KV CATCHWORDS PRACTICE AND PROCEDURE - misleading and deceptive conduct applicant seeking to lead evidence of representations made by other agents of the respondent to persons other than the applicant - application of principle of similar facts - factors to be considered - evidence not admitted. Trade Practices Act 1974 CARMEL MADONNA ROYCE v. CAFRED PTY LIMITED (First Respondent) and NARWIN ENTERPRISES PTY LTD TRADING AS QUEENSLAND FINANCE AND LAND (Second Respondent) Qld G86 of 1984 SPENDER J. BRISBANE 31 OCTOBER 1984 IN _THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) OL!' GBe of lard GENERAL DIVISION ) BETWEEN : CARMEL MADONNA BOYCE Apr dicant AND: CAFFED PTY LIMITED First bespondent AND: NARWIN ENTERPRISES PTY LTD TRADING AS QUEENSLAND FINANCE AND LAND Second Respondent ORDER JUDGE MAKING ORDER: SPENDER 7. DATE OF ORDER: 31 OCTOBEF 184 'WHERE MADE: BRISBANE THE_COURT ORDERS THAT: The evidence cf David James Burrell, Heien Michelle Burrell and Leslie Anne Hendrick sough! to be led by the applicant not be admitted. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD Gke of LYya4d GENERAL DIVISION ) BETWEEN : CARMEL MADONNA BOYCE Applicant AND: CAFRED PTY LIMITED First Respondent AND: NARWIN ENTERPRISES PTY LTD TRADING AS QUEENSLAND FINANCE AND LAND Seccnd Respondent SPENDER J. 3]. GCTOBER 1984 EXTEMPORE REASONS FOR JUDGMEN'' In this case, counsel for the applicant seexs to lead evidence in respect of conversations said to have taken place between other purchasers of first respondent's land and agents of the vending company, different from the agent said to have made =) the representation in this particular case. Tris apelication is for relief pursuant to the Trade Practices Ac- 1974 ("the Act") in respect of the payment of money as a deposit for the purchase of a block of land. 2. It is alleged that, in respect of the to the paying of the money, a representation of the respondents to the effect that the land contract was not subject to flooding. The sought to be led as similar facts is to the Salesmen to other purchasers in respect of conduct antecedent was made on behalf the subject of the evidence tnat is effect that other Jand inthe same geographical location made similar representations. Reliance 1s placed first on the observations by Northrop J. in Master Figgins Pty Ltd v. Centrepoint Freenolds Pty Ltd (1981) 36 A.L.R. 23 where his Honour said at p 24: "The substantive question to be determined is whether the evidence proposed to be given by the eight witnesses has any probative force in relation to a fact in issue. The generaj principle is that proof of 'similar facts' done by a party to litigation does not tend to prove that the party did a particular act in issue alleged in litigation. The general principle is stated in Cross on Evidence, Second Australian Edition, para. 14.2, p.342, as follows: 'Evidence of the misconduct of 3 party on other occasions (including nis possession of incriminating materiai'd must not be given if the only reason why it 15 substantially relevant is that it shows 4 disposition towards wrongdoing in general, or the commission of the particular crime or civil wrong with which such party 15 charged, unless such a disposition is of particular relevance to a matter in issue proceedings.' This is a general principle and many instances where evidence of in the there are 'similar facts' is admissible. Thus evidence of 'similar facts' 1s admissible where the facts include 'circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed.' This principle was discussed by Dixon J, as ne then was, in Martian -. Osborne (1936) 55 C.L.R. 367 at 375-6, as fclimwe: 'Tf an issue ais to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must Le established from which the conclusion tcllew: as a rational inference. In the inculpaticn of an accused person the evidentlaty circumstances must bear no other reasonabl= explanation. This means that, according ta the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients ot the transaction itself or explain of make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are, in general, not matters which it is lawful to take into account, and evidence disclosing ther, 1f£ not otherwise relevant, 18 rigidly excluded. Eur the class of acts and occurrences that may be considered includes circumstances whoveé relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to he proved also existed. The application of this, as of any other general statement about relevancy is subject to the wel] -xnown specific rules oft exclusion. For instance, the rule against hearsay and the warring implied in the