Pritchard v Racecage Pty Ltd

72 FCR 203
1997 - 0204B - FCA; No. DG 4 of 1996

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(Judgment by: Branson J)

Between: Pritchard
And: Racecage Pty Ltd

Court:

Judges: Spender J
Olney J

Branson J

Subject References:
trade practices
consumer protection
misleading and deceptive conduct
unconscionable conduct
application of Trade Practices Act 1974 (Cth) to claim in connection with death of person in motor vehicle accident
causation
whether death caused by misleading, deceptive or unconscionable conduct
whether s 4K of the Act permits recovery of damages solely for personal injury
whether causes of action under Parts IVA and V of the Act survive death of potential claimant
whether relatives of a deceased prevented from bringing actions under the Act because of rule in Baker v Bolton
whether relatives of deceased suffered loss within meaning of ss 82 and 87 of the Act
statutes
Territory legislation
effect of Trade Practices Act 1974 (Cth) on Motor Accidents (Compensation) Act 1979 (NT)

Legislative References:
Judiciary Act 1903 (Cth) - s 79; s 80
Trade Practices Act 1974 (Cth) - s 4K; s 51AA; s 52; s 82; s 87
Northern Territory (Self-Government) Act 1978 (Cth) - s 7(2)(a); s 35
Motor Vehicles Act 1949 (NT) - the Act
Law Reform (Miscellaneous Provisions) Act 1956 (NT) - the Act
Compensation (Fatal Injuries) Act 1974 (NT) - s 7(1); s 5(2)
Motor Accidents (Compensation) Act 1979 (NT) - s 4; s 5; s 6; s 40A
Northern Territory (Self-Government) Regulations - the Regulations

Case References:
Baker v Bolton - (1808) 1 Camp 493; 170 ER 1033
Brown & Anor v Jam Factory Pty Ltd & Anor - (1981) 53 FLR 340
Crofter Hand Woven Harris Tweed Co v Veitch & Anor - [1942] AC 435
Concrete Constructions (NSW) Pty Limited v Nelson - (1990) 169 CLR 594
Brabazon v Western Mail Ltd - (1985) 58 ALR 712
Aristotite v Gladstone Park Shopping Centre Pty Ltd - (1983) 71 FLR 276
Steiner v Magic Carpet Tours Pty Ltd - (1984) ATPR 40-490
Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd & Ors - (1986) 65 ALR 500
Baxter & Anor v British Airways PLC & Anor - (1988) 82 ALR 298
Zoneff v Elcom Credit Union Ltd - (1990) 94 ALR 445
Park & Others v Allied Mortgage Corporation Limited & Ors - (1993) ATPR 46-105
National Mutual Property Services (Australia) Pty Ltd & Ors v Citibank Savings Limited & Ors (No 1) - (1995) 132 ALR 514
R v Federal Court of Australia; ex parte Pilkington A.C.I. (Operations) Pty Ltd - (1978) 142 CLR 113
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd - (1982) 149 CLR 191
Wardley Australia Ltd v Western Australia - (1992) 175 CLR 514
March v Stramare (E. & M.H.) Pty Ltd - (1991) 171 CLR 506
Commercial Bank of Australia Ltd v Amadio - (1983) 151 CLR 447
Murex Diagnostics Australia Pty Ltd v Chiron Corporation - (1995) 128 ALR 525
General Steel Industries Ltd v Commissioner for Railways - (1964) 112 CLR 125
Walton v Gardiner - (1993) 177 CLR 378
Blomley v Ryan - (1956) 99 CLR 362
Hospital Products Limited v United States Surgical Corporation & Ors - (1984) 156 CLR 41
Breen v Williams - (1994) 35 NSWLR 522
Jenyns v Public Curator (Q) - (1952) 90 CLR 113
Capro Group Pty Ltd v Janbrett Consultants Pty Ltd - (1994) ATPR 41-298

Hearing date: 1 July 1996, 2 July 1996, 3 July 1996
Judgment date: 4 February 1997

Darwin

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Judgment by:
Branson J

This is an appeal against a judgment of O'Loughlin J whereby his Honour ordered that there be judgment for the first respondent and the second respondents against the appellant.  There is further an appeal against certain orders of his Honour striking out certain paragraphs of the appellant's statement of claim.  For ease of reference the appellant will hereafter be referred to as the applicant.

His Honour gave judgment following the deciding by him of certain questions before trial pursuant to O29 r2 of the Federal Court Rules.  Order 29 rule 4 of the Federal Court Rules empowers the Court, where the decision of a question under that Order substantially disposes of the proceedings, to pronounce judgment.  His Honour's orders striking out certain paragraphs of the statement of claim were made pursuant to Order 20 of the Federal Court Rules on the basis that the paragraphs failed to disclose a cause of action.  The paragraphs struck out constitute the whole of the substantive case pleaded by the applicant against the respondents.  Only paragraphs pleading formal matters remain.

BACKGROUND

The following passage from the reasons for judgment of the primary judge sets out the background to this matter:-

"These proceedings were instituted by the applicant, Susan Ann Pritchard, by application and statement of claim filed in court on 16 March 1995.  In her statement of claim the applicant has pleaded that, pursuant to a grant of Letters of Administration dated 20 December 1994, she is the administrator of the estate of her late husband, Keith Alan Pritchard ('the deceased').  It is pleaded that he died near Stuart Well, Stuart Highway, via Alice Springs in the Northern Territory when struck by a motor vehicle on 24 May 1994.  The applicant also pleaded that she is the widow of the deceased and that she and their three young children were, at all material times prior to his death, dependent upon the deceased.

