case have involved the formation of a contract between these parties. In contrast, ss 69ff do envisage contract formation, because they operate to imply stipulated terms into consumer contracts for the sale of goods. Section 74 implies certain warranties into contracts for the supply of services to a consumer.
In its decision of Wardley Australia Ltd v The State of Western Australia,[50] which involved a claim for damages for misleading conduct in contravention of s 52, Mason CJ, Dawson, Gaudron and McHugh JJ were of the opinion that where damages for economic loss or damage were sought under s 82, in reliance on a breach of s 52, it was not true that these damages were necessarily to be assessed by reference to the principles applied in cases of deceit or negligent misstatement, viz, torts principles. Where breaches of Parts IV or V were concerned, ‘the common law measure of damages will in many cases be an appropriate guide, though it will always be necessary to look at the provisions of the Act with a view to ascertaining the existence of any relevant statutory intention’. In a case such as the present, the damages could be assessed by reference to those applied in a case of deceit. It was unnecessary to express a view as to whether the condition of foreseeability, applicable in a case of negligent misrepresentation inducing the purchase of property, would apply to a claim for consequential damages under s 82(1).[51] Brennan J was of the opinion that a claim for damages pursuant to s 52, in conjunction with s 82 damages, were usually to be assessed by reference to torts principles (those applying in the case of deceit or negligent misrepresentation as appropriate).[52]
As in the case of Gates, the non-prescriptive preference in Wardley was for the application of the appropriate torts principles in assessing damages, certainly in respect of ss 52 and 82 claims. A similar approach was taken in other decisions, most of them involving claims for misleading conduct in contravention of s 52, inducing the purchase of a business or property.[53] In such cases, the standard approach has been that in ‘an action for damages for deceit for inducing a person to enter a contract of purchase, which is an action …closely analogous to an action for damages for breach of s 52, the courts have consistently held that the proper measure of damages is the difference between the real value of the thing acquired as at the date of acquisition and the price paid for it’.54
In an uncommon application of s 52, damages were awarded for misleading conduct causing injury to reputation. The court held that the damages to be awarded were to be assessed by reference to the principles governing damages assessment for the common law tort of defamation.[55]
The High Court’s decision in Marks v GIO Australia Holdings Pty Ltd[56] is consistent with the non-prescriptive approach to assessment. The case also involved a claim for damages in reliance on s 52 in conjunction with s 82 (a claim which was unsuccessful, given that causation of damage or loss could not be established). According to Gaudron J, ‘there is no basis for thinking that relief under s 82 is to be confined by analogy either with actions in contract or in tort’,[57] a view expressed by other members of the court.[58] Nonetheless, the common law could aid in assessing damages for contravention of s 52—‘very often the amount of loss or damage caused by contravention of s 52 will coincide with what would have been allowed in an action for deceit’—subject to the qualification that the analogy should not be pressed to the point of permitting recovery for contravention of s 52 only those damages which would be recoverable for deceit.[59]
Cases since Marks have been consistent with this approach—assessment of damages payable pursuant to s 82 based on a contravention of s 52 is not constrained by any requirement to follow contracts or torts principles, but nonetheless, ‘very often the amount of the loss or damage caused by a contravention of s 52…will coincide with the damages recoverable in an action at common law for deceit’.[60]
The current judicial orthodoxy may be summarised. Where damages are to be assessed pursuant to s 82, the courts may resort to common law principles of damages assessment as a guide. But the common law analogies are truly only a guide—‘a servant not a master’.[61] In particular, where damages are sought for breach of s 52 or one of its cognates, such as in the standard case of a misleading statement inducing a purchase, the principles of the tort of deceit are a guide. Logically, this will be so whether the misleading conduct was innocent, negligent or advertent, given that s 52 and cognates do not require proof of fault. The authority on the assessment of damages for contraventions of the Act is overwhelmingly focused on breaches of s 52 and like provisions. Authority on the assessment of damages for contraventions of other provisions is sparse. Consistent with the approach to assessment of damages for breaches of s 52, common law principles may afford a guide to damages assessment for breaches of other provisions in the Act. Three members of the court in Gates v City Mutual Life Assurance Society Ltd,[62] it has been seen, remarked that there is ‘much to be said for the view that the measure of damages in tort is appropriate in most, if not all, Part V cases, especially [but not exclusively] those involving misleading or deceptive conduct’.[63] Like reasoning could be applied to the analogous provisions in Parts IVA (Unconscionable Conduct) and VA (Liability of Manufacturers and Importers for Defective Goods). Where they have been litigated, the tendency has been to seek remedies other than damages in the case of contraventions of Part IV.
