CATCHWORDS Pleading - application to strike out Statement of Claim - allegation that no reasonable cause of action disclosed therein - limitation of actions. Jurisdiction - pendent jurisdiction of the Federal Court - discretionary nature - jurisdiction once attracted persists to resolve a pendent claim if primary claim fails for temporal limitation. Trade Practices Act - Observations as to the proper approach to construction of s.82 of the Trade Practices Act with respect to causation - observations as to the appropriateness of resort to general law analogies as an aid to construction of the causal requirement of s.82. Acts Interpretation Act (1901) ss 15AA, 15AB Trade Practices Act 1974 68 52, 53 and 82. Nella v Kingia (1986) 7 IPR 55 applied Go Owners Land Development Pty Ltd v Queensland Estates ry Ltd SELED i7 ALJR a followed Felton v Mulligan (1971) 124 CLR 367 referred to. Bargal Pty Ltd v Force (1983) 154 CLR 261 referred to. Rv Carter; Ex parte Kisch (1934) 52 CLR 221 referred to. R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 Teferre ° Philip Morris Inc. v Adam P Brown Male Fashions Pty Ltd TISELT 1468 CLR 457 followed. Dorotea Pty Ltd v Vancleve Pty Ltd (Full Court 15 April I987 unreported) followed. James v ANZ Banking Group Ltd (1986) 64 ALR 347 applied. Fencott v Muller SEED cy: CLR 570 referred to. McMahon v Smith (1986) 69 ALR 527 referred to. Arcadi v CML Assurance Society Ltd [1964] ATPR 40 473 reterred to. Forster v Outred and Co [1982] 2 ALL ER 753 referred to. Brown v Jam Factory Pty Ltd(1980)53 FLR 340 referred to. National insurance Co. of New Zealand Ltd v Espagne 961 CLR referred to. guul 2. Alexander v Cambridge Credit Corporation Ltd v NSW Court of Appeal (25 June 1387 Gnreported} referred to. The Commonwealth v Butler (1958)102 CLR 465 referred to. The Commonwealth v Whillock(1983)70 FLR 292 referred to. National and General Insurance Co Ltd v South British Insurance co Ltd (1982) 145 CLR 327 referred to. K and S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd T1985) 59 ALIR 55 feferred to. Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 referred to. Milner v Delita Pty Ltd (1985) 61 ALR 557 referred to. Fenech v tlin ) 51 ALR 205 considered. Gates v City Mutual Life Assurance Society Ltd (1986) 60 ALIR 239 considered. Brickhill v Cooke [1984] 3 NSWLR 396 referred to. Morris v Morris [1982] 1 NSWLR 61 referred to. Norris v Perpetual Executors, Trustees and Agency Co (WA) Ltd (1942) vt WALR 21 referred to. Raffaele v Raffaele (1962) WAR 29 referred to. Jackeen v Crosby (No.2) (1979) 21 SASR 281 referred to. Thom v Sinclair [1917] Ac 127 followed. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd AC referred to. Gorris v Scott (1874) LR 9 Ex 125 referred to. Staple yv Gypsum Mines Ltd [1953] AC 663 Esso Petroleum Co Ltd v Mardon(1976)QB 801 referred to. Ware v Johnson T1984] 2 NZ~LR 518 referred to. McKenzie v McDonald [1927] VLR 134 referred to. United States Surgical Corp. v Hospital products Teeesnational Pty Lea T1982] 2 NSWLR 766 F arrington v Rowe McBride and Partners ([{1985] 1NZLR 83) referred to. Re Dawson (dec'd) [1966] 2 NSWR 211 Bartlett v Barclays Bank Trust Co [No 2] 1980 Ch. 515 referred to. Guerin v The Queen (1985) 13 DLR (4th) 321 referred to. Mid Northern Fertilizers Ltd v Connell (New Zealand High Court, 18 September 1986 unrep. Thorp J) referred to. Rhone poulene Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 68 ALR i referred to. New South Wales G.442 of 1984 ELNA__AUSTRALIA PTY LTD v INTERNATIONAL COMPUTERS (AUSTRALIA) PTY LTD. Gummow J. Sydney 16 July 1987 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.442 of 1984 ) ) GENERAL DIVISION BETWEEN: ELNA AUSTRALIA PTY.LTD. Applicant AND: INTERNATIONAL COMPUTERS (AUSTRALIA) PTY.LTD. Respondent MINUTES OF ORDER JUDGE MAKING ORDER: GUMMOW J. DATE OF ORDER: 16 July 1987 WHERE MADE: Sydney THE COURT ORDERS THAT: 1. The notice of motion filed by the Respondent on 16 June 1987 seeking to strike out the Applicant's amended Statement of Claim be dismissed. 2. The Respondent pay the Applicant's costs on that motion. Leave is granted to file a further amended Statement of Claim in accordance with these reasons. Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.442 of 1984 GENERAL DIVISION BETWEEN: ELNA AUSTRALIA PTY.LTD. Applicant AND: INTERNATIONAL COMPUTERS (AUSTRALIA) PTY.LTD. Respondent Coram: GUMMOW J. Place: Sydney Date: 16 July 1987 REASONS FOR JUDGMENT These proceedings were instituted by Application filed on 18 December 1984. The Application was accompanied by a Statement of Claim. On 6 May 1985, the applicant, pursuant to leave granted by the Court on 15 April 1985, filed an amended Statement of Claim. The applicant claims damages primarily under s.82 of the Trade Practices Act 1974 ("the TP Act") and also, in the accrued jurisdiction, claims damages for breach of contract. A Defence was filed on 8 July 1985. Preparation of the matter for hearing proceeded, with discovery of documents and administration of interrogatories. The matter was set down for hearing to commence on 22 June 1987. However, in