Golden West Refining Corp v Daly Laboratories Pty Ltd & Anor [1995] FCA 1

C A T C H W O R D S TRADE PRACTICES - Misleading or deceptive conduct - gold refiner requiring hydrochloric acid in substantial quantities - important that such acid not contain fluorine - regular supplier usually sourced acid from plant producing fluorine-free acid - when acid from that plant not available, regular supplier obtained substitute acid from interstate on several prior occasions - on such prior occasions substitute acid satisfactory - further occasion for supply of substitute acid from same interstate source - this time acid contained high level of fluorine contamination - equipment damaged and gold lost - whether implied representation that substitute acid reasonable substitute - whether misleading or deceptive conduct - whether negligence - sale by description - whether compliance with description - whether purpose sufficiently made known for condition of reasonable fitness to be implied. INDEMNITY AND CONTRIBUTION - contribution - two respondents held to have contravened s.52 of Trade Practices Act - second respondent also held to be liable in negligence - both liable to pay damages to applicant for same loss - cross-claims between respondents for indemnity and contribution - first respondent successful against second respondent in negligence. Sale of Goods Act 1895 (W.A.) ss.13, 14(I), 14(II) Trade Practices Act 1974 (Cth) ss.52. 82 Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (W.A.) ss.4(1), 7. GOLDEN WEST REFINING CORPORATION LIMITED v. DALY LABORATORIES PTY LTD and CLYDE INDUSTRIES LIMITED WAG 63 of 1992 CARR J. PERTH 5 JANUARY 1995

INDEX Page 1 Introduction 2 Factual Background 7 The Pleadings 14 The Evidence - Initial Arrangements for the Supply of Hydrochloric Acid 19 The Need to Obtain Hydrochloric Acid from elsewhere 21 The Incident on 11 January 1990 27 The Incident on 24 January 1990 28 The Source of the Problem 30 The Applicant's Claims against Daly Laboratories 30 Section 52 of the Trade Practices Act 37 Section 14(I) of the Sale of Goods Act 1895 (W.A.) 40 The claim based upon section 13 of the Sale of Goods Act. 43 Negligence 47 The Applicant's Claims against the Second Respondent 47 The claim under s.52 of the Trade Practices Act 58 The Applicant's Claim against the Second Respondent in Negligence 59 Whether Golden West was Contributorily Negligent 62 Conclusions Concerning the Applicant's Claims 63 The Cross-Claims 69 Conclusions Overall