In par 1.5 of the statement of claim the applicant has pleaded that she has instituted these proceedings against the respective respondents first, on her own behalf, next on behalf of the estate of the deceased in her capacity as administrator of the estate and finally in her capacity as the next friend of her three children.  The activities and identities of the respondents, as extracted in summary form from the statement of claim, are as follows:  in or about March 1993, as a result of the efforts of two men, Allan George Moffatt and Graham James McVean, the first respondent agreed with the Government of the Northern Territory to organise, promote and conduct a motor sports event to be known as the 'Cannonball Run' ('the Rally').  The Rally commenced on 20 May 1994 with competitors driving from Darwin to Ayers Rock and back to Darwin. The second respondents were said to be the persons who managed, controlled and otherwise acted for and on behalf of an unincorporated association of natural persons and incorporated and unincorporated bodies known as the 'Confederation of Australian Motor Sports' (CAMS).  It is pleaded, inter alia, that CAMS is the organisation that is responsible for the safe conduct of motor sport activities in Australia.

In par 12 of the Statement of Claim it is alleged that the first respondent requested members of the Darwin Motor Sports Club Inc ('the Club') to act, without remuneration, as Officials during the conduct of the rally.  The deceased, who was said to be a car racing enthusiast and a member of the Club, allegedly agreed to act as such an Official.  In pars 13 and 14 there are pleas that the first respondent represented to the members of the Club, including the deceased, to the Government of the Territory, including the police, to the second respondents and to the public that it was an expert in the organisation, promotion and conduct of events such as the Rally, that the Rally would be conducted safely and that Officials (of whom the deceased was one) would not be exposed to an unreasonable risk of injury. It was said that those representations were made in order to persuade the authorities and the second respondents to grant the necessary permits to conduct the Rally and to induce the members of the Club to co-operate in the organisation, promotion and conduct of the Rally.  There then follows a plea that the representations were false and that, by making them, the first respondent engaged in conduct that was misleading or deceptive, in breach of the provisions of s 52 of the Trade Practices Act 1974 (Cth) ('the TPA').  Subsection (1) of that section is in the following terms:

'(1)

A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceiv.'

It is claimed in par 16 that the second respondents also engaged in misleading or deceptive conduct in breach of s 52 of the TPA, in that they represented to the authorities, including the police, and to the members of the Club, that CAMS would not issue a permit for the Rally unless it had fully and properly investigated all aspects of the event and had satisfied itself that the Rally would be conducted in a safe environment.  The issuing of a permit also allegedly meant that CAMS' representatives at the Rally would monitor and supervise the event to ensure that the rules and principles contained in the National Competition Rules and the Manual of Motor Sport prescribed by CAMS in respect of such events would be observed and that the Rally would be conducted safely.  In so far as the first respondent's or second respondents' conduct concerned representations as to future matters, the applicant also relied on s 51A of the TPA.

Additional pleas of unconscionable conduct have also been made against the first respondent and the second respondents.  It is alleged that the first respondent owed a duty to various parties, including the Officials, to act in their interests when making decisions that might affect the safe conduct of the Rally.  As to the second respondents, it is said that CAMS' duty to the same parties arose when it was considering whether to issue a permit for the Rally. In breach of those duties, and acting in their own interests and not in the interests of the Officials and others (so it is said), the first respondent and the second respondent, 'engage(d) in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the (Northern Territory of Australia)' contrary to the provisions of subs 51AA(1) of the TPA.

At this stage it may be assumed that the first respondent is a 'trading corporation formed within the limits of Australia' and so bound by the provisions of the TPA and that the TPA applies to the second respondents because of subs6(4) which extends relevant provisions of the Act to conduct in a Territory.

The statement of claim then alleges in par 29 that if the first respondent and the second respondents had not engaged in misleading and deceptive conduct or if they had not respectively engaged in unconscionable conduct then either the authorities would not have permitted the Rally to occur or it would have been conducted under more stringent conditions or, alternatively, the deceased would not have participated in the Rally as an Official. These were said to be the circumstances that led to the deceased volunteering to be an Official and, later, to his death when he was struck by the vehicle of one of the Rally competitors whilst carrying out his duties as an Official at a finish control point.

The Statement of Claim concludes as follows:

'30.

The Deceased's death was caused by the breach of ss 52 and 51AA of the TPA by the First Respondent and further or alternatively the Second Respondents as aforesaid.

31.

By reason of the breach of ss 51AA and 52 of the TPA as aforesaid, the Applicant the Estate and the Children have suffered loss and damage.

Particulars

Particulars of loss and damage will be provided.

32.

AND THE Applicant CLAIMS in her own right, on behalf of the estate and on behalf of the Children:

32.1

damages pursuant to s 82 of the TPA

32.2

orders pursuant to s 87 of the TPA to compensate for the loss and damage;

32.3

interest; and

32.4

costs.'"

Issues raised by the respondents in their respective defences led to the formulation of certain question which were ordered to be tried as separate questions before trial.  Such order was made pursuant to Order 29 of the Federal Court Rules and on the basis of the agreed facts which are set out below.  Such questions were formulated as follows:-

"QUESTION 1

Are respectively the

(a)

applicant

(b)

children

(c)

estate

precluded from recovering damages and other compensation pursuant to Part VI of the Trade Practices Act by reason of s 5 of MACA?  That is, is the defence raised in paragraph 4(a) of the defence of the first respondent and paragraph 1.5B of the defence of the second respondent a complete defence?

QUESTION 2

Are respectively the

(a)

applicant

(b)

children

precluded from claiming any relief pursuant to the Trade Practices Act because of the rule in Baker v Bolton (1808) 1 Camp 493; 170 ER 1033.  That is, is the defence raised in paragraph 4(b) of the first respondent's defence a complete defence?

QUESTION 3

Can respectively the

(a)

applicant

(b)

children

(c)

estate

suffer 'loss' or 'damage' within the meaning of s 82 or s 87 of the Trade Practices Act?  That is, is the defence raised in paragraph 1.5A of the second respondent's defence a complete defence?  Similarly, is the defence raised by paragraphs 4(d) and 4(g) of the first respondent's defence a complete defence?

QUESTION 4

(a)

Did any action that the deceased may have had pursuant to the Trade Practices Act survive his death?

(b)

If the answer to question 5(a) [sic] was no, is the applicant precluded from claiming damages or any relief whatsoever on behalf of the estate pursuant to the Trade Practices Act.

