Boland v. Yates Property Corporation Pty Ltd
167 ALR 575(Judgment by: Gaudron J.)
Boland v Yates Property Corporation Pty Ltd
Webster v Yates Property Corporation Pty Ltd
Judges:
Gleeson CJ
Gaudron JGummow J
Kirby J
Hayne J
Callinan J
Judgment date: 9 December 1999
Canberra
Judgment by:
Gaudron J.
[99] I agree with the orders proposed by the Chief Justice and, subject to the matters mentioned below, I agree with and adopt his Honour's reasons.
[100] The first matter I would mention is the decision of Hardie J in Kennedy Street Pty Ltd v Minister . [80] I agree with Callinan J, for the reasons his Honour gives, that that case was wrongly decided and should no longer be followed.
[101] The second matter I would mention is s 52 of the Trade Practices Act 1974 (Cth) (the Act). The respondents' actions in the Federal Court alleged breach of s 52, as well as negligence. Section 52 provides, in subs (1):
A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 82 allows for recovery of the amount of loss or damage suffered in consequence of a contravention of s 52.
[102] Of course, neither the appellant solicitors nor the appellant barrister are corporations. However, the effect of s 6(3) of the Act is that, relevantly, s 52 has additional effect as if it were "confined in [its] operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services" and the reference "to a corporation included a reference to a person not being a corporation".
[103] So far as concerns s 52 of the Act, the respondents alleged, in effect, that, in making various postal and facsimile communications and in settling a letter to be sent by post or facsimile transmission, the appellant solicitors and the appellant barrister, respectively, engaged in conduct that contravened that section. And in consequence of those contraventions, it was asserted, the respondents allowed the Land and Environment Court proceedings to be conducted in a way that involved no claim for compensation for their "head start" advantage and, thereby, suffered loss. The claim in negligence was similarly framed. In particular, it was alleged that by reason of the failure of the appellants to give proper advice, the respondents allowed the proceedings to be conducted without any claim being made for the asserted "head start" advantage. No claim was made that the appellants were negligent in what they did in court.
[104] The relationship between the law of negligence and the combined operation of ss 52 and 82 of the Act is brought into question in this case. It is not uncommon for claims under s 52 to be joined with claims in negligence. And it is not uncommon, it seems, for such matters to be determined on the basis that the outcome of the negligence claim will determine the outcome of the s 52 claim. That seems to have been the premise upon which the present litigation was conducted. The premise is correct in this case but only in the sense that, given the facts, if the conduct of the appellants was not negligent then it was neither misleading nor deceptive and, conversely, if that conduct was negligent, it was also misleading and deceptive.
[105] Had it been concluded that the conduct of the appellants was negligent and, also, misleading or deceptive, it would then have been necessary to consider whether the conduct of the appellants was conduct in trade or commerce to which s 52 of the Act applied. And if s 52 did apply it would, in my view, have operated to exclude the general law of negligence. Liability in damages for conduct in contravention of s 52 depends simply on contravention and loss. It is not confined by those considerations that determine liability in negligence. In particular, liability for contravention of s 52 does not depend on proximity or the foreseeability of loss.
[106] Moreover, the damages recoverable for breach of s 52 of the Act are not necessarily coextensive with those recoverable in negligence. [81] In particular, damages are confined to actual loss [82] and, thus, do not include punitive damages. Further, it is possible that they are not limited either by the foreseeability of consequential damage or remoteness. [83] And significantly for present purposes, if s 52 had applied in this case, there would be no occasion to consider whether the appellants were "immune from suit". That question could only arise if it were found that the appellants were negligent but that s 52 did not apply to their conduct.
[107] Had the question of "immunity" arisen, I would have granted leave to reopen Giannarelli v Wraith . [84] In my view, proximity - more precisely, the nature of the relationship mandated by that notion - may exclude the existence of a duty of care on the part of legal practitioners with respect to work in court. Whatever the position, it is one that derives from the law of tort, not notions of "immunity from suit". However, these questions do not arise because the conduct of the appellants was neither negligent nor misleading or deceptive for the purposes of s 52 of the Act.
[108] The appeals should be allowed and orders made as proposed by the Chief Justice.