CATCHWORODS TRADE PRACTICES - s.52 claim against natural person - reliance oan 5.75B - not enough to show servant of respondent within 5.752. LIMITATION OF ACTIONS ~- action for damages under general law - claim under s.87(1A) of Trade Practices Act. PRACTICE - striking out pleading. Trade Practices Act, $5.52, 53A, 75B, 87(1A) KEEN MAR CORPORATION PTY LTD LABRADOR PARK SHOPFING CENTRE PTY LTD (First Respondent? HERSFIELD DEVELOPMENTS CORPORATION PTY LTD (Second Respondent) JONES LANG WOOTTON (A FIRM) (Third Respondent) OLD G119 OF 1984 TREVOR McDOUGALL COOMBER, GREGORY DESMOND AETLY and CAMERON GREGORY GODDEN v. LABRADOR PARK SHOPPING CENTRE PLY LTD (Ficst Respondent} HERSFIELD DEVELOPMENTS CORPORATION PTY LTD (Second Fespondent!} JONES LANG WOOTTON (A FIRM) (Third Respondent) LD G144 OF 1984 COLIN JAMES PALLESON and BETTY RUTH PALLESON Fe LAHRADOR PARK SHOPPING CENTRE PTY LTD (First Respondent? HERSFIELD DEVELOPMENTS CORPORATION PTY LTD (Second Respsndent) JONES LANG WOOTTON (A FIRM) (Third Respondent) QLD G145 OF 1984 PINCUS J. BRISBANE 28 JUNE 1985 IN THE FEDEPLL COURT oF AUSTRALIA ) OUBENSLAND DISTRICT REGTATRY ) GENERAL DIVISION ; O"LD G1id OF ised BETWEEN : KEEN MAR CORPOPATION PTY Ltn Applicant AND: LABFADOR PAPK SHOPPING CENTPE PTY LTS First Pespondent HEPSPIELD DEVELOPMENTS COPPORATION ETY LTD ote JONES LSNG WOOTTON 'A PU RMs Tnird Pespondent QLD Gla4 OF 1484 BETVIEEN : TPEVOP McDOUGALL COOMBER, GPEGORY DESMOND KRILY and CAMERON SREGOPY GODDEN Al paicants LAERADOR PARK SHOPPING CENTPE PTY nro 1g R HETSPIELD DEVELOPMENTS COPPOFATION PTY i7n Second ¢ JONES LANG WOOTTON (A FIRM' Third Fespendent QLD G145 OF 1984 BETWEEN : COLIN JAMES PALLESON and BETTY puTy PALLESGU Applicants AND: LARFADOR PARK SHOPPING CENT2E PrY LTD Pirst Responaert HERSFIELD DEVELOPMENTS CORPORATION PTY LT Second Fespondent JONES LANG WOOTTON (A FIRM) Third Reepsndent PINCUS d. 2P JUTE 1985 REASONS FOP JUDGMENT In each oz these matters the third respondent speplies by notice of motion that the proceedings against ic le stayed or dismissed an the xsround that no reasonacle® cause or actisn 1s D tr rt a 1D 'S ssoO i) i] Q a = " te ia p disclosed by the statement of claim, tha fravolous se vexatious and thac the proceedings are an abuse oF process. Alternatively an application 15 made thac the statement of claim be struck cut on similar grounds. The statements of claim in the principal applications are rather similar to one another and it is convenient ro begin with the first aun time, No. G119 of 1984 in which heen Mar Corporation Pty Lta is the applicant. The applicant Keen Mar Corporation rey Ltd alleges by its pleading that the tirst and second respondents are trading corporations. No such allegation is made agains" the third respondent whose name 18 given as "Jones Lang MNootton ta firm)". Counsel for the third respondent explained that one of the points sought to be taken rested upon the unincorporate etatus af the ist third respondent but, in response to enquirie by me, said that the firm name 21s registered "as being carried on by some individuals: that is in Queensland". He 2lf£o0 said that "Jones Lang Woctcon 18 a national firm - is a name which is emploved natlonaliy by <aifferent people". As I unaerstcod ccuntel's explanation, one firm carri1es on business naclonally fanclwiing, presumably, in the State of Queensland?) and the other carries an 3. business only in the State of Queensland; the forner, but rot the latter, includes a corporation amongst its members. Tt as undesirable that time and money tbe wasted on deciding legal foints which, because of lack of definitran of tne Tacts, may turn aut to be academic. If there ate in fact two Tirms with the same name, one national and the other operating only in Queensland, the first thing ordinarily would be to the ct clarify the adentity of the third respondent, les Praceéeaings dissolve in confusion. Nevertheless, 1t appears to me to be a practical course to proceed to consider «whether the applicant can nave a cause of action against the third respondent, on the hypothesis that 2 16 tne Queensland firm which 18 sued and that it neither is5 nor incluces a corporation. IT will summarige the main allegations. he amended statement of claim in G119 of 1984 says that the first respondent, which I shall call "Lab.ador' owned land on which 1t and the second respondent ("Hersfield") built a shopping centre. The allegation is that the third respondent (""denes") was the agent of Labrador and Hersfieli an relatinn to the leasing of premises within the shopping centre. The aprlicant alleges that 1t took a six-year lease of a shor ana that in