That is, is the defence pleaded in paragraph 4(f) of the first respondent's defence a complete defence?

QUESTION 5

Assuming the death of the deceased was by conduct of the first respondent allegedly in breach of s 51AA and s 52 of the Trade Practices Act, is the deceased's estate or is the applicant on behalf of the estate able to recover damages arising from the death of the deceased pursuant to s 82 of the Trade Practices Act?  That is, is the defence pleaded in paragraph 4(g) of the first respondent's defence a complete defence?

QUESTION 6

Does the Court have power to make orders against the respondents under s 87 of the Trade Practices Act to compensate:

(a)

the applicant for, or prevent or reduce, the loss or damage she has suffered or is likely to suffer;

(b)

the deceased's estate for, or prevent or reduce, the loss or damage it has suffered or is likely to suffer, and further or alternatively

(c)

the children for, or prevent or reduce, the loss or damage they have suffered or are likely to suffer

by reason of the death of the deceased?  That is, is the defence raised by paragraph 4 of the first respondent's defence a complete defence to a claim made pursuant to s 87 of the Trade Practices Act?"

By the same order, the following additional questions were formulated for decision at the trial of the questions set out above:-

"(a)

Should paragraphs 23, 24, 25 and 28 of the Claim and those parts of paragraphs 29, 30 and 31 which allege unconscionable conduct and breach of s 51AA of the Trade Practices Act be struck out for the reason that paragraphs 23, 24, 25 and 28 of the Claim and the relevant parts of paragraphs 29, 30 and 31 fail to disclose a cause of action

(b)

Should paragraphs 13, 14, 15, 21 and those parts of paragraphs 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 20, 22, 29, 30 and 31 of the Claim which allege misleading or deceptive conduct and breach of s 52 of the Trade Practices Act be struck out for the reason that paragraphs 13, 14, 15, 21 and the relevant parts of paragraphs 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 22, 29, 30 and 31 of the Claim fail to disclose a cause of action on behalf of the applicant and the children in that it is not alleged that either the applicant or the children relied on the conduct of the first respondent which is alleged to be in breach of s 52 of the Trade Practices Act."

The following facts are agreed between the parties:-

"1.

The deceased died in or as a result of 'an accident that occurred in the Territory' within the meaning of the Motor Accidents (Compensation) Act (Northern Territory) ('the MAC Act').

2.

The deceased was at the time of the accident a 'resident of the Territory' within the meaning of the MAC Act."

It is agreed between the parties that none of the above questions is intended to raise the issue of whether the conduct of the respondents, or any of them, was conduct "in trade or commerce".

It is convenient to deal with the separate questions individually.

QUESTION 1

Question 1 is set out above.  It, like all the questions before him, was answered by the primary judge adversely to the applicant.

In considering Question 1, his Honour sought to identify the cause of the death of the deceased and of any losses sustained by the applicant and her children.  He also considered whether the Trade Practices Act 1974 (Cth) ("the TP Act") the TP Act discloses an intention "to have general application to road traffic accidents".  Neither of these issues, in my view, bears directly upon the issue formulated in Question 1.

The defence raised in paragraph 4(a) of the defence of the first respondent is pleaded as follows:-

"The first respondent denies the allegations made in paragraph 1.5 of the Claim and says that the proceedings are not maintainable by the applicant on her own behalf, nor on behalf of the Estate nor on behalf of the Children.

PARTICULARS

(a)

S 5(1)(a) of the Motor Accidents (Compensation) Act (NT) deprives the applicant and the children of all actions for damages as at all material times

(i)

the applicant and the children and the deceased were residents of the Northern Territory

(ii)

the death of the deceased was the result of a motor vehicle accident that occurred in the Northern Territory; ... ."

Section 5 of the Motor Accidents (Compensation) Act (NT) 1979 ("the MAC Act") provides as follows:-

"(1)

No action for damages shall lie in the Territory-

(a)

in respect of the death of or injury to a person who at the time of the accident was a resident of the Territory; or

(b)

for non-economic loss in excess of the amount from time to time prescribed for the purposes of section 17, in respect of an injury to a person who, at the time of the accident, was not a resident of the Territory,

in or as the result of an accident that occurred in the Territory.

(2)

In sub-section (1) non-economic loss means-

(a)

pain and suffering;

(b)

loss of amenities of life;

(c)

loss of expectation of life; or

(d)

disfigurement."

No party disputes that this proceeding is brought in the Northern Territory ("the Territory") as an action for damages in respect of the death of a person who was at the time of the accident a resident of the Territory.  On behalf of the applicant it is contended that as a matter of interpretation s 5 of the MAC Act has no application to a claim for damages and compensation brought pursuant to ss 82 and 87 respectively of the TP Act.  In the alternative it is contended on behalf of the applicant that if s 5 of the MAC Act is inconsistent with ss 82 and 87 of the TP Act, the TP Act will prevail and s 5 of the MAC Act will be invalid to the extent of the inconsistency.

I deal first with the question of the intended ambit of the MAC Act.

The long title of the MAC Act reads as follows:-

"An Act to establish a no fault compensation scheme in respect of death or injury in or as a result of motor vehicle accidents, to prescribe the rates of benefits to be paid under the scheme, to abolish certain common law rights in relation to motor vehicle accidents, and for related purposes."

I find the reference to the abolition of "certain common law rights" in the long title of the MAC Act to be of limited assistance.  The MAC Act does abolish certain common law rights, although the right to bring an action for damages consequent upon the death of a person is not such a right.  The right to bring an action consequent upon the death of a person is a statutory right.  The abolition of such right may be described as a "related" purpose to the abolition by the MAC Act of certain common law rights.  The statutory basis in the Territory for an action for damages consequent upon the death of a person is considered under the heading "Question 2".