The decisions reveal little enthusiasm for resort to the rules governing assessment of damages in contracts in preference to torts in assessing damages under the Act, but in appropriate cases, that is, where the gist of a complaint under the Act is loss of a contractual bargain, contract principles may play a role.
On the assumption that the principles governing assessment of damages in tort are prima facie a guide to assessment of damages for contravention of the Act, it follows that damages are to be assessed on the basis that the party who has suffered loss is to be put in the position he or she would have enjoyed had the contravening conduct (parallelling the tortious act) which has caused this loss not occurred. In contrast, the damages for breach of contract are assessed on the basis that the plaintiff is to be put in the position that he or she would have been in had the contract been duly performed by the defendant.[64] Both damages regimes permit the recovery of reliance losses, including expenditure incurred. The contracts principles also permit the recovery of loss of bargain or expectation losses.[65] Does the torts regime preclude loss of a prospective profit?
Authority supports the notion that lost profits, or a loss of a commercial opportunity of value, are recoverable in an action against a tortfeasor. This is implicit in the basic formulation of principles governing assessment of damages in torts. If the tortious conduct has deflected the plaintiff from pursuing a realisable profit, then damages—which are to be assessed on the basis of placing this party in the position he or she would have enjoyed had the tort not been committed—must necessarily be assessed in such a way as to capture the value of this (lost) opportunity.[66]
Where those principles of damages assessment applicable in the context of the tort of deceit are concerned, it is clear that a loss of opportunity for profit is compensable (see 3.4.1, below).
Moreover, whether or not torts principles are invoked specifically, a line of cases directly on ss 82 and 87 recognises that damages for contravention of the act are to be assessed to capture a loss of commercial opportunity (see p 15, below).
Where a contravention of the Act has caused a loss of commercial profit, or other commercial opportunity, the cases are unanimous in holding that such an opportunity is to be reflected in the damages assessed. The cases have, as noted, concerned alleged breaches of s 52, in the context of misleading representations inducing a contract of purchase. This has not always been the case, however.
Where deceit principles have been applied by analogy, the courts have approved recovery of lost profits. Prima facie, as has been noted at p 10 above, the measure of damages in a case of tortious deceit involving a contract of purchase induced by misrepresentation is the difference, at the time of contract, of the real value of the thing purchased and the price actually paid. More specifically, the plaintiff is ‘entitled to recover as damages a sum representing the prejudice, or disadvantage, he has suffered in consequence of his altering his position under the inducement of the fraudulent misrepresentations made by the defendant’.[67] This formulation clearly permits the recovery of foreseeable consequential loss, including a profit opportunity which has value.[68]
In this context, the tortious approach resembles contracts in permitting recovery of an expectation loss, save that where torts principles are relied upon in assessing damages in respect of a contract of purchase induced by fraud, it is for the plaintiff to establish that he or she ‘could or would have entered into the different contract’ which would have yielded the profit.[69]
Where the damages capture the difference between the price paid and the actual price (such as where the purchaser of a business agrees to pay more than otherwise because the vendor overstates its profitability), events subsequent to the purchase may be looked at when relevant to assessing the true value of the purchase.[70]
Whether or not deceit principles are resorted to in applying s 82 in conjunction with s 52, the fundamental issue is the same—what damage flowed from (that is, was caused by) the misleading conduct in issue.71
Loss of commercial opportunity recoverable independently of deceit analogy
While the deceit analogy has commonly been resorted to in assessing damages in the standard case of a vendor’s misrepresentation inducing a purchase at an inflated price, authority prior to Marks made it clear that s 82 operates to recover a loss of commercial opportunity occasioned by a contravention of the Act. The leading case of Sellars v Adelaide Petroleum NL[72] involved a misrepresentation which induced the plaintiffs to enter into a contract on certain terms which was less favourable than the contract which would have been concluded had it not been for the misrepresentation. Some of the plaintiffs were directors of Adelaide Petroleum. The contract in question provided, inter alia, for the sale of their shares in Adelaide Petroleum. The situation was less typical of cases in this general class, in that a vendor complained of misrepresentation. The court held that where a contravention of s 52 caused an economic or financial loss, including a lost opportunity or chance of economic value, this loss was assessable under s 82.[73] As s 82 permits the recovery of actual loss only, the lost opportunity had to have some economic value.[74]
According to standard civil law principles, the plaintiff had to prove on the balance of probabilities: (1) causation of (2) loss or damage. The latter is demonstrated by showing that ‘the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value)’.[75] How is this value to be assessed? The task of assessing the lost opportunity self-evidently will frequently be difficult. (It would, for example, be impossible to prove, according to the civil standard, precisely how much the plaintiff celebrity has lost as a result of having his or her name and photograph being used without authority in a marketing campaign.)[76] The plaintiff does not need to prove the value according to the civil standard. In assessing the value, the court is to have regard to the ‘degree of probabilities or possibilities’. This approach was more likely to yield fair compensation, while the ‘all or nothing’ outcome posited by the application of the civil standard of proof to the task of assessment, would lead to overcompensation or undercompensation.[77] This approach reflects the standard general law principle that difficulty in assessing damages is not a bar to their award.[78] Just as a contravention causing a loss of a commercial opportunity of some value warrants damages under s 82, so also does a contravention which diminishes this opportunity, thereby inflicting loss.[79]
Both in contract and tort, it is established that damages otherwise payable to a plaintiff will be reduced where he or she has failed to take reasonable steps to mitigate his or her loss, where it is possible to do so.