the course of negotiations leading up to that Jones. on behalf of Labrador and Hersfield, sent a floor plan cf the proocsed shopping centre and that it relied on vthe flcor plan in executing the lease. The applicant also says that 1f got from Jones a brochure prepared by Hersfield, making representations about Ehe + & shopping centre, 1ts access, exposure and so forth. Paragraph 16 4. of the statement of claim says that all the respondents, in relation to the brochure, engaged in misleading or deceptive conduct, in contravention of ss.52 and 53A of the Trade Practices Act. There 1s a distinct set of allegations mad= cencernirae what 15 calied a Certificate of Classification made under by-laws pursuant to the Building Act 1975-1981. The applicant alleges that because there vas no relevant Certificate of Classification, 1t was unlawful toa occupy the premises. Amongst other allegations ahout the Certificate of Classification, it 1s set up that Jones on behalf of Labrador and Hersfield sent circulars advising the applicant of the opening date and that 1t was "imperative that all tenants were fully operaticnal by that date", The appiicant says the respondents owed a duty to the applicant to inform 16 that its occupation would be illegal and that the failure to do so was a breach of 55.52 and 53A of the + Trade Practices ac Alternatively, the applicant says that f tt there was a duty disclose the illegalit, on 17 Becemrer 1981 when Jones wrote on benalf of the otner respondents a certain letter from which the applicant inferred that its occupation would be lawful. Next, 16 ais said that a failure on the part of ali the respondents to tell the applicant about a letter written by the local authority concerning the Certificate of Classification constituted misleading or daeceptive ccnduct. There 1s an allegation that the respondents owed a duty to the applicant to inform 1t of the contents of that letcer. Se eb wet om It is not as clear as it might be, whether there 1¢ any claim against the third respondent other than under the Trade Practices Act. The application claims against each of the respondents damages for negligence, but there are not allegations in the pleading to support that and it seems right to assume, as did counsel for the applicant Keen Mar, that the case 1s brought under the Trade Practices Act. Counsel for the applicants relied on s5.75B cf the Trade Practices Act, saying that Jones is liable under paradraph (ic) as a party to the contravention alleged. Reference was made ro Yorke v. Lucat (1983) 49 A.L.R. 672 in which the Full Court considered the operation of s.75Blc). At p.662 the Court said:- "The words 'party to the contravention' necessarily connots, in our view, that a person assents or concurs in the conduct which constitutes the contravention. He must therefore know or be atare of the essential facts or matters which must be proved to establish the contravention ... In our opinion, the words 'party to the ccentraventicn' refer to a voerson who participates in, or assents bo the contravention in question." More recently, Neaves J. cansidered the operation of s.75B in Maisey v. Mudgeeraba Village Estates Pty Ltd (1985) A.T.P.R. 40-569. His Honour had there to consider whether a director of an incorporated real estate agency was liable under the section and although there was some evidence (referred to at p.46615) that she was cannected with the matters complained of, the conclusion was that she was not liable, being not aware of the representations made. 6. In the first statement of claim, that af Keen Mar Corporation Pty Ltd, wherever Jones 1S mentioned, the firm is described simply as "the third respondent' and no allegation 15 made that it acted by or through any named person. Presumably the pleading 15 so drawn because the pertinert alledvations aqainst Jones celate to the firm's having communicated with the applicant in writing or having failed to carry out an alleged aduty to speak. Ordinarily, there can be no objection to pleading in that way, but a cause of action under s.75Rfc\, as interpreted in York® v. Lucas (supra), has as 1ts toundatlon an assertion that an identified person or persons has been involved in a contravention. That is not specifically allegea, nar reasonably to be deduced, from the statement of claim. IT retuen to this I pause to dispose of a separate argument, viz. that some of the causes of action are barred. If 1s not necessary for the purposes of this judgment to explain the detsils of the facts, so Far as time limitation 18 concerned. It 18 enough to mention that, in some respects, the events comolained of accurred