April 1987 the respondent indicated to the Court that it wished to make a strike out application in respect of the amended Statement of Claim. On 27 April 1987, I directed that the hearing date be vacated. The motion was filed on 16 June 1987 and heard on 22 June 1987. By its motion the respondent seeks orders that the amended Statement of Claim be struck out and the proceedings be dismissed. It relies upon Order 20 Rule 2(1)(a) of the Rules of Court, which provides for dismissal of proceedings on the ground that no reasonable cause of action is disclosed. Any reliance upon Order 11 Rule 16 was disclaimed. The Pleadings The complaints made by the applicant in the amended Statement of Claim, to put the matter very broadly, arise out of dealings between the parties concerning particular computer equipment and computer programs identified as "the System 10/120". The amended Statement of Claim includes a global allegation of loss or damage (paragraph 21). The antecedent allegations in the amended Statement of Claim were said by the respondent to fall into several groups. Reference was made first to paragraphs 5-15 and 20. These may be described as the first Trade Practices claim and read as follows:- On 24.9.1980 the Respondent submitted to the Applicant a letter bearing that date together with background information relating to the Respondent and technical information relating to the System 10/120 and the said letter and information in due course were referred to by the parties as "the proposal". In or about the month of September 1980 the Applicant made known to the Respondent that it was one of a group of associated companies carrying on business in Scandanavia, the United Kingdom, the United States of America, Switzerland, South Africa and Austria and that the Applicant wished to use the System 10/120 for the purpose of developing programs in Australia for use by other companies in the said Group which companies would also buy the System 10/120 for use with such programs and would pay the Respondent for the development of such programs. PARTICULARS The facts referred to above were made known at a meeting at the Kent Street premises of the Applicant by Graham Ceurvorst representing the Applicant to Marty Falion vepresenting the Respondent. On the occasion referred to in paragraph 6 hereof the Respondent by its servant, Marty Fallon, represented that the System 10/120 was suitable for the purpose so described. On 6.11.1980 the Respondent represented to the Applicant that the equipment forming part of the System 10/120 would remain available for purchase in Australia and the other countries aforesaid for a period of not less than the ensuing three (3) years. PARTICULARS The representation was implied as a matter of fact from written and oral statements. The writer (sic) statements appear in the Proposal Section 1 p.5 section 3 p.2 where the equipment is described variously as "the latest product" and "state of the 10. li. 12. 4. art". The oral representation was made on 6.11.1980 at the Respondent's North Sydney premises by Marty Fallon representing the Respondent to John Peake representing the Applicant that the equipment was based on the Singer computer and was not likely to be superseded. Each of the representations referred to in paragraphs 7 and 68 was made by the Respondent in trade or alternatively in commerce. Each of the representations referred to in paragraphs 7 and 8 was made by the Respondent in connection with the possible supply of the System 10/120. In making each of the representations referred to in paragraphs 7 and 8 the Respondent engaged in conduct that was deceptive or alternatively likely to deceive in that:- (1) The Respondent led the applicant to believe that the Respondent did not at the time when the said statement and representation were made then intend to cease to offer for sale the System 10/120 in 1981. (2) The Respondent led the Applicant to believe that the System 10/120 would be and remain available for purchase in Australia and the other countries aforesaid for the ensuing three (3) years. Alternatively to paragraph 11 in making the representations referred to in paragraphs 7 and 8 the Respondent engaged in conduct that was misleading or alternatively likely to mislead in that:~ (1) As a result of the representations referred to in paragraphs 7 and 8 the Applicant was led to believe that the Respondent did not then intend to cease te offer for sale the System 10/120 in 1981. (2) As a result of the statements referred to in paragraphs 7 and 8 the Applicant 5. was led to believe that the System 10/120 would be and remain available for purchase in Australia and the other countries aforesaid for the ensuing three (3) years. 13. aAt the times of making the said representations the Respondent intended to cease to offer the System 10/120 for sale in 1981. 14. At the time of making the said representations the Respondent knew that the System 10/120 would not be and remain available for purchase in the ensuing three (3) years. 