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

IN THE FEDERAL COURT     )

OF AUSTRALIA                    )

WESTERN AUSTRALIA        )

DISTRICT REGISTRY            )

GENERAL DIVISION            )                      No. WAG 63 of 1992

B E T W E E N:                                            GOLDEN WEST REFINING CORPORATION LIMITED

                                                                                         Applicant

                                                                   and

                                                                   DALY LABORATORIES PTY LTD

                                                                                         First Respondent

                                                                   and

                                                                   CLYDE INDUSTRIES PTY LTD

                                                                                         Second Respondent

CORAM:      CARR J.  

PLACE:        PERTH

DATE:           5 JANUARY 1995

                                           MINUTE OF ORDERS

THE COURT ORDERS AND DECLARES THAT:

A.   The applicant's claim against the respondents

      1.    The first respondent and the second respondent pay to the applicant the sum of $146,601.33 together with such interest thereon as may be fixed in due course.

B.   The first respondent's cross-claim against the second respondent

      2.    The first respondent is entitled to contribution to the full extent of any amount or amounts which pursuant to paragraph 1 above, the first respondent is obliged to pay to the applicant.

C.   The second respondent's cross-claim against the first respondent

      3.    The second respondent's cross-claim against the first respondent be dismissed.

      4.    The parties submit a minute of agreed orders as to interest and costs or in the absence of such agreement file and serve written submissions on interest and costs by no later than 20 January 1995.  Any submissions in reply are to be filed and served no later than 27 January 1995.

      NOTE:  Settlement and entry of Orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT     )

OF AUSTRALIA                    )

WESTERN AUSTRALIA        )                      No. WAG 63 of 1992

DISTRICT REGISTRY            )

GENERAL DIVISION            )                     

B E T W E E N:                                            GOLDEN WEST REFINING CORPORATION LIMITED

                                                                                         Applicant

                                                                   and

                                                                   DALY LABORATORIES PTY LTD

                                                                                         First Respondent

                                                                   and

                                                                   CLYDE INDUSTRIES PTY LTD

                                                                                         Second Respondent

CORAM:      CARR J.

PLACE:        PERTH

DATE:          5 JANUARY 1995

                                      REASONS FOR JUDGMENT

                                                   Introduction

          In this matter, the applicant Golden West Refining Corporation Limited ("Golden West") claims damages against the first respondent Daly Laboratories Pty Ltd ("Daly Laboratories") and the second respondent Clyde Industries Limited ("Clyde Industries") arising out of damage to its gold refining equipment and loss of gold caused by hydrofluoric acid contained in batches of hydrochloric acid supplied to Golden West during the months of December 1989 and January 1990.  The claims are based on s.52 (when read with s.82) of the Trade Practices Act 1974 (Cth).  In the alternative, Golden West seeks damages from Daly Laboratories for breach of contract and, in the further alternative, damages from both respondents for
negligence.  Golden West also seeks interest on any damages awarded.  At the hearing, the applicant abandoned any contractual claim against Clyde Industries.

                                             Factual Background

          Golden West carries on the business of refining gold at premises in Kewdale, a suburb of Perth.  In the gold refining process, Golden West uses glass-lined steel refining vessels ("the Vessels") and glass condensers ("the Condensers").   

          That process also involves the use of substantial quantities of hydrochloric acid.  Daly Laboratories was the wholesale supplier of that acid to Golden West.  Usually Daly Laboratories obtained those supplies from a local manufacturer, CSBP Farmers Ltd ("CSBP").  The problems which gave rise to this litigation occurred when CSBP was unable to keep up supplies and some batches of hydrochloric acid were obtained from Clyde Industries, a manufacturer based in New South Wales.  In turn, Clyde Industries obtained these particular batches of acid from yet another supplier.  As will be seen, the different chemical processes whereby hydrochloric acid is made determine whether it will contain hydrofluoric acid.  Hydrofluoric acid is, apparently, one of the few substances which attacks glass significantly.  During the course of the hearing of this matter the word "fluorine" has been used by the parties as being interchangeable with "fluoride" which is a compound of fluorine.  In these reasons I shall refer to fluorine with the intention also of referring to fluoride where the parties have used that word.