Crucial to the operation of the MAC Act is the definition of "accident" contained therein.  It is in the following terms:-

"'accident' means -

(a)

in relation to the Territory - an occurrence -

(i)

on a public street, as defined in the Motor Vehicles Act, caused by or arising out of the use of a motor vehicle; or

(ii)

in any place in the Territory, other than a public street, caused by or arising out of the use of a Territory motor vehicle in respect of which a compensation contribution under Part V or section 137 of the Motor Vehicles Act has been paid or a motor vehicle currently registered in a State or another Territory in accordance with the law relating to the registration of motor vehicles applicable in that State or Territory; and

(b)

in relation to a place outside the Territory - an occurrence caused by or arising out of the use of a motor vehicle,

occurring on or after 1 July 1979, and which results in the death of or injury to a person."

Part V of the Motor Vehicles Act 1949 (NT) provides for the payment to the Minister responsible for the Territory Insurance Office the amount of compensation contributions specified under that Act as a condition of the grant or renewal of the registration of a motor vehicle.  Section 137 of that Act makes provision for the payment of a compensation contribution as a condition of the issue of a temporary licence to drive an unregistered vehicle on a public street, or to operate on a public street a registered motor vehicle for a purpose other than the purpose for which it is registered or licensed.

The definition of "Territory motor vehicle" contained in s 4 of the MAC Act is also of significance.  It is in the following terms:-

"'Territory motor vehicle' means-

(a)

in relation to an accident occurring outside the Territory - a motor vehicle in respect of which a current compensation contribution, within the meaning of the Motor Vehicles Act, has been paid, and includes a motor vehicle currently registered in the Territory under the Interstate Road Transport Act 1985 of the Commonwealth where that motor vehicle was registered or re-registered within the Territory under that Act; and

(b)

in relation to an accident occurring in the Territory - a motor vehicle -

(i)

owned or driven by a resident of the Territory;

(ii)

owned by a company or corporation incorporated in the Territory; or

(iii)

owned jointly by a resident of the Territory and another person,

and not currently registered outside the Territory except by virtue of having been registered or re-registered within the Territory under the Interstate Road Transport Act 1985 of the Commonwealth; ... ."

Part II of the MAC Act, which bears the heading "LIABILITY", contains, in addition to s 5 which is set out above, s 6 which provides for the Territory Insurance Office to provide certain indemnities.  Section 6 is in the following terms:-

"(1)

Subject to subsection (2), where a person is liable to pay damages in respect of the death of or injury to any person in or as a result of an accident-

(a)

that occurred in the Territory and at the time of that accident the first-mentioned person was in control of a motor vehicle other than a Territory motor vehicle; or

(b)

that occurred in any place, whether or not in the Territory, and at the time of that accident the first-mentioned person was -

(i)

the owner of the Territory motor vehicle involved in the accident and in respect of which he was so liable; or

(ii)

in control of a Territory motor vehicle,

the Office shall indemnify him or his personal representatives to the extent of his liability.

(2)

The Office is not bound to indemnify a person under subsection (1) where that person is already indemnified under any contract of insurance or under the law applicable in the place where the accident occurred."

Part III of the MAC Act is headed "Entitlement to Benefits".  It provides for the payment of benefits under that Act "where a resident of the Territory dies or suffers injuries in or as a result of an accident that occurred in the Territory or in or from a Territory motor vehicle".  It also makes discretionary provision for a person who at the date of the accident was likely to reside or to have resided in the Territory for a specified period to be treated for the purposes of the MAC Act as a resident of the Territory.  It provides that certain persons are not entitled to benefits under the MAC Act.  Such persons include persons involved in the relevant accident while driving a motor vehicle while under the influence of alcohol or a drug; persons convicted of certain offences in respect of the relevant accident where alcohol, drugs or the manner of driving giving rise to the conviction, in the opinion of the Board of the Territory Insurance Office, substantially contributed to the accident; persons at the time of the relevant accident involved in motor sport; and persons driving in other than in emergency situations, while unlicensed.

Also of significance, in my view, is s 40A of the MAC Act.  It provides as follows:-

"(1)

Subject to subsection (5), a claim for damages in respect of the death of, or injury to, a person who was not at the time of the accident a resident of the Territory caused by or arising out of an accident in the Territory involving a motor vehicle-

(a)

that was not a Territory motor vehicle; and

(b)

in relation to which there was not in force a policy of insurance complying with the provisions of a law in force in a State or another Territory requiring the owner or driver of a motor vehicle to be insured against liability in respect of the death of, or injury to, any person caused by or arising out of the use of the motor vehicle,

shall lie, and may be enforced, against the Office [i.e. Territory Insurance Office] and not against the owner or driver of the motor vehicle.

(2)

A claim referred to in subsection (1) may be made and proceedings may be taken notwithstanding that the owner or driver of the motor vehicle referred to in that subsection is dead or cannot be found.

(3)

Subject to subsection (5), where the death of, or injury to, a person is caused by or arises out of an accident in the Territory involving a motor vehicle but the identity of the motor vehicle cannot, after due inquiry and search, be established, any person who could have enforced a claim for damages against the owner or driver of the motor vehicle in respect of the death or injury may enforce against the Office the claim that he could have enforced against the owner or driver of the motor vehicle.

(4)

(not here relevant)

(5)

An action to enforce a claim referred to in this section shall not lie against the Office unless notice of intention to make a claim is given by the claimant to the Office within a period of 3 months after the occurrence out of which the right to make the claim under this section arose, or within such further period as the court, upon sufficient cause being shown, allows."

In my view the MAC Act, read as a whole, discloses that s 5(1) of the MAC Act is intended to be limited in its operation to an action for damages allegedly caused by the conduct of a person in charge of a motor vehicle or otherwise allegedly caused by the use of a motor vehicle.  In most, if not all cases, such action may be expected to be founded upon the tort of negligence.

A reading of the MAC Act as a whole does not disclose, in my view, an intention to make the Territory Insurance Office, or the compensation contributions payable under the Motor Vehicles Act 1949 (NT), a source of indemnity or compensation in respect of injuries or death claimed to be caused, not by the conduct of a person in charge of a motor vehicle, or otherwise by the use of a motor vehicle, but rather claimed to be caused by, as in this case, the misleading and deceptive conduct of a corporation and the unconscionable conduct of a corporation and persons not alleged to have driven or owned any relevant motor vehicle.