The authorities accept that a parallel mitigation principle governs the application of s 82 (and by implication, s 87, where it is sought to ground damages under it).[80] The defendant has the burden of establishing failure to mitigate.[81]
A failure to mitigate might take the form of continuing with a retail lease, entered into in consequence of a material misrepresentation by a lessor or agent as to the existence of facts making the proposed venture more attractive than it really was, after learning of the true facts.[82]
The reported decisions lend little support to the proposition that a plaintiff’s contributory negligence may be relied upon to reduce damages otherwise payable pursuant to s 82, by analogy with the tort of negligence. This issue will be further discussed, below.
It is possible, however, that a plaintiff’s failure to protect his or her own interests in a case of misrepresentation may have the consequence that the defendant’s misrepresentation cannot be viewed as being an inducement of the plaintiff’s entering into the subject transaction, and thus an effective cause of the damage suffered, so that no damages will be payable under s 82. This issue has been examined at pp 10–13, above.
Can the court awarding damages under s 82 reduce damages on account of conduct on the part of the applicant, where this conduct has been a partial cause of the loss or damage suffered by the applicant? This conduct might, for example, take the form of what in tortious terms would be regarded as contributory negligence, or it could take another form. Two situations may be distinguished for present purposes: (a) where the defendant’s conduct is a material cause of the whole of the loss or damage in question and (b) where the defendant’s conduct is not a material cause of the damage, or is not a material cause of a divisible part of the overall damage. In either such case, an applicant’s conduct may fall for assessment if it is prima facie a causal factor in the damage suffered.
The High Court held in I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd,[83] overruling a decision of a Full Bench of the Queensland Court of Appeal, that where an applicant seeks damages under s 82, and this applicant is partially responsible for the loss complained of, s 87 cannot be resorted to so as to reduce the damages payable by the defendant.
The plaintiff moneylender had lost money when lending on the faith of the defendant valuer’s wrong valuation of the security property. The trial judge found that the loss was caused by two independent causes—the wrong valuation and the moneylender’s own poor work in assessing the credit worthiness of the borrower. The trial judge viewed the defendant as being two thirds responsible for the loss, and reduced the damages otherwise payable accordingly, by one third. The trial judge analogised the situation to one of contributory negligence. The Court of Appeal upheld this judgment, but on a different basis. In the appellate court’s view, damages otherwise payable pursuant to s 82 could in a case such as the present (where the applicant was partially responsible for its loss) be reduced by resort to s 87. This was so even though the applicant had not sought damages pursuant to s 87, but only s 82. In the court’s view, s 87 vested a discretion in the court to make such an order for reduction of damages in the interests of justice, notwithstanding that the defendant was liable under s 82 to make good the whole of the loss. This discretion was implicit in the provision in s 87(1) which provides that the court may ‘make such order or orders as it thinks appropriate [against the person contravening the Act] if the Court considers that the order or orders concerned will compensate the [person who has suffered loss or damage] in whole or in part for the loss or damage or will prevent or reduce the loss or damage’ (emphasis added).