          A brief description of the gold refining process employed by Golden West may assist in understanding some of the issues which arise in this matter.  To start the process, partly-refined gold granules are put into each Vessel.  Common salt (sodium chloride) is then placed on top of the granules following which water is added to a level which covers the granules.  Then approximately 200 litres of hydrochloric acid are added to the solution followed by 50 to 60 litres of nitric acid.  The mixture of hydrochloric acid and nitric acid forms what is known as "aqua regia".  Heat is applied to the solution and within 3 to 4 hours the gold granules are dissolved into the solution.  The source of the heat is steam which is passed into a steel jacket surrounding the Vessel.  Once the gold has been dissolved, the level of steam is increased with a view to increasing the temperature of the solution to the extent that evaporation starts.  Immediately above the Vessel there is a Condenser into which the gold-bearing steam is guided.  The Condenser is a glass cylinder approximately 800mm high with a diameter of approximately 185mm in which there is a tubular glass coil.  Cold water is circulated into the coil at a point near the top of the glass cylinder and flows through the tubular glass coil and out through an outlet near the foot of the cylinder.  That cold water circulation system is self-contained.

          The purpose of the Condenser is to catch any gold-bearing steam emerging from the solution.  When the steam comes into contact with the cool glass coil it condenses on the coil and drops back into the Vessel.  By the second day of the process, the solution is boiled down to a very low level and at that point more hydrochloric acid is added to aid in the removal of the nitric acid which in turn leads to precipitation of the gold out of the solution.  Tap water is then added and the solution is boiled.  Eventually a gold chloride solution is decanted and placed into a
plastic vessel.  Sulphur dioxide gas is then bubbled through the gold chloride solution which precipitates the gold as a metallic gold particle of extremely high purity.  The process is known as "the aqua regia refining process".  The refining units, each comprising a Vessel and a Condenser were arranged in a row of about nine (the evidence was imprecise about the number) such units, together with associated equipment.

          As can be seen from the above, the process requires the use of quantities of hydrochloric acid.  Because glass-lined refining vessels and glass condensers are used in the process and because fluorine corrodes glass it is important that there should not be any fluorine in the hydrochloric acid so used. 

          Daly Laboratories started supplying Golden West with hydrochloric acid in April 1988 soon after the latter commenced its gold refining business in Western Australia.  The acid was supplied in 200 litre drums.  In April 1988 five 200 litre drums were so supplied but the monthly purchases gradually increased to forty-four drums in October 1989 and forty-eight in November 1989. 

          Until February 1989 all of the acid so supplied had been obtained by Daly Laboratories in Western Australia from CSBP.  CSBP manufactured hydrochloric acid as a by-product of a chlor-alkali process.  That process results in the hydrochloric acid having no fluorine content.  Due to shortages of CSBP hydrochloric acid occurring in February, April and May 1989 an alternative source of supply had to be found.  In February 1989 six out of the twenty 200 litre drums of hydrochloric acid supplied by
Daly Laboratories to Golden West had been manufactured by the Ajax Chemicals division of Clyde Industries (hereinafter variously referred to as "Ajax Chemicals" or "Clyde Industries").  During April and May 1989 a further twenty-four such drums were similarly sourced from Ajax Chemicals and supplied by Daly Laboratories to Golden West.  No difficulties were encountered and no incidents occurred of the type which gave rise to this litigation.

          In the first half of December 1989 a further shortage of CSBP hydrochloric acid arose.  Golden West's refinery manager, Mr Stuart Hodge discussed with Mr Bryan Banovich, Managing Director of Daly Laboratories the question of alternative supplies.  Mr Banovich had ascertained that supplies were available again from Ajax Chemicals but that the price per drum would (as had been the case on the previous occasions) be about $25 more from Ajax than from CSBP.  Daly Laboratories usually charged Golden West $99.97 per drum for CSBP hydrochloric acid which included a profit for Daly Laboratories, whereas its price for hydrochloric acid sourced from Clyde Industries was $125 per drum being the price charged to it by Clyde Industries.