This conclusion says nothing of itself as to whether the claim made by the applicant in this proceeding can, as a matter of law, succeed.  The claim as formulated, in my view, falls outside the ambit of s 5(1) of the MAC Act.  If it fails to disclose a reasonable cause of action, this will not, in my view, be by reason of s 5(1) of the MAC Act:  it will be because it fails to establish a cause or causes of action under the TP Act.  It seeks to invoke no cause or causes of action other than statutory causes pursuant to the TP Act.

My above conclusion makes it unnecessary for me to consider whether the MAC Act would be a valid law of the Territory if on its true construction it disclosed an intention to deprive a person of a cause of action otherwise available to them under the TP Act.  I record, however, my agreement with the conclusion reached by O'Loughlin J in this regard.

I also note that the Court was advised by the solicitor for the Attorney General of the Northern Territory, who was an intervenor in this proceeding, that the Administrator of the Northern Territory ("the Administrator") had given his assent to the MAC Act pursuant to s 7(2)(a) of the Northern Territory (Self-Government) Act 1978 (Cth) ("the Self-Government Act").  Section 7(2)(a) of the Self-Government Act has application in respect of proposed laws making provision only for or in relation to matters specified under s 35 of that Act.  The Northern Territory (Self-Government) Regulations specify certain matters for the purpose of s 35 of the Self-Government Act.  Assuming, without deciding, that the Bill for the MAC Act was a proposed law making provision in relation to a matter so specified, if it were a proposed law intended to restrict the operation in the Northern Territory of the TP Act, it seems to me to be difficult to conclude that it made provision only in relation to such matter.  Indeed subregulation 4(4) of the Northern Territory (Self-Government) Regulations, although not a model of clarity, would seem to have the consequence that the procedure of the Administrator giving of assent to a proposed law pursuant to s 7(2)(a) of the Self-Government Act is not available in respect of a proposed law to the extent that such proposed law would, if enacted, be inconsistent with a law of the Commonwealth in force in the Territory.  The TP Act is such a law.

In my view, Question 1 must be answered, No.

QUESTION 2

Question 2 is set out above.

By paragraph 4(b) of the first respondent's defence, it is pleaded that "the rule in Baker v Bolton (1808) 1 Camp 493; 170 ER 1033 precludes the applicant and the children from claiming any relief pursuant to the Trade Practices Act; ...".

In Baker v Bolton Lord Ellenborough held that in "a civil Court, the death of a human being could not be complained of as an injury".  In the Territory the right to bring an action consequent upon the death of a person derives from the Compensation (Fatal Injuries) Act 1974 (NT) ("the CFI Act").

Section 7(1) of the CFI Act provides as follows:-

"Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such that it would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect of the injury, the person who would have been liable, if the death had not ensured, is liable to an action for damages notwithstanding the death of the person injured and irrespective of whether the death of that person was caused by circumstances that amount in law to a crime."

However, s 5(2) of the CFI Act limits the application of that Act.  The sub-section is in the following terms:-

"This Act does not apply to or in relation to a death occurring in or as a result of an accident within the meaning of the Motor Accidents (Compensation) Act, except in those circumstances in which an action in respect of that death is not precluded by that Act."

The primary submission made on behalf of the applicant with respect to Question 2 is that the issue of whether the applicant may recover damages pursuant to ss 82 and 87 of the TP Act on her own behalf, and as the next friend of her three children, is to be determined as a matter of construction of the TP Act, and in particular ss 51AA(1), 52(1), 82 and 87.  In my view, this submission is plainly correct.  In Brown & Anor v Jam Factory Pty Ltd & Anor (1981) 53 FLR 340 at 348 Fox J stated:-

"Section 52(1) is a comprehensive provision of wide impact, which does not adopt the language of any common law cause of action.  It does not purport to create liability at all; rather does it establish a norm of conduct, failure to observe which has consequences provided elsewhere in the same statute, or under general law.  ...  In my view effect should be given to the ordinary meaning of the words used.  They should not be qualified or (if it be possible) expanded, by reference to established common law principles of liability."

In my view, a similar approach to that adopted by Fox J in the Jam Factory Case is appropriate here.  That is, the ambits of ss 51AA, 52, 82 and 87 respectively should be determined, in my view, by reference to the language of each of those sections.

The terms of s 52(1) of the TP Act are set out above in the quoted passage from the reasons for decision of the primary judge.  Section 51AA(1) of the TP Act provides as follows:-

"A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories."

Section 82(1) of the TP Act provides as follows:-

"(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention."

It is not clear which subsection of s 87 the applicant proposes to place reliance upon.  I shall act on the assumption that it is s 87(1) which is proposed to be invoked.  So far as is here relevant, s 87(1) of the TP Act provides as follows:-

"Without limiting the generality of section 80 [which concerns injunctions], where, in a proceeding instituted under ... this Part, the Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer loss or damage by conduct of another person that was engaged in ... in contravention of Part IV, IVA or V, the Court may ... make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention ... if the Court considers that the order or orders concerned will compensate the first-mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage."

Section 4K of the TP Act elucidates the meaning of the expression "loss or damage" as used in the TP Act.  It provides as follows:-

"In this Act -

(a)

a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and

(b)

a reference to the amount of any loss or damage includes a reference to damages in respect of an injury."

In its ordinary meaning "injury" extends to "harm of any kind done or sustained" (The Macquarie Dictionary 2nd Edition).  In such meaning it plainly includes bodily or personal injury and extends to other forms of harm.  As a legal expression "injury" connotes an actionable wrong (Crofter Hand Woven Harris Tweed Co v Veitch & Anor [1942] AC 435 at 442 per Viscount Simon L.C.).  Some circularity would seem to result from giving "injury" in s 4K of the TP Act this technical legal meaning.