In its majority (six:one) decision, the High Court held that there was no warrant for qualifying the operation of s 82 in this way, having regard to the terms of s 82, which is a self-contained remedial provision.[84] It was sufficient for recovery of damages compensating for the whole of the loss or damage, that the defendant’s conduct was a material cause (but not necessarily the sole cause) of the loss or damage.[85] It followed that s 82 did not permit damages to be reduced where the applicant by contributory negligence had partially caused its loss.[86] The present legal position as confirmed in this decision does produce potential unfairness, as Kirby J noted in his dissent,[87] and as Callinan J noted in his judgment as part of the majority.[88] A defendant’s act need only be a material cause and not a major cause, but the defendant is still liable pursuant to s 82 for the whole of the loss or damage in question.
In I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd the defendant was held to be liable for the whole of the damage because its conduct was a material cause of the whole of this (indivisible) damage.[89] The decision recognises, however, that where the defendant’s conduct is either not a material cause of the damage, or is not a material cause of a divisible part of the overall damage, the defendant is not liable pursuant to s 82 to compensate the applicant for this damage.[90] This is logical, because s 82 (echoing common law doctrine) only compensates loss or damage caused by the defendant’s contravening conduct. This competing and independent causal event may take the form of negligence or other conduct on the part of the applicant. This class of case is illustrated in Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd.[91] The applicant purchased a restaurant, in consequence of the defendant’s misleading representations. The court held that trading losses that occurred after the applicant had commenced running the business, were not attributable to the defendant’s misrepresentation. As they were not caused by the defendant’s contravening conduct they were not compensable pursuant to s 82.[92]
It follows that on present authority, if the defendant’s conduct has caused the damage complained of for the purposes of s 82, there is no scope for the application of contributory negligence or any analogous doctrine to effect a reduction of damages.
Where two persons are jointly and severally liable in damages pursuant to ss 82 or 87, on account of a breach of, say, s 52 of the Act, and one is sued, may he or she seek contribution from the other pursuant to the equitable doctrine of contribution? The matter is not settled.[93] Present authority, as it will be noted below, implicitly supports the idea that the doctrine of contribution may be resorted to in appropriate cases where one or more of the defendants is made liable pursuant to the Act. To the extent that damages are sought only under s 87 (which would be rare) the discretion given to the court to mould a remedy would permit it to in effect if not in form apply contribution principles.
Contribution fell for consideration in relation to the Trade Practices Act in Burke v LFOT Pty Ltd.[94] LFOT (along with T, who had aided and abetted its breach) was held liable in damages pursuant to s 82 after it was found that it had induced H to purchase a property by a representation which breached s 52. LFOT and T sought contribution from B, H’s solicitor, who had acted for H in relation to the purchase. LFOT and T established that B had acted negligently in not detecting H’s misrepresentation, in breach of his contractual duty. The basis of LFOT’s and T’s liability, therefore, was statutory (ss 52 and 82 of the Act), and B’s was contractual. After consideration by the Full Federal Court, the matter was remitted to the trial judge, who held that LFOT and T were liable in damages pursuant to s 82, and that B was liable pursuant to the doctrine of contribution to pay 50% of these damages. In a majority judgement the High Court held that B was not liable to contribute. A factor of obvious significance was that the order for the payment of damages by LFOT in effect was one that it must disgorge its ill-gotten gain, that is, the difference between the sale price and the (lower) true value of the premises. It did not thereby suffer any net burden or loss. The order for 50% contribution would therefore have advantaged LFOT relative to the position that it would have enjoyed if it had never contravened s 52.
The majority varied in their reasoning. Gaudron and Hayne JJ considered that having regard to the fact that B was less culpable than LFOT and T, and that his conduct was of reduced causal significance compared with theirs, it was not appropriate to require contribution from B. This was because contribution required that that the responsibility of the party be from whom contribution is sought be ‘of the same nature and to the same extent’, notions apt to include consideration of the relative degrees of culpability and causal responsibility.[95] B was also entitled to an indemnity from LFOT and T, if he had been induced by their misrepresentation not to make further enquiries. This reasoning does not preclude the application of the doctrine of contribution in relation to the Trade Practices Act remedies, in appropriate circumstances.[96] McHugh J likewise considered that B was not obliged to contribute, because his obligations were not of the same nature and to the same extent as that of LFOT and T[97] . There was no common interest between B and the other two, of a type which would make it inequitable for one party alone to bear the whole of the burden.[98] For B to contribute would be, in effect, to enrich LFOT and T unjustly.[99] It was also relevant that the conduct of LFOT and T induced B to act in error. Callinan J considered that B was not under an obligation to contribute, because there was no relevant mutuality of rights and obligations inter se.[100] Further, LFOT and T did not have clean hands. They had misled and deceived B, and for him to be required to contribute would be inequitable.[101] He commented obiter that if the tests for contribution were satisfied, then contribution could be ordered whether the formal legal obligations of the parties derived from the same statute or different statutes or a combination of statute and general law.[102] In his dissenting judgment, Kirby J commented that the terms of the Act did not expel the doctrine of contribution.103
In none of these judgments is there any indication that the doctrine of contribution is inapplicable to ccases where one party is or both (or several) parties are liable to pay damages in consequence of a breach of the Trade Practices Act. Pointedly, none of the majority judgments justified the determination that B was not liable to contribute, on this basis (and Kirby J’s dissenting judgment envisaged that contribution can be ordered in a case where one of the parties’ liability sources from common law and the others’ derives from the Act).