          On 11 December 1989 Golden West placed a purchase order for chemicals with Daly Laboratories which included twelve drums of hydrochloric acid.  As arranged between Mr Hodge and Mr Banovich, this order was filled by Daly Laboratories delivering to Golden West (on 12 and 13 December 1989) four drums of hydrochloric acid sourced from CSBP and eight drums of hydrochloric acid sourced from Ajax Chemicals.  The Ajax Chemicals hydrochloric acid supplied by Daly Laboratories on 12 and 13 December 1989 apparently came from stock then held by
Daly Laboratories.

          On 20 December 1989, Golden West placed a further order with Daly Laboratories for thirty-two drums of hydrochloric acid, which was accepted.  Twenty-four of the drums supplied were of hydrochloric acid sourced from Ajax Chemicals and eight were from CSBP.  Of the twenty-four drums sourced from Ajax, eight drums were delivered by Daly Laboratories from its stocks and sixteen were delivered direct by Ajax Chemicals to Golden West, on instructions given by Daly Laboratories while those drums were in transit.  Thus, between 12 December 1989 and 15 January 1990 Golden West received thirty-two drums of hydrochloric acid sourced from Ajax Chemicals.

          Golden West says that when it used the Ajax Chemicals hydrochloric acid supplied pursuant to its December 1989 orders in its gold refining process, two accidents occurred.  The first accident was on 11 January 1990 and the second on 24 January 1990.  In the first accident, two Condensers were damaged, although at that stage it was not known that the damage was caused by the acid.  When the second accident occurred on 24 January 1990 it was found that the glass lining on the Vessel concerned had been corroded.  Five other Vessels and three Condensers were also found to be damaged.  It was then that the hydrochloric acid was suspected.  Golden West seeks damages in respect of replacing Condensers and Vessels and also in respect of loss of solution containing gold.  Out of a total claim for damages of $146,601.33, $62,132.46 is claimed for loss of gold.

          It is common ground that hydrochloric acid caused the damage to the Condensers and Vessels because that acid contained fluorine in the form of hydrofluoric acid.

                                                  The Pleadings

          Both respondents admit that they are trading corporations.  Golden West puts its claim first on the basis that Clyde Industries represented to Daly Laboratories that its hydrochloric acid contained fluorine of a maximum of 100 parts per million and that, in turn, Daly Laboratories made two implied representations to Golden West. The first was that the Ajax Chemicals hydrochloric acid was suitable for use in Golden West's gold refining process.  The second was that such hydrochloric acid contained little or no hydrofluoric acid.

          Golden West says that the implied representations (although they were referred to in the singular in all but the first of the relevant paragraphs of the statement of claim) are to be implied from the fact that Daly Laboratories knew that:

    .     Golden West carried on the business of refining gold and in the gold refining process used hydrochloric acid; 

    .     Golden West required hydrochloric acid which contained little or no hydrofluoric acid; and

    .     the acid usually supplied to Golden West was obtained by Daly Laboratories from CSBP and contained no hydrofluoric acid.

          Golden West says further that Mr Banovich represented to Golden West in or about December 1989 that Daly Laboratories was able to supply to Golden West hydrochloric acid from Clyde Industries in place of hydrochloric acid usually obtained from CSBP and that Daly Laboratories knew that this hydrochloric acid was required by Golden West for use in its gold refining process.  It pleads that such knowledge arose from the fact that Mr Banovich had attended its refinery at Kewdale and knew that Golden West required hydrochloric acid for its gold refining process.  During closing submissions, counsel for Golden West conceded that no conclusion favourable to his client could be drawn from the evidence about Mr Banovich having visited its refinery.  Rather, the applicant relied upon a communication said to have been made by its former supervisor, Mr Damian Spence to Mr Banovich, prior to June 1988, that the hydrochloric acid was to have little or no hydrofluoric acid in it.

          Golden West alleges that the representation referred to above as having been made by Clyde Industries to Daly Laboratories was made in order to induce the latter to enter into a contract for the supply of Clyde Industries' hydrochloric acid.  Further, the representations by Daly Laboratories (that such acid was suitable for use in Golden West's gold refining process and that the hydrochloric acid contained little or no hydrofluoric acid) were made in order to induce Golden West to enter into a contract for the supply of that acid.

