2S Ss (LIMITED DISTRIBUTION) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG NO. 43 OF 1987 ) ) ) } GENERAL DIVISION ) ) ) EX TEMPORE JUDGMENT Between: PHILLIP RAYMOND BURTON and NOALA FRANCES BURTON (Applicants) And: CITICORP FINANCE PTY. LIMITED (FORMERLY KNOWN AS PERSON-TO-PERSON FINANCIAL SERVICES PTY. LTD. ) CITICORP AUSTRALIA LIMITED and CREDIT REFERENCE ASSOCIATION OF AUSTRALIA LIMITED (Respondents) Coram: Ryan J. Date: 16 April 1987 Place: Melbourne EX TEMPORE REASONS FOR JUDGMENT In this matter, by notice of motion dated 24 March 1987, the third respondent has sought an order pursuant to 0.20 r.20 of the Rules of this Court that the application be dismissed as against it. Alternatively, it seeks an order for such dismissal in the exercise of the Court's inherent jurisdiction. In the further alternative, it is sought that the applicants' statement of claim be struck out pursuant to tJ 0.11 r.16 in that it discloses no reasonable cause of action or it 1s otherwise an abuse of the process of the Court. The case pleaded against the third respondent is that in the course of its business as a credit reference agency, 1t published on specified dates to particular companies or firms, certain statements of and concerning the applicants which had been supplied to the third respondent by the first or second respondents. It was first argued for the first respondent in support of its notice of motion that the circumstances disclosed by the statement of claim made applicable the following observations in a joint judgment of Mason ACJ, Wilson, Deane and Dawson JJ in Yorke v. Lucas (1985) 158 CLR 661 at 666: "It should be observed at the outset that the facts as found by the trial judge raise the question whether the Lucas company itself was guilty of any contravention of s.52. It is, of course, established that contravention of that section does not require an intent to mislead or deceive and even though a corporation acts honestly and reasonably, it may nonetheless engage in conduct that 1s misleading or deceptive or is likely to mislead or deceive: Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Ltd. (1978) 140 CLR 216, at p.228; Parkdale Custom Built Furniture Pty. Ltd. v. Puxu Pty. Ltd. (1982) 149 CLR 191, at p.197. That does not, however, mean that a corporation which purports to dono more than Pass on information supplied by another must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing 1t om for what 1t 15 worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that 15 misleading or deceptive." Of necessity, in my view, the full circumstances of a case such as the present are not to be gleaned from the statement of claim and I am not persuaded that circumstances of the kind contemplated by their Honours in that passage necessarily attended the publication by the third respondent which is complained of in the statement of claim. Whether those circumstances did attend the publication is a matter to be determined on all the evidence after issue has been joined by an approriate defence. It was next put that, insofar as it relied on publications occurring before February 1984, the application under the Trade Practices Act 1974 ("the Act") against the third named respondent is barred by s.82(2) which provides that: "An action under sub-section (1) {to recover damages suffered by conduct in contravention of a provision of Part IV or V of the Act] may be commenced at any time within 3 years after the date on which the cause of action accrued." In my view that sub-section is not sufficiently different from traditionally framed statutory provisions for the limitation of actions to Warrant the view that it automatically precludes the bringing of an application without the need for a respondent to allege by way of defence that the action has become statute barred. I am reinforced in this conclusion by the following observations of Toohey J. in James ov. Australia and New Zealand Banking Group Ltd. (1986) 64 ALR 347, where at 396: "Although s.82(2) is expressed in terms that an action may be commenced within three years after the date on which the cause of action accrued, the general approach to such a provision in comparable legislation has been that 1t constitutes a defence. A respondent or defendant may, for whatever reason, choose not to plead a relevant limitation provision in which event it is not encumbent upon the court to consider the question for itself. Indeed, in the absence of such a defence, a court that did so would trespass beyond the issues failsed by the Pleadings. The position is in marked contrast to that where the jurisdiction of a court to deal with the claim before it is in question. Notwithstanding the failure of the respondent or defendant to raise the matter, the court must satisfy itself as to jurisdiction." In my respectful view that passage clearly makes' the distinction between a fact which 1s an essential pre-requisite to jurisdiction and a fact which may be pleaded in bar of a claim prima facie within jurisdiction. I also agree with the submissions made by Mr. Maxwell for the applicants that an essential element ina cause of action of this kind is damage as well as the contravention of the Act. The precise point at which damage was suffered so that a cause of action can be said to accrue is also a question of fact which cannot be answered merely by reference to the statement of claim itself. ut Reference was then made by Mr. Sharp who appeared for the third respondent to the provisions of s.65A of the Act which was inserted by Act No. 165 of 1984 and commenced Operation on 25 October 1984. Mr. Sharp conceded that the provision as so amended afforded the third respondent a Protection only in respect of publications occurring after the coming into operation of the amending Act. However, he argued that in respect of such matters the consequence was that the statement of claim failed to disclose a cause of action under the Act against the third respondent. In my view, s.65A constitutes an exception to the operation of the Act. It is not something to be negatived in advance by the pleader of a statement of claim invoking a cause of action under the Act. Section 65A itself, as Mr. Maxwell pointed out in the course of argument, is subject to a number of exceptions which I consider are properly to be raised by way of reply to a defence pleading the application of s.65A to a particular respondent. Reference was also made by Mr. Maxwell to a number of common law causes of action relied on by the applicants. The Pleading of those causes of action has not been attacked on the grounds afforded by 0.11 r.16 but in respect of which Mr. Sharp argued, as I understood him, that they fell, once it has been accepted that the cause of action which attracts primary jurisdiction to this court under the Act cannot be sustained. Since I have indicated that the first premise of that argument is mot one that can be made out, it is unnecessary to deal further with 1t. However, I indicate in passing that the reliance placed by Mr. Maxwell on the Passages from the judgment of Toohey J. in James v. Australia and New Zealand Bank Utd. (supra) immediately before that which I have just quoted appears to me to have some cogency in support of the conclusion that those causes of action, although arising in the pendent or accrued jurisdiction of this Court, may nevertheless be pursued if the Court in its discretion should decide to exercise the jurisdiction. It will be apparent from what I have said so far that I am not persuaded that this 18S an appropriate case for the exercise of the jurisdiction under 0.11 +£.16, or the inherent jurisdiction of the court to stay this application in limine. No attempt has been made, if one could be, to set up a substantial complex of facts demonstrating that the third respondent has a complete defence to the action, or the application so far as it has been pleaded against it. That is apparent from the form of the affidavit relied upon in support of the notice of motion. It occurs to me that a more appropriate course might be to identify, after pleadings have closed separate questions of fact or law which could be resolved between the applicant and the third respondent without occasioning the delay and expense which maght otherwise be incurred if that respondent were to remain fully involved in the litigation of all the issues between the applicant and the first and second respondents. In the circumstances I propose to refuse the motion. I will hear counsel now on the question of costs. I certify that this and the < preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Cyan OPS Shee oo Associate Dated: «. « -se7 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G39 of 1986 GENERAL DIVISION ) BETWEEN: CONSTABLE HOLDINGS PTY. LTD. Applicant AND: THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent CORRIGENDUM Amendment to the Reasons for Judgment of his Honour Mr. Justice Beaumont delivered 21 April 1986: Page 1 - line 6 - delete "distribution to shareholders" and insert "dissolution of a company". Associate to Beaumont J. 21 May 1987