15. By the said representations the Respondent represented that the System 10/120 had benefits which it did not have namely the suitability of the programs after the development of such programs in Australia by the Applicant for use by companies in the Group referred to in paragraph 6 hereof. 20. As and from the commencement of 1981 the Respondent ceased to offer for sale the System 10/120 and it has not been available for purchase in Austrlia or the other countries aforesaid thereafter. Paragraphs 11 and i2 appear to raise s.52 of the TPA Act and paragraph 15, 5.53. The second claim was described as the common law or contract claim. It appears, in paragraphs 16-18, in the following terms:- 16. By agreement in writing dated 23.12.1980 as varied by letter dated 21.1.1981 from the Respondent to the Applicant, the Respondent agreed to supply to the Applicant programs forming part of the System 10/120 and fully described in a letter from the Applicant to the Respondent dated 17/12/1980. PARTICULARS The Contract was comprised in the following documents:- (1) Those parts of the proposal referred to in paragraph 5 hereof as are referred to in the Scott Schedule in the column headed "ICL Proposal" Orange Book "Ref" . (2) Letter from Applicant to the Respondent dated 17/12/80 including Program Product Contract No. 6476P and Schedule or Reports with pages numbered 1-49. (3) Letter from the Respondent to the Applicant dated 21/1/1981. 17. %It was an express term (namely Clause 5(b) of the said Agreement) that the Respondent would demonstrate to the Applicant that the programs would be free of defects and producing the information required by the said proposal and the said Schedule of Reports. 18. In breach of the said agreement' the Respondent has not supplied all of the said programs and has not demonstrated to the Applicant that the programs are free from defects and has not demonstrated that the said programs are producing the information referred to in the said Proposal and the said Schedule of Reports and as at the date of commencement of these proceedings the said programs remain incomplete and substantially defective. PARTICULARS Scott Schedule herewith. The third claim ("the second Trade Practices claim") is contained in paragraph 19. The meaning of this portion of the pleading was the subject of dispute between counsel, and, the applicant indicated a willingness to amend it to make plain the intended meaning. Paragraph 19 provides:- 19. Alternatively to paragraphs 16-18 the proposal contained a statement in the form of Annexure "A" hereto. If, which is not admitted, the said statement formed part of the contract between the Applicant and the Respondent then by entry into the Program Product Contract No. 6476P the Respondent:- (1) in trade or commerce engaged in conductthat was misleading or deceptive or likely to mislead and deceive; (2) in trade or commerce in connection with the supply of goods or services:- (a) falsely represented that the goods were of a particular standard or quality; (b) represented that the goods had performance characteristics uses or benefits which they did not have; (c) made a false and misleading statement concerning the existence or effort (sic) of claim 5(b) of the said agreement. PARTICULARS (1) The Respondent duly executed the formal Program Product Contract No. 6476P which included in The Schedule Part B the words:- "Programs will be free from "bugs" and producing required information correctly". which words were apt to give rise to the term pleaded in paragraph 17 hereof. (2) The Respondent delivered the programs and purported to (sic) free "bugs" or defects therefrom (including the defects particularised in the Scott Schedule and numerous others). (3) If which is not admitted the statement set forth in Annexure "A" hereto which was included in the preliminary proposal formed part of the contract between the parties and had the effect of relieving the Respondent from breach of the term inserted in The Schedule Part B then the insertion thereof misled and deceived the Applicant as alleged. The Annexure "A" referred to in paragraph 19 included these sentences: The capabilities of the hardware and software are based on information currently available and on information obtained from the customer. These capabilities represent ICL's genuine expectations but cannot, of course, be guaranteed due to factors outside ICL's control. I was told that the design of the pleader in drawing paragraph 19 was to fix upon the apparent conflict between the statement in Annexure "A" and that in The Schedule to the Program Product Contract, and allege that the respondent contravened s.52 of the TP Act by proffering Annexure A as part of the proposed contract between the parties without drawing to the attention of the applicant the apparent conflict, as to the measure of the respondent's contractual obligations, between Annexure A and the Schedule. The applicant submitted that the "initial consequence" was its entry into the contract with the respondent. This was on 23 December 1980 (with a variation on 21 January 1981), more than three years before the institution of these proceedings. The