          The applicant claims that Daly Laboratories contravened s.52 of the Trade Practices Act because the implied representations that the acid was suitable for use in its gold refining process and that it contained little or no hydrofluoric acid were false representations.

          So far as Clyde Industries is concerned, Golden West relies first on the falsity of the representation said to have been made by Clyde Industries to Daly Laboratories that its acid contained a maximum concentration of hydrofluoric acid of 100 parts per million.  Secondly, Golden West says that Clyde Industries labelled the drums in a manner which represented that each drum contained 32% hydrochloric acid but failed to disclose the presence of any level of fluorine, thereby representing that each such drum did not contain any significant level of fluorine whereas in fact the drums contained significant concentrations of fluorine in excess of 100 ppm that were likely to and did cause damage to the applicant's glass condensers and refining vessels.

          By reason of the foregoing, Golden West alleges that each respondent, by making such false representations, engaged in conduct that was misleading or deceptive or was likely to mislead or deceive contrary to s.52 of the Trade Practices Act.  Golden West says that it relied on the representations made by Daly Laboratories and was induced by those representations to enter into the contract to buy the thirty-two drums of hydrochloric acid in December 1989 at a price of $4,000.  It also pleads reliance on those representations and the representations said to have been made by Clyde Industries by labelling the drums when it (Golden West) placed the acid in its glass condensers and glass refining vessels.  Neither respondent has raised the question whether there might really have been two contracts rather than one contract as pleaded.

          The first alternative basis of the claim made by Golden West against Daly Laboratories is that before the contract for the sale of the thirty-two drums of acid was made, Golden West impliedly made known to Daly Laboratories the purpose for which the acid was required, namely use in the gold refining process, so as to show that the applicant relied on the skill and judgment of Daly Laboratories in selecting the acid. 

          In those circumstances, Golden West claims that by virtue of s.14(I) of the Sale of Goods Act 1895 (W.A.) there was an implied condition in the contract that the hydrochloric acid would be reasonably fit for the purpose for which that acid was intended to be used.

          Golden West claims that in breach of that implied condition in the contract of sale, the hydrochloric acid supplied was not reasonably fit for the purpose for which it was intended to be used, namely in the gold refining process, in that it contained significant levels of fluorine in excess of 100 ppm that were likely to and did cause damage to the applicant's glass condensers and refining vessels.

          The second alternative contractual basis upon which Golden West claims against Daly Laboratories is the breach of a condition said to be implied by virtue of s.13 of the Sale of Goods Act 1895 (W.A.).  Golden West pleaded, by way of an amendment very late in the course of the hearing, that Daly Laboratories sold the hydrochloric acid to it by the description "technical grade hydrochloric acid", that accordingly there was an implied condition in the contract that the acid would
conform to that description but because its fluorine content was significantly in excess of 100 parts per million, the acid did not conform to that description.  As part of this particular claim Golden West pleads that at all material times it understood that the acid so supplied and described as "technical grade hydrochloric acid" did not have a fluorine content exceeding 100 ppm.

          A further alternative basis upon which Golden West puts its claim against both the respondents is in negligence.  It says that by reason of the relationship between Daly Laboratories as seller and supplier of acid and itself as purchaser and consumer of acid and the fact that Daly Laboratories supplied or caused Clyde Industries to supply the acid to Golden West, Daly Laboratories owed Golden West a duty to exercise reasonable care in connection with the selection and supply of the acid.  Further, Golden West claims that by reason of the relationship between Clyde Industries as manufacturer "and, or alternatively supplier," of acid and Golden West as consumer of acid and the fact that Clyde Industries supplied the acid to Golden West, Clyde Industries owed Golden West a duty to exercise reasonable care in connection with the manufacturing, labelling, selection and supply to it of hydrochloric acid.