descriptive phrase res inter alios acta lead to the exclusion of evidences not only of what a stranger to the cause has said but also of what he has done, if it 15 offered to prove his knowledge of some fact and thus the existence of that fact, notwithstanding that the fact itself he relevant and its proof by another medium be receivable. But it is at least true, I think, that the acts of a party are admissible against him whenever they forma component 1n a combination of circumstance: which is unlikely to occur without the fa_t in issue also occurring. The repetition cf acts or occurrences 13 often the very thang which makes 1t probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity with which a course 4. of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved.' His Honour then referred to a number of cases illustrating the application of those principles. Section 52(1) of the Act provides that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Under 3.80 of the Act, the court is empowered, on the application of specified persons, to grant an injunction restraining a person from engaging in conduct that constitutes a contravention of s.52(1). In the present case, the applicant alleges that the representations by Mr Robertson constitute conduct which contravenes s.52(1) of the Act. That conduct has now ceased, but on the assumption that it was continuing and the applicant was seeking an injunction under s.80 of the Act, evidence of representations made by Robertson would be admissible to prove that conduct. The applicant is seeking damages under s.82(1) ef the Act which provides that a person who suffers loss or damage by conduct of another person that was done in contravention of s.52(1) may recover the amount of the loss or damage against that other person. In order to succeed in its claim the applicant must establish that it suffered loss or damage by the conduct of the respondent. On the facts of the present case an essential feature in establishing the claim appears to be that the applicant knew of that conduct. In these circumstances counsel for the respondent contended that since the knowledge of the applicant was an essential feature of the applicant's case, evidence of similar representations made to other persons was irrelevant to tend to prove that the representations were made to the applicant and he contrasted the provisions of 8.80 of the Act. Put another way, his submission was that the fact that the representations, even if constituting conduct under s.52, were made to other persons, does not tend to prove that the representations, even if constituting conduct under s.52, were made to the applicant. He contended that the evidence of the eight witnesses was not logically probative of the fact in issue. I do not accept that contention." rt 23a very Jeuvy wassuse, but the erfec. Ff it 21 wt that h2s Honour accepted tnat tne making of similat rerprceseantatiens to eight other prospective tenants by Mr Pubertecn, Fro was the representor in the particular case, was losically protative cf ai the issue of the raking of the misrepresentatinon in question Tn particular he said: "... The representations, if conetitutinr. conduct of the requisite kind, estazlished pattern wnich would lead to support the praod of the fact in issue. The evidence cf th eight witnesses would, ain my opinien, hav probative value and is logicaliy propative u a fact in issue." pus ep od tt mater, Northrop J. made reference to Mood Muvoe Pubiiching Co. utd v De Wolte Ltd C1972] Ch. 119, where Lord lenning If1.5. sata , at p.127: "The admissibility of evidence az to 'similar facts' has been much considered in tne criminal law. Zore of them have reached the highest tribunal, the latest cf cnem being keg v. Boardman £19753 A.C. 42l. The criminai courts have been very careful not to admit such evidence unless its ;robatzi value is so strong that it should he receiv in the interests of justice: and oi admission will nct operate unfairly to the accused, In civil cases the courts have followed a similar line but have not been 23 chary of admitting it. In civil cases the courts will admit evidence of similar racts 1f it 13 logically probative, that 15, is logically relevant in derermininy the matter which 15 1n 1ssue: provided that 1t 1s not oppressive ar urfair to the other side: and also that the other siis has far notice of it andis able to déai with it. ' Te Lc wb ra i Instances are Brown v. Eastern & Midlands Railway Co. (1889) 22 Q.B.D. 391; Moore v. Ransome's Dock Committee (1898) 14 T.L.R. 539 and Hales v. Kerr £1908] 2 K.B. 601." And Northrop J. commented that "The cases therein