applicant further submits that "loss or damage" within the 9. meaning of s.82 of the TP Act was suffered subsequently, and, in particular, when Annexure A was put forward by the respondent on 8 July 1985 in paragraphs 6 and 7 of its defence to the contract claim. I accept that, as it presently stands, paragraph 19 is far from plain in its meaning; in any event, the pleader appears to have confused the true function of particulars (a self explanatory expression) by including within them elements of the cause of action not contained in the pleading itself. However, I accept the submission of the applicant that when the Court is asked to take the summary steps of staying or dismissing an action it should have regard to the manner in which the claims made could be framed in pursuance of any amendment the Court believes it ought to allow: Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519 at 521. I would accede to the applicant's application to amend paragraph 19 and will deal with the respondent's present application in respect of the second Trade Practices claim on the footing that the claim is contained in a paragraph amended to have the substantive content I have described. 10. The "Limitation" Point In respect of each of the Trade Practices claims, the respondent contends that the three year "limitation" contained in s.82 of the TP Act presents a fatal obstacle to the applicant, with the result that these claims should be dismissed at the present stage of the case. It is then submitted that, even if, as is also disputed, the contract claim were otherwise properly within the accrued jurisdiction of the Court, that claim falls beyond jurisdiction after the Trade Practices claims fail. The applicant complains that in respect of each of these claims, the three year Limitation period expressed in s.82 (2) of the TP Act is applicable. The result is said to be that no reasonable cause of action is disclosed within the meaning of Order 20 Rule 2(1)(a) of the Rules of Court. Section 82 provides as follows: 82. (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. (2) An action under sub-section (1) may be commenced at any time within 3 years after the date on which the cause of action accrued. (3) Sub-section (1) does not apply in relation to conduct done in contravention of section 52A, ll. The respondent pleaded s.82(2) as a defence. In doing so it followed the trend of authority that although s.82(2) is expressed in terms perhaps indicative of a condition precedent to jurisdiction, or at least of an element in the cause of action, it is nevertheless to be treated as if it constituted a defence: Arcadi v CML Assurance Society Ltd [1984] ATPR 40-473, James v ANZ Banking Group Ltd (1986) 64 ALR 347 at 396-7. The respondent formally submitted in the course of argument that the amended Statement of Claim was defective for want of assertions that the Trade Practices claims were brought within time. I indicated that I regarded myself, particularly on an application of the character of the present one, as bound by the weight of authority for the contrary view. I should add that insofar as the applicant's claims to relief may be read as founded upon s.87 (1A) of the TP Act, in addition to s.82, it was accepted by the parties in the end that, for the the purposes of the present application, nothing of importance turned upon this. The reason was that as a consequence of amendments including the insertion of s.87 (1CA) by Act No. 168 of 1986, essentially the same limitation period now applies to s.87(1A) as to s.82. 12. The Contract Claim Federal jurisdiction may _ be attracted upon institution of proceedings or, as Felton v Mulligan (1971) 124 CLR 367 at 373 illustrates, at a later stage in the proceedings. The present case is in the first class. Upon the institution of the present proceedings this Court was seized of jurisdiction to deal with, and, indeed, was the only court with jurisdiction to deal with, the whole of the matter, this being the controversy between the parties: Bargal Pty Ltd v Force (1983) 154 CLR 261 at 298. An issue is raised on the present motion as to whether the contract claim is truly part of that controversy. I will return to this later in these reasons. Once federal jurisdiction is attracted it is not lost because the claim or assertion which attracted it has not or cannot be substantiated, or has been displaced by some countervailing claim or assertion: Rv Carter; Ex parte Kisch (1934) 52 CLR 221 at 224, R v Bevan, Ex parte Elias and Gordon (1942) 66 CLR 452 at 466. The accrued jurisdiction in respect of a claim, of the character the present contract claim is said by the applicant to have, is itself federal jurisdiction; there is but one "matter" in the constitutional sense, and, once attracted, federal jurisdiction persists to enable the Court to resolve the matter: Philip Morris Inc v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 474. This is so, even if the defendant pleads a limitation point which, if made 13. good, may defeat the claim which initially attracted federal jurisdiction: Dorotea