O'Neill v Medical Benefits Fund of Australia [2002] FCAFC 188

FEDERAL COURT OF AUSTRALIA

O'Neill v Medical Benefits Fund of Australia [2002] FCAFC 188 PRACTICE & PROCEDURE - Application under s 82 of the Trade Practices Act for damages resulting from contravention of s 52 – where alleged misleading and deceptive conduct relates to misrepresentations as to future matters – where s 51A not specifically pleaded – where proceedings brought in the Federal Magistrates Court and subject to the rules of that Court – whether a respondent must be put on notice that s 51A is relied upon before an applicant can derive the benefit of that provision - whether the respondent was put on notice. DAMAGES - calculation of damages – where the Magistrate found that there was insufficient evidence on applicant's loss to assess what damage, if any, had been sustained – where no damages awarded by the Magistrate – where some oral evidence had been led, on the basis of which, calculations could be made – whether the amount of damages had been proved with as much certainty as was reasonable in the circumstances.

Trade Practices Act 1974 (Cth) ss51A, 52 and 82 Federal Magistrates Court of Australia Act 1999 (Cth) ss42 and 45 Cummings v Lewis (1993) 41 FCR 559 referred to Australian Competition & Consumer Commission v IMB Group Pty Ltd [1999] FCA 819 referred to Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 referred to Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 referred to Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 referred to Gregory v Philip Morris Ltd (1988) 80 ALR 455 referred to Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 referred to J.L.W. (Vic.) Pty Ltd v Tsiloglou [1994] 1 VR 237 referred to Ratcliffe v Evans [1892] 2 QB 524 referred to

KEVIN O'NEILL v MEDICAL BENEFITS FUND OF AUSTRALIA LTD V1220 OF 2001 MEDICAL BENEFITS FUND OF AUSTRALIA LIMITED v KEVIN O'NEILL V1266 OF 2001 CARR, MOORE AND MARSHALL JJ MELBOURNE 17 JUNE 2002