referred to do not seem to support the general principles stated". Reference has also been made to Ellicott J. in Gates v. City Mutual Life Assurance Society Ltd (1982) 43 A.L.R. 313, where his Honour said at p.327: "As stated earlier, the applicant also relied on the similar fact evidence of some five witnesses. Such evidence is admissible if its relation to the fact in issue (in this case, whether the representations alleged were made) consists in the probability or increased probability that it would not be found unless the fact to be proved also existed (see Martin v. Osborne (1936) 42 A.L.R. 261)." For my part, the principle on which similar facts are admissible has not changed since Makin v. The Attorney-General for New South Wales (18947 A.C. 57. The High Court has very recently had occasion to consider it: Perry v. The Queen [£1983] 57 A.L.J.R. 110 and more' recently still in Sutton v. The Queen (1984) 58 A.L.J.R. 60. In the former case the Chief Justice and Wilson and Brennan JJ. held that to render legally admissible evidence of the commission by an accused person of crimes similar to that with which he is charged on the ground that the evidence tends to show that he is guilty of the crime charged for 30mé reason other than that he has a propensity to commit crimes of that sort or 15s the sort of person likely to commit such crimes, such evidence must have a strong degree of probative force, and there must be a real nexus, judged according to experience and common sense, between the evidence and the fact in issue, which may be the conduct charged, the identity of the culprit or his state of mind. It is not sufficient that it should have merely scme degree of probative force, or that it raises a suspicion that the accused may have been guilty of the similar crimes or the crime charged. In Sutton supra the Chief Justice said: "To be admissible similar fact evidence must be strongly probative of the offence charged; some probative value is not enough." And Brennan and Deane JJ held that: "Before the trial judge ig at liberty to admit similar fact evidence he must be satisfied that 1ts probative force (or cogency) clearly transcends its merely prejudicial effect." I respectfully agree with the approach of St John J. in H.W. Thompson Building Pty Ltd v. Allen Property Services Pty Ltd (1983) A.T.P.R. 40-371, where his Honour refused to admit evidence sought to be adduced by the respondent that other 8. purchasers had been induced to enter into similar contracts because of similar conduct to that relied upon by the applicants. My view is that, applying the approach of Sutton and Perry, the evidence that other agents - or indeed the same agent of a respondent - made similar representations to other purchasers on other occasions even if the evidence establishes propensity, or that the respondent is the sort of person to make that sort of representation lacks that degree of probative force necessary to make it admissible. In a recent case at first instance in England, Berger v. Raymond Sun Ltd €1984] 1 W.L.R. 625, Warner J. held that: "(1) ... evidence of similar facts was only admissible in civil proceedings (as in criminal proceedings) if it was relevant to an issue raised in those proceedings; (2) That the matters that the court should take into consideration, when exercising its discretion to admit evidence of similar facts in civil proceedings, included the probative value of the evidence sought to be adduced, the extent to which its introduction would complicate and prolong the trial and whether its inclusion would be unfair and oppressive to the other party ..." His Honour then considered the application of those principles to the facts before him. In my view, the evidence sought tu be led here 1s not admissible under the similar facts doctrine. If, contrary to my conclusion, the evidence 1s legally admissible the reception of the evidence would tend very seriously to multiply the issues for determination and would prolong the trial without correspondingly being able to contribute greatly to the issue on which it 1s led. Whether or not other agents of the respondent made misrepresenrations as to whether the land was flood prone or not, on other occasions, to other purchasers, 18 not of such great cogency ir the examination of the issue whether, on this particular occasion, Mr Chester made that representation, as would call for an exercise of discretion to allow that evidence to be admitted. In the exercise of my discretion I would not allow the trial to be further complicated by the canvassing of those collateral issues. I will not admit the evidence.