The common law is relevant to the construction of s 82 (and where relevant s 87) in respect of issues of both the causation of loss or damage and the assessment of damages. In so far as causation is concerned, in the normal case, and in the absence of contrary provision in the Act, the minimalist legal concept of causation enunciated in March v Stramare is logically to be applied in ss 82 and 87 cases. The policy basis of the March formula is the same whether the causation issue is encountered in a common law or statutory context. The older common law tests of causation are at best negative criteria of causation, setting a limit on the scope of causation in law. The ‘reasonable foresight’ test in particular, perhaps, has a continuing and limiting role. It is potentially particularly important in the very common s 52 cases, where liability is strict, and where the scope of a party’s liability cannot be limited by a requirement of fault. The consequence is that the defendant’s liability is already prospectively of very broad ambit. In contrast, the liability of a defendant in tort is limited by a fault requirement. In particular, the tort of negligence in its application to negligent misstatements (which would often need to be resorted to in the absence of s 52) limits prospective liability at the threshold by imposing limits on the duty of care, especially so in cases of negligent misrepresentation. The result is that in this class of case (in contrast to s 52 actions involving careless misstatements), the defendant’s liability is controlled at the levels of duty of care and fault as well as causation.
Where assessment of damages is concerned, ss 82 and 87, when resorted to in order to ground damages, are not to be interpreted as importing common law principles. Inevitably, though, common law analogies, drawn especially but not exclusively from the torts context, are a pervasive if informal aid in applying these provisions. An issue straddling both topics—causation and assessment—is that of the effect of contributory negligence by the misrepresentee in a case of misrepresentation, where (as will almost always be the case) the negligence is not such as to compel the conclusion that the defendant’s conduct did not induce the transaction complained of. It has been noted that although causation may be extant, the mitigation principle may nevertheless effect a reduction in the damages assessed. It is arguably anomalous that where an applicant’s contributory negligence or other fault has contributed materially to his or her loss, the defendant’s liability for damages will not (subject to limited exceptions) be subject to reduction.
[1] Professor of Law, Division of Law, Macquarie University, Sydney.
[2] See Atkin, LJW, ‘“Loss or damage” under section 82 of the Trade Practices Act’ (1989) 1 Bond Law Review 1, 107; D Skapinker, “‘Other remedies” under the Trade Practices Act—the rise and rise of section 87’ (1995) 21 Monash Law Review 188.
[3] I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2000) ATPR 41–779 at 41–203 (McPherson, Pincus and Thomas JJA, Moynihan SJA and Atkinson J, noting that the section has only been resorted to in order to ground pecuniary payments on two occasions, including in this case).
[4] See Nixon v Slater and Gordon (2000) ATPR 41–765 at 41–012 (Merkel J, in a case where ss 52 and 82 were used to ground damages for misleading and deceptive conduct causing damage to reputation).
[5] Wardley Australia Ltd v WA [1992] HCA 55; (1992) 175 CLR 514 at 527, 545, 551; Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 349; C-Shirt Pty Ltd v Barnett Marketing and Management Pty Ltd (1997) ATPR (Digest) 46–172 at 54–381; Tantipech v IOOF Australia Trustees (NSW) Ltd [1998] HCA 69; (1998) ATPR 41–614; Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at 509, 513, 545; Callings Construction Co Pty Ltd v Australian Competition and Consumer Commission (1998) 152 ALR 510 at 522, 532ff.
[6] Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 525 (Mason CJ, Dawson, Gaudron and McHugh JJ).