Counsel for the first respondent contended that "loss or damage" within the meaning of the TP Act does not include personal injury.  He placed reliance on the express reference in ss 75AD and 75AE of the TP Act to "injuries".  First, I note that it cannot necessarily be assumed that "injury" and "injuries" mean the same thing.  Secondly, as counsel for the applicant pointed out, Part VA was introduced into the TP Act well after ss 4K, 52 and 82.  It was introduced to implement a 1985 European Community Product Liability Directive (Hansard (Senate) 19 December 1991 p5093).  It is not readily to be assumed, in my view, that it throws light upon the proper construction of pre-existing provisions of the TP Act.

I note that in Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 , in the joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ, it was noted, at 600, without comment, that it was not disputed in that case that if the misleading and deceptive conduct alleged was to be attributed to the appellant, the respondent could claim pursuant to s 82 of the TP Act in respect of personal injuries suffered as a consequence of such conduct.  Each of Brennan, Toohey and McHugh JJ appears to have assumed that a claim for personal injuries could be brought in reliance on ss 52 and 82 of the TP Act.  Concrete Constructions (NSW) Pty Limited v Nelson, in my view, provides some support for the view that s 82 is not to be read, as counsel for the first respondent contended, as excluding claims for personal injuries.

As Toohey J pointed out in Brabazon v Western Mail Ltd (1985) 58 ALR 712 at 719, the words "loss or damage" are wide in their operation (see also Aristotite v Gladstone Park Shopping Centre Pty Ltd (1983) 71 FLR 276 ; Steiner v Magic Carpet Tours Pty Ltd (1984) ATPR 40-490 at 45,642; Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd & Ors (1986) 65 ALR 500  at 523-525; Baxter & Anor v British Airways PLC & Anor (1988) 82 ALR 298 at 305 and Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445 ).

It seems to me that the word "injury" in s 4K of the TP Act is intended to take on its ordinary meaning and not a strict legal meaning.  So understood, it seems to me that s 4K of the TP Act emphasises the width of the expression "loss or damage" appearing in ss 82 and 87 of that Act.  I see no reason to read down the plain words of ss 82(1) and 87(1) of the TP Act by reason of the common law rule in Baker v Bolton. In my view the rule in Baker v Bolton has no application with respect to claims brought pursuant to ss 82 and 87 of the TP Act.

In the written submissions of counsel for the applicant it is contended:-

"It is open on the pleadings ... for the appellant to prove that she and her children are persons who have suffered injury, loss and damage by reason of the following facts:

a.

Each of them was financially dependant upon, and entitled as a matter of law to support from, the deceased.

b.

The appellant has incurred funeral expenses and the costs of erecting a memorial to her husband.

c.

The appellant has lost the consortium of her husband.

d.

The appellant and her children have suffered grief and other emotional distress.

e.

The children have lost the parental guidance and care of their father."

On the assumption that the applicant can establish the necessary connection between the above factors and the conduct of the respondents of which she complains, I accept that it is so open to the applicant on the pleadings.

In my view, Question 2 should be answered, No.

QUESTION 3

Question 3 is set out above.

By subparagraph 1.5A of their defence, the second respondents have denied "the entitlement of the Applicant to maintain the within proceeding, whether suing on her own behalf, on behalf of the Estate, and/or on behalf of the Children" on the ground that "neither the Applicant, nor the Estate nor the children have suffered 'loss or damage' within the meaning of s 82 or s 87 of the Trade Practices Act".

By paragraph 4 of the defence of the first respondent it is pleaded that "the proceedings are not maintainable by the applicant on her own behalf, nor on behalf of the Estate nor on behalf of the Children".  The particulars of such plea provided by subparagraphs 4(d) and 4(g) are as follows:-

"(d)

any loss or damage suffered by the applicant or the children (which is denied) arises from the death of the deceased and is therefore not recoverable pursuant to the provisions of the Trade Practices Act;

...

(g)

s 82 of the Trade Practices Act does not enable an estate or the representative of an estate to recover the amount of the loss or damage suffered by conduct of another person that was done in contravention of a provision of Part IV or V of the Act."

As is set out above under the heading "Question 2", I see no reason to read down the expression "loss or damage" appearing in ss 82 and 87 of the TP Act whether by reference to the rule in Baker v Bolton or otherwise so as to exclude loss or damage (as defined by s 4K of the TP Act) suffered by reason of the death of any person.

However, in my view, the estate of the deceased can not satisfy the statutory requirement of s 82 of the TP Act of being a "person" who suffers loss or damage.  Nor can the estate, in my view, satisfy the statutory requirements of s 87 of the TP Act of being "a person who is a party to the proceeding" or "a person who has suffered, or is likely to suffer, loss or damage" (Park & Others v Allied Mortgage Corporation Limited & Ors (1993) ATPR 46-105 at 53,469; National Mutual Property Services (Australia) Pty Ltd & Ors v Citibank Savings Limited & Ors (No 1) (1995) 132 ALR 514 ).

For similar reasons to those set out under the heading Question 2 concerning the rule in Baker v Bolton, I am of the view that the Law Reform (Miscellaneous Provisions) Act 1956 (NT), which provides for the survival of actions to the estate of a deceased person, has no relevance to the proper construction of ss 82 and 87 of the TP Act.

In my view, Question 3 should be answered, as to the applicant and the children, Yes, but as to the estate, No.

QUESTION 4

Question 4 is set out above.

It was contended on behalf of the applicant that "[i]f s 82(1) by itself does not give the [applicant] a remedy, or a sufficient remedy, ss 79 & 80 of the Judiciary Act 1903 operate to pick up s 7(1) of the Compensation (Fatal Injuries) Act (NT), thereby filling in the insufficiency created by the absence of a Commonwealth law equivalent to Lord Campbell's Act ...".

Sections 79 and 80 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") provide as follows:-

"79.

The laws of each State or Territory, including the laws relating to procedure, evidence and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

80.

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters."

If the TP Act on its proper construction does not give rise to a right of action on behalf of a deceased estate, nothing in the Judiciary Act can, in my view, be relied upon as creating such a right of action.  Any attempt to use ss 79 and 80 of the Judiciary Act in this way would, in my view, result in an attempt to use a law of the Territory or the common law in a way inconsistent with a law of the Commonwealth.