just outside tre three-year limit menticned in 3.82(2) of the Trade Practices &2t. It was asgqued that for the purposes of that provision time van from the conduct complained of. Under the general law, that 15 not so, with respect to actions for damages for negligence: Pairelii Generali Cable Works Ltd. v. Oscar Faber and Partnecs 'a firm) (1983) 2 A.C. 1. The House of Lords there reaffirmed the view that a cause of action in damages for negligence accrues when the damage comes into existence. Secondly, as vas verv fairly wointed out by Mr Jackson on benalf 7. of Jones, the Full Court has decided in Fenech v. Sterling (1984) A.T.P.R. 40-496 that the Court's powers under s.87(1A) of the Trade Practices Act, which may well be availed of in such a case as this, are not subject to any explicit time limit. Thirdly, it 1s rot the practice to strike out a statement of ciaim on the ground that the claim is statute-barred. Mr Jackson made other criticisms of the pleadings. Fer example, he pointed out that although the applications mention damages for negligence and breach of contract there 1 wun the Pleadings no clear allagation of negligence and no allegation of breach of contract, against Jones. Again, he urged the view that the claims made in respect of the Certificate of Classification seem to be implausible, at least insofar as it is said that damage flowed. None of these supplementary points. as they may fairly be called, need be dealt with, for I am satisfied that none of them are of a kind which could form the whole or part Wf the around for striking out the proceedings or the pleadings. l return to the s$.75B problen. In the statements of claim in the second and third cases, brought by T.M. Coomber and Others (Gl44 of 1984) and C.J. and B.R. Palleson (G145 of 1984) some of the allegations against Jones set out that things were done by named servants or agents. For example, in Gl44 of 1984 one Wakeham 13 alleged to have made representations on behalf of Jones, by sending a letter. These named servants or agents are not parties. The contention has to be that Jones is liable because, for example, Wakeham made a representation. But, in the absence of an allegation that Jones 1s incorporated, that cannot 8. succeed. If it is sought to place the cases on the footing that Jones is liable under s.75B, it 1s my view, on the authority of Yorke v. Lucas 'supra), that the representations must be sheeted home to the partners in Jones, themselves; 1t 15 not enough to succeed under s.75B, to show that a party to the contravention acted for the tnird respondent Jones as agent or servant, the members of the third respondent not being themselves said to have been involved. Tt Follows that in none of the three cases is there a pleading properiy raising a case against Jones under s.75B. I might have, in the exercise of my discretion, nevertheless deciined to accede to Jones' application, on the basis that iunterlocutory skirmishes about legal points, in advance of ascertainment of the facts, are to be discouraged. I have, however, decided that it is unfair to Jones, and cannot help the applicants, to let the matters continue in their oresent form, In coming to my conclusion, I am influenced by thse fact that the applicants' chances of proving a case under the Trade Practices Act against Jones appear to be slim. There remains the complication of the ambiguity of the name "Jones Lana Wootton", referred to above. Tf, as Me Jackson's instructions suggest, there is a national firm of that name including a corporation, it may be that the applicant would desire to rve-plead its case directly, so to speak, under 55.52 or 53A, to fix the corporation with liability. Ido not say, of course, that that can be done; I merely wish toa give the applicants time tc take stock of their position. They may wish, on, 9. having appropriate instructions, to re-plead under 5.75B. To enable such possibilities to be considered, the order will be one dismissing the applications as against the third respondent unless within 14 days the applicant applies to amend the pleading, as against the third respondent. In summary, the legal view on which I have decided the case is that where suit 18 brought against & natural person, in reliance on s.75EB of the Trade Practices Act, 1t is not enough merely to show that the respondent was a principal on whose behalf acts were done falling within the section: the principal himself must be involved in the contravention. i rertify Wal this eadine * preceding pages areatruecer cf fs! ocr. for sucts vont hoicet cf tins bicacar Mr, Jusuce Puicus a aero nd - an x 3/6/ Sb Associate Daied