[7] [1991] HCA 12; (1991) 171 CLR 506.
[8] Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 525.
[9] Rosenberg v Percival [2001] HCA 18; (2000) 178 ALR 577 at 596.
[10] [1991] HCA 12; (1991) 171 CLR 506.
[11] Ibid at 515, per Mason CJ. Similarly, see the comments of Deane J at 523, Toohey J at 525 and McHugh J at 533.
[12] Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at 512; Chappel v Hart (1998) 195 CLR 232 at 243–55, 268–69.
[13] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 533.
[14] Where a patient alleges that he or she suffered avoidable injury resulting from a medical procedure because he or she was not warned by the doctor or dentist of the risks inherent in the procedure, the test of whether the patient would have undergone the treatment had the warning been given is a subjective and not an objective one, ie, the question is whether the particular patient would have proceeded notwithstanding the warning: see Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479; Rosenberg v Percival [2001] HCA 18; (2000) 178 ALR 577 at 582 (McHugh J), 597 (Gummow J), 616 (Kirby J).
[15] (1854) 9 Ex 341.
[16] Such is assumed in, eg, Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 163 ALR 611 at 623, 626 (McHugh J).
[17] Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 1; [1961] AC 388; Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1966] UKPC 1; [1967] 1 AC 617.
[18] See Mason CJ in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 510, citing Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 122 and Mahoney v J Kuschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 at 528 (not an exclusive test of causation). Likewise, see March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 524 (Toohey J), 525 (Gaudron J) and 534 (McHugh J).
[19] That reasonable foresight still has a role is reflected in comments by Kirby and Callinan JJ in the post-March decision of Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 163 ALR 611 at 645, deciding that the defendant was liable for a loss which was ‘readily foreseeable’.
[20] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 522 (Deane J); Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at 512 (McHugh, Hayne and Callinan JJ); Chappel v Hart (1998) 195 CLR 232 at 255 (Gummow J), 269 (Kirby J), 283 (Hayne J); Kenny, ibid at 618 (Gaudron J).
[21] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 533 (McHugh J).
[22] See the comments in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 522 (Deane J); Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; Chappel v Hart (1998) 195 CLR 232 at 283 (Hayne J).
[23] March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 516 (Mason CJ), 523 (Deane J).
[24] See March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 531, 535 (McHugh J, noting that it is a rule of policy and not a test; and that its application involves a value judgment).
[25] [1992] HCA 55; (1992) 175 CLR 514.
[26] Ibid at 525 (Mason CJ, Dawson, Gaudron and McHugh JJ).
[27] [1998] HCA 69; (1998) 196 CLR 494.
[28] Ibid at 513.
[29] Ibid at 514, 515 (McHugh, Hayne and Callinan JJ).
[30] Ibid at 516.
[31] Note the comment in Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 526, per Mason CJ, Dawson, Gaudron and McHugh JJ, raising the issue of whether the condition of foreseeability applicable to claims for consequential damages for negligent misrepresentations inducing the purchase of property, is applicable to a claim for consequential damage under s 82(1). They did not consider that it was necessary to resolve it on this occasion. If s 52 was relied upon to ground a claim for damages in a case where a defendant was alleged to have caused a loss by negligently inducing the plaintiff to enter into a contract for purchase, the common law requirement of reasonable foresight that governs determination of whether a duty of care existed in the first place would not govern application of s 52, given that the provision imposes strict liability.
[32] See Australian Protective Electronics Pty Ltd v Pabflow Pty Ltd (1996) ATPR 41–524 at 42–737 (Parker J), and note the cases cited there.
[33] Como Investments Pty Ltd (In Liq) v Yenald Nominees Pty Ltd (1977) ATPR 41–550 at 43–619 (Burchett, Ryan and RD Nicholson JJ).
[34] Embo Holdings Pty Ltd v Camm (1998) ATPR (Digest) 46–184 at 50–333 (Millane JR).
[35] Argy v Blunts & Lane Cove Real Estate [1990] FCA 166; (1990) ATPR 41–015 at 51–281 (Hill J).
[36] O’Hara v Williams (1996) ATPR (Digest) 46–156 at 53–322; Embo Holdings Pty Ltd v Camm (1998) ATPR (Digest) 46–184 at 50–333 (Millane JR); Hill v Tooth & Co Ltd [1998] HCA 69; (1998) ATPR 41–649 at 41–219. Pavich v Bobra Nominees Pty Ltd (1988) ATPR (Digest) 46–039; and see Henville v Walker [2001] HCA 52; (2001) 206 CLR 459.