For the reasons given under the heading Question 3 above, I do not consider that any claim can be made on behalf of the estate of the deceased pursuant to ss 82 or 87 of the TP Act.  I consider that Question 4 should be answered as to paragraph (a), No, and as to paragraph (b), Yes.

QUESTION 5

For the reasons discussed above, I consider that Question 5 should be answered, No.

QUESTION 6

The precise issue intended to be raised by Question 6 is, in my view, unclear.

The only subparagraphs of paragraph 4 of the defence of the first respondent to which reference has not already been made in these reasons are the following:-

"(c)

if the First Respondent breached the provisions of either s 51AA or s 52 of the Trade Practices Act (which is denied) any loss or damage suffered by the applicant and the children (which is denied) was not caused and is not alleged to be caused by reliance of either the applicant or the children on the conduct of the first respondent"

and  

"(e)

the applicant and the children have elected to receive benefits pursuant to the Motor Accidents [sic] (Compensation) Act (NT) and are thereby precluded from exercising any right of action pursuant to the Trade Practices Act (which is denied)."

I turn first to consider the issue of reliance.

It is plain that it is not an essential element of a cause of action brought pursuant to s 52 of the TP Act that the applicant relied upon the conduct of the respondent sought to be characterised as misleading or deceptive or likely to mislead or deceive.  The rival trader cases make this clear (R v Federal Court of Australia; ex parte Pilkington A.C.I. (Operations) Pty Ltd (1978) 142 CLR 113 ; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 ; Concrete Constructions (NSW) Pty Ltd v Nelson).

Whether a person is one who "has suffered, or is likely to suffer, loss or damage by conduct of another person" within the meaning of s 87(1) of the TP Act is essentially a question of fact.

In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525 Mason CJ said as to s 82 of the TP Act:-

"The statutory cause of action arises when the plaintiff suffers loss or damage 'by' contravening conduct of another person.  'By' is a curious word to use.  One might have expected 'by means of', 'by reason of', 'in consequence of' or 'as a result of'.  But the word clearly expresses the notion of causation without defining or elucidating it.  In this situation, s 82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this court in March v Stramare (E. & M.H.) Pty. Ltd. (1991) 171 CLR 506 , except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act.  Had Parliament intended to say something else, it would have been natural and easy to have said so."

It seems to me that the words of the Chief Justice are equally applicable to s 87(1) of the TP Act.

In March v Stramare (E. & M.H.) Pty Ltd at 509 Mason CJ pointed out that "at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage".  It is, in my view, for the reasons discussed by the learned Chief Justice in that case, of little assistance here to debate whether or not the "real cause" of the death of the deceased was the driving of the vehicle which caused the accident.

It is incumbent upon the applicant to establish as a matter of fact that the loss and damage which she claims that she and her children have suffered was "caused or materially contributed to" by the conduct of the respondents of which she makes complaint (March v Stramare (E. & M.H.) Pty Ltd per Mason CJ at 514).  Until the evidence to be called on her behalf in this regard is complete, it seems to me that no confident answer can be given to the question of whether she and her children are persons entitled to claim pursuant to s 87 of the TP Act.  In my view it would be premature to attempt to apply "common sense to the facts of [the] ... particular case" (March v Stramare (E. & M.H.) Pty Ltd per Mason CJ at 515) earlier than that time.  Nothing in the TP Act, in my view, requires the practical or common sense concept of causation to be modified or supplemented in the circumstances of this case.  For the reasons discussed above, it does not seem to me that the TP Act discloses an intention necessarily to exclude recovery pursuant to s 87(1) for loss and damage resulting from death or motor vehicle accidents.

The fact, if it be a fact, that the applicant and her children have elected to receive benefits pursuant to the MAC Act does not, in my view, preclude their exercise of any rights of action pursuant to the TP Act.  The contention that it does was not pressed before this Court.  The respective benefits obtained by them under the MAC Act might well impact on the amount of their respective recoveries under the TP Act, assuming, of course, that they establish an entitlement to any such recovery.

In my view Question 6 should be answered, Yes.

ADDITIONAL QUESTION - UNCONSCIONABLE CONDUCT

The first of the additional questions formulated for decision at the trial of questions 1 - 6 raises the issue of whether the statement of claim so far as it contains allegations of unconscionable conduct and a breach of s 51AA of the TP Act discloses a reasonable cause of action.

The factual allegation pleaded in support of the claim of unconscionable conduct may be summarised as follows:-

(a)

the first respondent knew that the executive government of the Territory, its officers and the Police had no experience in conducting events like the Rally;

(b)

the first respondent knew that the public, the executive government of the territory, its officers, the Police and Rally officials trusted and relied upon the first respondent to advise them in order to ensure that the Rally was safely conducted in accordance with the law and without exposing the public or the Rally officials to an unreasonable risk of injury;

(c)

in breach of a duty owed by the first respondent to the public, the executive government of the Territory, its officers, the Police and Rally officials, and acting in its own interests, the first respondent determined to conduct the Rally in a manner that was unsafe with respect to the public and Rally officials and thereby acted unconscionably within the meaning of s 51AA of the TP Act;

(d)

The second respondents knew that the executive government of the Territory, its officers, the Police, members of the Darwin Motor Sports Club Inc. and Rally officials relied upon the permit issued by the second respondents to the first respondent, and upon representations made by the second respondents to them that it would act in their best interests, and that it was qualified to control the Rally and had satisfied itself, and had put in place necessary controls to ensure, that the Rally would be conducted safely;

(e)

in breach of a duty to act in the interests of the public, the executive government of the Territory, its officers, the Police, the members of the Darwin Motor Sports Club Inc. and the Rally officials, the second respondents issued a permit for the Rally when it should have known that the Rally would not be conducted safely;

(f)

had the respondents respectively not acted unconscionably, the Rally would not have been permitted to occur, or alternatively would only have been permitted to occur on terms that it be conducted safely, or in the further alternative the deceased would not have acted as a Rally official.