Pty Ltd v vancleve Pty Ltd (Full Court, 15 April 1987, unrep.), James v ANZ Banking Group Limited (1986) 64 ALR 347 at 396, Nella v Kingia (1986) 7 IPR 55 at 58. Further, as has been said by the High Court and this Court on numerous occasions, the exercise of jurisdiction in respect of accrued or pendent claims is discretionary; the discretion is to be exercised in accordance with the guidance provided in Bargal Pty Ltd v Force (1983) 154 CLR 261. The respondent submitted that the contract claim was not correctly characterised as a pendent or accrued claim within the meaning of the authorities. However, at the heart of all three claims are alleged deficiencies and shortcomings of the respondent arising from the dealings between the parties prior to the making of the contract pleaded, in the making and performance of that contract and in the relationship flowing from that contract. As a matter of impression and practical judgment (Fencott v Muller (1983) 152 CLR 570 at 608) the claims are within the scope of the one controversy and thus within the ambit of the one matter in the technical sense of that term. See, generally, McMahon v Smith (1986) 69 ALR 527 at 531-532. Even if, as I am not, I were minded to strike out the two Trade Practices claims, that would, as I have indicated, not remove or vacate the Court's jurisdiction in respect of the contract clain. 14. As a matter of discretion, jurisdiction in respect of the contract claim should be exercised by this Court. The respondent's submissions on this point were put essentially on the footing that the Trade Practices claims would be struck out, so the issue, as appears from what follows, does not arise. However, I should for completeness express my view. This is that had it been necessary to decide the point, the contract claim should have been kept in this Court even if the Trade Practices claims did not proceed. The contract alleged by the applicant was made more than six years ago. The respondent offered no undertaking not to raise a limitation defence to proceedings that might hereafter be instituted ina State Court. The respondent pointed to its Defence filed in this Court on 8 July 1985; this gave notice of the respondent's assertion that both Trade Practices claims were statute barred by virtue of the running of the three year period prescribed by s.82 of the TP Act. That circumstance, it was said, should have alerted the applicant to the ultimate failure of the Trade Practices claims and thus to the peril in which the contract claim was placed in this Court. In my view it is not satisfactory to say, as the respondent appeared to suggest, that the applicant should have instituted proceedings in a State Court on the contract claim after 8 July 1985 and still within time, and left those proceedings alive but cataleptic, pending developments in this Court. 15. The First Trade Practices Claim In respect of the first Trade Practices claim, the representations relied on allegedly were made in the latter part of 1980. The contract was said to have been entered into on 23 December 1980 (and varied 21 January 1981). The respondent is alleged to have ceased "as and from the commencement of 1981" to offer for sale what is described as the System 10/120. Reference at the hearing of the application was made to the respondent's answers to the applicant's interrogatory 44. The respondent there swears that the date of the last sale by it in Australia of a New System 10/120 computer was 25 June 1982. Such evidence is receivable on this application: Order 20 Rule 2(2). The proceedings were as I have said, commenced on 18 December 1984. This would suggest that the applicant would, at the trial, have solid ground from which to repel the respondent's attack with its limitation point. The applicant further submits that even if the date of cessation of sale of the System 10/120 remains at the commencement of 1981, it suffered loss or damage as described in paragraph 21 of the amended Statement of Claim at a time or times within the limitation period. This presents issues as to the correct construction of s.82(2), to which I will return later in these reasons. But I should point now to the factual disputes to which this submission gives rise and to the unsuitability of this application as a means of resolving them. 16. The Second Trade Practices Claim In respect of the second Trade Practices claim, I have already dealt with the proposed amendment and now proceed as I there indicated. The respondent submits that the loss or damage in question was suffered when the contract was entered into and not later, when for example, the defence was pleaded. The applicant's submission is that the loss or damage it suffered, within the meaning of s.82, was sustained when the respondent raised the defence against it in 1985, and that it is not to the point to say that this loss or damage would not have been sustained but for the entry into the contract in 1980. It is sufficient for me to say that this submission appears to have substance and to be far from the frivolous and plainly erroneous. The