[37] (2000)169 ALR 677.
[38] Ibid at 705, citing Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177 at 352 (Deane and Fitzgerald JJ).
[39] Ibid at 705.
[40] See the comment by Einfeld J in Hill v Tooth & Co Ltd [1998] HCA 69; (1998) ATPR 41–649 at 41–219.
[41] Ibid.
[42] Australian Protective Electronics Pty Ltd v Pabflow Pty Ltd (1996) ATPR 41–524 at 42–736 (Parker J).
[43] Nixon v Slater and Gordon (2000) ATPR 41–765 at 41–013 (damages awarded under s 82 in respect of a contravention of s 52 causing damage to reputation).
[44] I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2000) ATPR 41–779 at 41–203.
[45] See the discussion in Collings Construction Co Pty Ltd v ACCC (1998) 152 ALR 510 at 520ff, and the authorities cited there, while noting that these comments now need to be read in light of Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 (which holds that in assessing damages under ss 82 and 87, the court is not bound to reason by analogy with one or another of the common law damages assessment regimes applying in contracts and torts).
[46] Marks v GIO Australia Holdings Ltd, ibid, per Kirby J, noting that such is made clear by s 87(1); Tantipech v IOOF Australia Trustees (NSW) Ltd [1998] HCA 69; (1998) ATPR 41–614 at 40–741 (damages coupled with order relieving from liability under a lease); Moorna Constructions (NSW) Pty Ltd v Denmatu Pty Ltd [1998] HCA 69; (1998) ATPR 41–616 (damages under s 82 coupled with order for rescission of lease under s 87).
[47] [1986] HCA 3; (1986) 160 CLR 1
[48] Ibid at 6.
[49] Ibid at 14. 50 [1992] HCA 55; (1992) 175 CLR 514. 51 Ibid at 526. 52 Ibid at 534.
[53] Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4; (1995) 184 CLR 281 at 290 (apply deceit principles); Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1996) ATPR 41–460; O’Hara v Williams (1996) ATPR (Digest) 46–156 at 53–324 (apply deceit principles); Australian Protective Electronics Pty Ltd v Pabflow Pty Ltd (1996) ATPR 41–524 at 42–743; Embo Holdings Pty Ltd v Camm (1998) ATPR (Digest) 46–184 at 50–334 (apply deceit principles); Thompson v Ice Creameries of Australia Pty Ltd [1998] FCA 181; (1998) ATPR 40–673 at 40–704ff.
[54] Kizbeau, ibid at 291 (Brennan, Deane, Dawson, Gaudron and McHugh JJ).
[55] Nixon v Slater and Gordon (2000) ATPR 41–765 at 41–013 (Merkel J).
[56] [1998] HCA 69; (1998) 196 CLR 494.
[57] Ibid at 503.
[58] Ibid at 510 (McHugh, Hayne and Callinan JJ), 529 (Gummow J).
[59] Ibid at 512 (McHugh, Hayne and Callinan JJ).
[60] Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 163 ALR 611 at 646 (Kirby and Callinan JJ); Radferry Pty Ltd v Starborne Holdings Pty Ltd (1998) ATPR (Digest) 46–189.
[61] Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at 529 (Gummow J).
[62] [1986] HCA 3; (1986) 160 CLR 1.
[63] Ibid at 14 (Mason, Wilson and Dawson JJ).
[64] Robinson v Harman [1848] EngR 135; (1848) 1 Ex 850 at 855; [1848] EngR 135; 154 ER 363 at 365. See the comments of Mason, Wilson and Dawson JJ in Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1 at 11ff, contrasting the application of contracts and torts principles to the assessment of damages.
[65] Gates, ibid at 12.
[66] Ibid at 12–13; likewise see the comment in Australian Protective Electronics Pty Ltd v Pabflow Pty Ltd (1996) ATPR 41–524 at 42–744 (Parker J, Kennedy and Murray JJ concurring); Thompson v Ice Creameries of Australia Pty Ltd [1998] HCA 69; (1998) ATPR 41–611 at 40–704 (Lehane J).
[67] Toteff v Antonas [1952] HCA 16; (1952) 87 CLR 647 at 650, per Dixon J, approved in Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1 at 12 (Mason, Wilson and Dawson JJ).
[68] Gates, ibid at 12.
[69] Ibid at 13.
[70] Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4; (1995) 184 CLR 281.