(g)

the deceased's death was caused by the respective breaches by the first and second respondents of s 51AA of the TP Act and by reason of such breaches the applicant, the estate and the children have suffered loss and damage.

As the learned primary judge pointed out, s 51AA of the TP Act extends the remedies available under the TP Act to unconscionable conduct to the extent that such concept is already part of the general law.  The section does not expand equitable concepts of unconscionable conduct.

Senior counsel for the applicants based his argument on s 51AA of the TP Act principally upon the allegations in the statement of claim designed to support findings that the first and second respondents respectively owed fiduciary duties to the deceased.  He contended that, to the extent that the learned trial judge acted on the basis that s 51AA was limited in its operation to "unconscionable dealing", in the sense that that expression was used by Deane J and Dawson J in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 , he was in error.  It was contended on behalf of the applicant that the words "conduct that is unconscionable" appearing in s 51AA of the TP Act comprehend all of the categories of conduct which have traditionally been regarded as fraudulent in equity.  He drew attention to the six categories of equitable fraud identified by the learned authors of Equity: Doctrines and Remedies, Meagher, Gummow and Lehane, 3rd ed at par 1210.

I note that in Commercial Bank of Australia Ltd v Amadio at 461, Mason J considered the usual meaning of the expression "unconscionable conduct" in the following passage:

"Historically, courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds.  They include fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct.  In one sense they all constitute species of unconscionable conduct on the part of a party who stands to receive a benefit under a transaction which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience.  But relief on the ground of 'unconscionable conduct' is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage, e.g., a catching bargain with an expectant heir or an unfair contract made by taking advantage of a person who is seriously affected by intoxicating liquor.  Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two."

In the same case, Deane J, with whom Wilson J agreed, at 474, stated as follows:-

"The equitable principles relating to relief against unconscionable dealing and the principles relating to undue influence are closely related.  The two doctrines are, however, distinct.  Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party. ... Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.  The adverse circumstances which may constitute a special disability for the purposes of the principles relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible of being comprehensively catalogues [sic]."

It seems to me likely that the expression "conduct that is unconscionable" appearing in s 51AA of the TP Act is intended to have the same meaning as the more frequently used expressions "unconscionable conduct" and "unconscionable dealings".  It may therefore be debatable whether s 51AA has a sphere of operation quite as wide as that for which Mr Maurice QC, senior counsel for the applicants, contended.  It cannot, however, in my view, be said that the argument in favour of a wide construction of s 51AA is untenable or doomed to failure (Murex Diagnostics Australia Pty Ltd v Chiron Corporation (1995) 128 ALR 525 ; General Steel Industries Ltd v Commissioner for Railways (1964) 112 CLR 125 ; Walton v Gardiner (1993) 177 CLR 378 ).

Although Mr Maurice disclaimed any reliance on "the unconscionable bargain type of situation", he did assert an abuse by the respondents respectively of the relationships between them and the deceased.  He emphasised the vulnerability of the deceased, who was recruited as a volunteer to act in the interests of the respondents, to exploitation by the respondents if they did not fulfil their undertakings to him and others. The statement of claim pleads that each of the respondents knew that persons in the class to which the deceased belonged trusted and relied upon them as to important matters, and that they acted in disregard of such trust and reliance.

It has been said on a number of occasions that it is impossible to describe all of the situations in which relief will be granted on the ground of unconscionable conduct (see Blomley v Ryan (1956) 99 CLR 362 per Fullagar J at 405; Commercial Bank of Australia Ltd v Amadio per Mason J at 461-462 and Deane J at 474).  Moreover, the categories of fiduciary relationships are not closed (Hospital Products Limited v United States Surgical Corporation & Ors (1984) 156 CLR 41 esp. per Gibbs CJ at 68, Mason J at 96 and Dawson J at 141-142).  In Breen v Williams (1994) 35 NSWLR 522 at 543-544, Kirby P stated certain propositions and cited authority in support of them.  Such propositions include the following:-

"1.

The fiduciary principle is in a state of development whose impetus has not been spent to the present day ...;

2.

As society becomes more complex, it is both necessary and appropriate for courts of equity to recognise new fiduciary allegations and to protect incidents of new or changing relationships ...;

3.

What began with the trustee-beneficiary relationship ... has extended, by analogical reasoning, to other relationships including trust and confidence ...;

...

6.

A person may be in a fiduciary position in some parts of his or her activities and not other parts."

In my view, it cannot be said that the pleading on behalf of the applicants of a cause of action based upon s 51AA of the TP Act is so plainly doomed to failure that it ought to be struck out at this stage of the proceedings.  Conclusions as to whether particular conduct should be characterised in equity as unconscionable are based upon careful examination of the facts of each particular case.  Such consideration involves, amongst other things, an examination of the precise relationship between the relevant parties, and consideration of their respective capacities and vulnerabilities (if any) in the circumstances in which they were involved the one with the other (Jenyns v Public Curator (Q) (1952) 90 CLR 113 at 118-119 and 132-133). 

As Spender J pointed out in Capro Group Pty Ltd v Janbrett Consultants Pty Ltd (1994) ATPR 41-298 at 41,978, in respect of an application for summary dismissal:-

"It is plain that it is only in a clear case that a proceeding should be summarily dismissed.  Further, it seems to me that it is not appropriate to adopt that course where the matter involves serious and difficult questions of law and which questions moreover may be dependent on what is in truth the facts as established by the evidence."

The same approach is to be taken with respect to an application to strike out certain portions of a pleading on the basis that they fail to disclose a cause of action.

I would answer the first of the additional questions, No.

As to the second of the additional questions, I would answer it, No, for the reasons given in answer to Question 6 above.

In my view, the appeal against the order of O'Loughlin J whereby his Honour ordered that there be judgment for the first respondent and the second respondents should be allowed.  The appeal against his Honour's orders striking out certain paragraphs of the statement of claim should be allowed.  In lieu of the answer given by his Honour to the question tried by him, I would substitute answers as follows:-