respondent relied upon the decision of the English Court of Appeal in Forster v Outred and Co [1982] 2 All ER 753. The plaintiff's claim in that case was against her solicitors; it was treated as a claim in tort, for negligence, "not simply for damages for breach of contract": (1982) 2 All ER 753 at 759. It was held that the cause of action was complete and that the plaintiff suffered actual damage for the purposes of the tort of negligence when she entered into a certain mortgage; the completion of the cause 17. of action was not delayed until the financial consequences of entry into the mortgage were played out. I am far from satisfied that in giving effect to the terms of s.82(2) of the TP Act resort may sufficiently or even safely be had to examples of the impact of other statutes in other jurisdictions upon common law causes of action. The prime concern must always be to construe the present statute, with particular attention to the interrelation between 58.82 and the provision in Part IV or Part V of which there has been a contravention: Arcadi v CML Assurance Society Ltd [1984} ATPR 40-473, at 45,453. The Construction of Section 82 The limitation period is fixed in s.82(2) by the date on which the cause of action accrued. That directs attention to the terms of s.82(1). It is the suffering of loss or damage which translates into a cause of action what otherwise would be no more than a contravention of the statute: Brown v Jam Factory Pty Ltd (1980) 53 FLR 340 at 348-351. The "loss or damage" is the gist of the action. But that expression does more than identify an integer in the cause of action. By describing the subject matter of recovery in that action as "the amount of the loss or damage", the legislature has marked out the measure of damages. Wrapped up within s.82 are thus concepts the common law would describe by the terms "causation" and "remoteness" and "measure of damages". 18. It is to the first of these, "causation", that s.82(2) directs attention. It does so by fixing the limitation period by reference to the date on which the cause of action accrued and so to the suffering of the loss or damage "by" conduct contravening the statute. The use of the preposition "by" indicates the necessity for some sufficient cause or reason linking the conduct with the recoverable loss or damage: Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 at 350-351. The question, to adopt the language of Lord Haldane in Thom v Sinclair [1917] AC 127 at 135, really turns on the nature or quality of the causation which is required by the use of the word "by". In logic, the cause of any state of being may be not less than "the sum of the entire conditions", but the courts both in expounding the common law and in construing statutes which present issues of causation, have selected some one or more out of what is an infinite number of conditions to be treated as the cause: Thom v Sinclair per Lord Haldane (supra), The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 591-596 per Windeyer J. And, as those learned judges also explained, the cause or causes so selected vary with the purpose at hand. In making that selection the law is moved by considerations of policy, not simply of logic (Alexander v Cambridge Credit Corporation Ltd, NSW Ct.of Appeal, 25/6/87, unrep., page 27, per McHugh JA). 19. In defining, construing and applying the common law principles in this field, particularly in negligence and in contract, it is to be remembered that what are often classed as rules are such only prima facie, and may be displaced or modified to meet the particular case: Wenham v Ella (1972) 127 CLR 454 at 466. Where the selection to which I have referred concerns statutory rights and obligations it would be an error to translate automatically to the particular statute what appeared the closest analogue from the common law "rules" as to causation. It is rather a question of statutory construction: The Commonwealth v Butler (1958) 102 CLR 465 at 478-479. The Commonwealth v Whillock (1983) 70 FLR 292 at 297, 311-315; National and General Insurance Co Ltd v South British Insurance Co Ltd (1982) 149 CLR 327 at 336. That process of statutory construction calls for examination of the terms of the statute in their context, using "context" to embrace the other provisions of the statute, the pre-existing state of the law, other statutes in pari materia, and the mischief the Court can discern as that the statute was intended to remedy: K_and S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd (1985) 59 ALJR 658 at 660-661, Kammins Ballrooms Co Ltd v Zenith Investments (Torquay)Ltd [1971] ac 850 at 880, Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 374-5, 387-8. The process I have described is now supplemented by the Acts Interpretation Act 1901, s.15AA,15AB. See also, as to s.52 of the TP Act, Yorke v Lucas (1985) 158 CLR 661 at 668. 