[71] Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 163 ALR 611 at 647 (Kirby and Callinan JJ).
[72] [1994] HCA 4; (1994) 179 CLR 332.
[73] Ibid at 348–49 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[74] Ibid.
[75] Ibid at 355.
[76] The facts alleged in the s 52 case of Talmax Pty Ltd v Telstra Corporation Ltd (1996) ATPR 41– 535 at 42–829 (Fitzgerald P, Davies JA and Moynihan J).
[77] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 356.
[78] That difficulty in assessing damages is not a bar to their assessment was instanced in Accohs Pty Ltd v RA Bashford Consulting Pty Ltd (1997) ATPR (Digest) 46–176 at 54–412. See also C-Shirt Pty Ltd v Barnett Marketing and Management Pty Ltd (1997) ATPR (Digest) 46–172 at 54–380 (plaintiff failed to prove actual loss, in a claim for damages pursuant to ss 52, 82).
[79] Talmax Pty Ltd v Telstra Corporation Ltd (1996) ATPR 41–535 at 42–829 (Fitzgerald P, Davies JA and Moynihan J).
[80] Hubbards Pty Ltd v Simpson Ltd (1982) ATPR 40–295; Thompson v Ice Cream Eateries of Australia Pty Ltd [1998] HCA 69; (1998) ATPR 41–611 at 40–709; Embo Holdings Pty Ltd v Camm (1998) ATPR (Digest) 46–184 at 50–337; cf Pavich v Bobra Nominees Pty Ltd (1988) ATPR (Digest) 46–039.
[81] Embo, ibid.
[82] Baillieu Knight Frank (Gold Coast) Pty Ltd v Susan Pender Jewellery Pty Ltd (1997) ATPR 41– 542 at 43–525 (a failure to mitigate was not established on the facts).
[83] [2002] HCA 41; (2002) 192 ALR 1.
[84] Ibid at 6 (Gleeson CJ), 15 (Gaudron, Gummow and Hayne JJ), 27 (McHugh J), 52 (Callinan J), cf 35ff (Kirby J).
[85] Ibid at 8 (Gleeson CJ), 15 (Gaudron, Gummow and Hayne JJ), 27 (McHugh J), 51 (Callinan J).
[86] Ibid at 12 (Gaudron, Gummow and Hayne JJ), 20 (McHugh J), 52 (Callinan J, but noting that such an outcome was unfair).
[87] Ibid at 35ff. Kirby J referred to the possibility that the equitable doctrine of contribution could have been invoked by the defendant to effect a reduction of damages—at 38.
[88] Ibid at 52.
[89] Ibid at 8 (Gleeson CJ), 15 (Gaudron, Gummow and Hayne JJ), 27 (McHugh J), 55 (Callinan J).
[90] Ibid at 6 (Gleeson CJ), 16 (Gaudron, Gummow and Hayne JJ), 21 (McHugh J), and see 40 (Kirby J).
[91] (1987) ATPR 40–822.
[92] Likewise, see Tefbao Pty Ltd v Stannic Securities Pty Ltd (1993) 118 ALR 565; Mehta v Commonwealth Bank of Aust (1990) Aust Torts Reports 81–046; Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 (where the High Court by majority held on the facts that the principle did not apply, and rather, the defendant’s conduct was a cause of the totality of the loss, even as there were other contributing factors).
[93] See the comment by Gaudron ACJ and Hayne J in Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 187 ALR 612 at 617 (noting that in the particular circumstances it was unnecessary to further explore the issue of how doctrines of equitable contribution operate in relation to the provisions of Part VI of the Act); McHugh J in the same decision at 625, where it was left open that contribution might be applied to relieve a person from liability under the Trade Practices Act; and that by Kirby J in I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 192 ALR 1 at 38 (perhaps envisaging that a case could be made for the application of equitable contribution in this context). As it will be noted below, the Burke decision lends implicit support to the application of the general law doctrine of contribution in the context of the Trade Practices Act.
[94] Burke, ibid.
[95] Ibid at 616–617, citing BP Petroleum Development Ltd v Esso Petroleum Co Ltd ([1987] SLT 345 at 348.
[96] The issue was not necessary to determine—Burke, ibid at 617 (Gaudron ACJ and McHugh J).
[97] Ibid at 625.
[98] Ibid at 624, 626.
[99] Ibid at 627.
[100] Ibid at 651.
[101] Ibid at 652.
[102] Ibid at 652. 103 Ibid at 638.
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