20. There is no alarming novelty in this. In Thom v Sinclair (supta), Lord Haldane looked to the "governing purpose" ([{1917] AG at 136) of the Workmen's Compensation Act 1906 (UK) in construing the phrase "arising out of", and in selecting those circumstances which were to determine whether an event had arisen out of an applicant's employment so as to constitute an injury by accident within the meaning of the legislation. See also Gorris v Scott (1874) LR 9 Ex 125 at 129, 130, cited in Hart and Honoré "Causation in the Law" 2nd ed; 93, and Fleming and Perry "Legal Cause" (1951) 60 Yale LJ 761 at 789-790. The matter is further discussed in Hart and Honoré (op. cit.) 117-121, 141-142, 414, Hart and Honoré "Causation in the Law" (1956)72 LOR 58 at 59-60, and Trindade and Cane "The Law of Torts in Australia" 580-582. Thus, in construing s.82 it is appropriate to bear in mind such matters as the scope and purpose of the Parts IV and Vv of the TP Act as directed significantly to issues of economic loss or damage, the wide range of subject matters dealt with in Parts Iv and v but all linked to s.82, the extension of liability beyond the immediate actors to persons involved (within the meaning of s.75B) in the contravention in question, the exclusion of contraventions of s.52A from the wide spectrum of contraventions to which s.82 does attach, the absence of any direct provision to apportion responsibility for loss or damage between applicant and respondent or third parties, and the apparent telescoping of what to the common 21. law would be issues of causation, remoteness and measure of damages. However, common law analogies will not necessarily offer sufficient guidance, particularly where, as is the case with the TP Act, the statute evinces an intention to supplement the common law or, further, to travel into new fields. It is clear that the conduct in contravention of a provision of Part Iv or Part V of the TP Act need not be the only cause of the "loss or damage" (within the meaning of 5.82(1)) which may be recovered: Milner v Delita Pty Ltd (1985) 61 AUR 557 at 572. The presence of other operative causes thus is not necessarily fatal to the applicant's clain. However, it may be that, whilst the facts constituting the contravention of a provision of Part IV or Part V of the TP Act are, with other causes, necessary preconditions of the "loss or damage", in the circumstances of the particular case it is those other causes which are properly to be treated as the real, essential, substantial, direct, or effective cause of the loss or damage cf Stapley v Gypsum Mines Ltd [1953] Ac 663 at 681-2, 687-8. Such a case might arise for consideration where those other causes involved acts or omissions on the part of the applicant, which were in breach of a legal, equitable or other statutory duty owed by the applicant to the respondent or to third parties. In such a 22. case the Court might treat those other causes as the essential or effective cause of the loss or damage and hold there was no right to damages under s.82. A question might then arise as to whether some more limited relief under some other provision of Part VI was appropriate. The Present Authorities The respondent referred to Fenech v Sterling (1983) 51 ALR 205 in support of its submissions upon the second Trade Practices claim. The applicants in that case had, on 12 November 1975, signed various documents including a contract for the purchase of an interest in certain land, and paid a deposit. They paid the balance on 21 November 1975. Davies J (at 221) said: In the present case, the cause of action accrued when, in November 1975, the applicants signed the contract for the purchase of an interest in the Paradise Waters Estate and paid moneys to [the vendor]. The applicants then suffered loss as the result of conduct of [the vendor] that was in contravention of s.52... I do not see that decision as one in which the accrual of the cause of action stemmed solely from the entry into the contract; rather the Court also was looking to the substantial performance by the purchasers of their obligations under the contract. 23. Such a view would be consistent with the later and more general observations of Toohey J in Arcadi v CML Assurance Society Ltd [1984] ATPR 40-473 at 45, 454, and in James v ANZ Banking Group Ltd (1986) 64 ALR 347 at 392. The substance of what was there said is that (i) once an applicant has suffered loss or damage relevant to his claim, time begins to run (ii) but there may be several distinct losses (and, semble, distinct claims) flowing from conduct in contravention of a provision of Parts Iv or V of the TP Act and (iii) where the conduct complained of is promissory in character, the Court should not be constrained by analogies derived from tort. The applicant relies on point (ii) particularly in respect of the first Trade Practices claim and in response to the respondent's submission that any cause of action accrued when the contract was made or the system went off the market. Point (ii) illustrates the encapsulation within s.82 of concepts of causation, remoteness and measure of damages, a matter to which I have referred earlier in these reasons. As to point (iii), Toohey J was speaking before the High Court judgment in Gates v City Mutual Life Assurance Society Ltd (1986) 60 ALJR 239. But that was a case concerned with the measure of damages for contravention of s.52 of the TP Act, and, in that setting Mason, Wilson, Dawson JJ (at 244), whilst favouring the tort measure, did point out that there was no necessity to make a definitive choice between the "contractual" and "tort" measures of damages so that one 24. applies to all contraventions to the exclusion of the other. Tort and contract today are separated by rather less than clear bright lines. This is true both of acts, statements and omissions preceding entry into contract (eg Esso Petroleum Co Ltd v Mardon [1976] QB 801, Ware v Johnson [1984] 2 N2ZLR 518 at 540-541, Waddams "The Law of Contracts" 257-259) and of the standard required in performance of contractual obligations (eg. Brickhill v Cooke (1984) 3 NSWLR 396 at 401). Further, it would appear that in Gates' Case submissions to the High Court proceeded on the footing that between them tort and contract comprised the universe of analogues offered by the general law in s.52 cases. This is not so. Equity long has exercised jurisdiction to require representations to be made good. The modern branch of that jurisdiction is represented by decisions upon so-called proprietary estoppel: Dawson, "Making Representations Good" (1982) 1 Canterbury L Rev 329, Davidson "The Equitable Remedy for Compensation" (1982) 13 Melb. U L Rev 349 at 356 et seq. These decisions, in Australia, include cases where pecuniary relief was deemed appropriate: Norris Vv Perpetual Executors,Trustees and Agency Co (WA) Ltd (1942) 44 WALR 21, Raffaele v Raffaele [1962] WAR 29, Jackson v Crosby (No.2) (1979) 21 SASR 281, Morris v Morris [1982] 1 NSWLR 61. Like s.52, and unlike deceit, equity operates without the necessity to prove any misleading intention by the defendant. Like s.52, and unlike negligence, equity does not require the 25. existence of a duty of care. And the width of the equity jurisdiction is balanced by the general power to impose terms on a successful plaintiff. Further, equity may remedy breach of fiduciary duty (eg by failure to disclose a conflict of interest) by requiring pecuniary restitution for loss consequent upon that breach (McKenzie v McDonald [1927] VLR 134 at 146, United States Surgical Corp. v Hospital Products International Pty Ltd {1982] 2 NSWLR 766 at 816, Farrington v Rowe McBride and Partners [(1985} 1 NZLR 83 at 93,99); the measure of restitution is not governed by principles drawn from tort or contract (Re Dawson (dec'd) {1966] 2 NSWR 211, Bartlett v Barclays Bank Trust Co[No.2} [1980] Ch 515 at 543, Guerin v The Queen (1985) 13 DLR (4th) 321 at 362-367, Mid-Northern Fertilisers Ltd v Connell (New Zealand High Court, 18 September 1986, unrep., Thorp J, at 43,45), Marr v Arabco Traders Ltd (New Zealand High Court 22 May 1987,unreported , Tompkins J, at 228-231). And failure, in breach of equitable duty, to make disclosure may also constitute misleading or Geceptive conduct within the meaning of s.52 of the TP Act (Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 68 ALR 77 at 84-85, 98, 102). In any event, it would be unfortunate if s.82 of the TP Act were to be applied to particular cases by a process that encouraged the Court first to turn to common law concepts, whether as to causation, remoteness or measure of damages. 26. Conclusions This is not an appropriate occasion to rule finally upon the correct construction of s.82(2) in its application to either of the Trade Practices claims. Toohey J observed in Arcadi's Case (supra) at 40-472,473) that the meaning, scope and operation of s.82(2) have not yet scarcely been explored; in the foregoing I have done no more than essay some issues that do appear to arise. His Honour added that particular care is called for in determining that no reasonable cause of action has been disclosed. Toohey J returned to this topic in Nella v Kingia Pty Ltd (1986) 7 IPR 55, and described the weight of authority as being against dismissing a proceeding or striking out a statement of claim as disclosing no cause of action because the party sued may have a defence under the relevant limitation statute. In my view, it has not been demonstrated that in respect of either of the Trade Practices claims the applicant has disclosed no reasonable cause of action. I have reached the decision that the respondent's application on the motion filed 16 June 1987 should be dismissed. The applicant has leave to amend paragraph 19 of the Statement of Claim in the light of these reasons. I will hear the parties on costs. 27. I certify that this and the twenty-six (26) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Gummow. Associate: "au Kaus Date: 16 July 1987 Counsel and Solicitors for the Applicant on the motion, the Respondent in the proceeding. Counsel and Solicitors for the Respondent to the motion, the Applicant in the proceeding. Date of Hearing: Date of Judgment: R.D. Giles Q.C. with A.J,L. Bannon instructed by Allen Allen and Hemlsey D.A. Staff Q.C. with P.M. Donohoe and R. Darke instructed by McDermott McGruther. 22 June 1987 16 July 1987