          The applicant claims that each respondent was negligent in the following respects:

             .      failing to take any or any adequate steps to test or verify the level of fluorine in the acid before it was supplied to Golden West;

             .      supplying Golden West with acid containing fluorine in excess of 100 ppm;

             .      failing to warn Golden West that the acid did not merely contain hydrochloric acid but also contained fluorine, that is hydrofluoric acid, in excess of 100 ppm;

             .      failing to warn Golden West to test or verify the level of fluorine in the acid before it was used;

             .      failing to take any or any adequate steps to ensure that the drums of acid supplied to Golden West were labelled with an accurate statement of the level of fluorine in the acid;

             .      failing to take any or any adequate steps to ensure that the acid supplied to Golden West was "technical grade hydrochloric acid";

             .      failing to warn Golden West that the acid supplied did not meet its description of "technical grade hydrochloric acid".

          In its defence, Daly Laboratories denies making any implied representations, denies engaging in conduct that was misleading or deceptive or that was likely to mislead or deceive, denies any breach of contract and denies negligence.  Negligence is put in issue both by denial of the duty of care as pleaded and denial of breach of any duty of care which may have existed.  Daly Laboratories pleads that any damages sustained by Golden West were as a result of that company's own negligence.

          Clyde Industries, in its defence, denies that it engaged in conduct which contravened s.52 of the Trade Practices Act as alleged, and denies that it owed the duty of care as pleaded or that it breached any duty of care.  It says that, other than the fact that it was requested to deliver to Golden West's premises one part of the shipment of technical grade hydrochloric acid sold by it to Daly Laboratories, it had no "other" knowledge of the purpose for which Daly Laboratories was purchasing the acid nor did it have any knowledge whatsoever of the purpose to which the 16 drums of acid which it delivered to Golden West direct in January 1990 would be put by that company.  This latter plea does not sit altogether comfortably with the admission in paragraph 8A(vi) of Clyde Industries' defence that it understood that Golden West carried on the business of refining gold.  In specific response to the complaint about labelling, Clyde Industries says that there was no requirement and nor was it the usual industry practice to specify on the label the level of fluorine for this grade of hydrochloric acid.  Clyde Industries also alleges that any loss or damage which Golden West may have sustained was caused by or contributed to by Golden West's own negligence. 

          Each respondent has made a cross-claim against the other for full contribution to the extent of any damages which it may be held liable to pay to Golden West.

          In summary, Daly Laboratories' cross-claim against Clyde Industries for contribution to the full extent of any damages which may be awarded to Golden West against Daly Laboratories is based on an implied condition that the acid would correspond with the description "technical grade hydrochloric acid" and its failure to do so, an implied condition that the acid would be of merchantable quality and the fact that it was not of merchantable quality, an implied condition of fitness for suitable purpose (use in a gold refining process utilising glass condensers and gold refining vessels) and its unfitness for that purpose, negligence (breach of a duty of care said to have been owed by Clyde Industries to take various precautions whichwould have prevented the losses sustained by Golden West) and breach of an impliedcontractual term to take reasonable precautions.  Indemnity and contribution are also sought (but
only in respect of Golden West's claim in negligence) under s.7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (W.A.) ("the Contribution Act").

          Clyde Industries' cross-claim against Daly Laboratories is based on negligence and breach of an implied contractual term to take reasonable precautions.  It also claims indemnity and contribution under s.7 of the Contribution Act but, again, only in respect of Golden West's claim in negligence.

                                                  The Evidence

1.       Initial Arrangements for the Supply of Hydrochloric Acid

          Golden West started its gold refining operations in Perth in February or March 1988.  Its managing director, Mr Michael George Ryan, gave evidence that he had 25 to 28 years of experience of gold refining using the aqua regia process in the United Kingdom and in Melbourne before joining Golden West in Perth in 1987.  Mr Ryan's evidence was that he was not familiar with any Western Australian acid suppliers at the time operations started.  Hydrochloric acid had to be obtained and another employee of Golden West, a Mr Damian Spence suggested to him that supplies of hydrochloric acid be obtained from Daly Laboratories.  Mr Spence was Golden West's supervisor and part of his duties was to order supplies of hydrochloric acid from time to time.  Mr Ryan's evidence was (and I believe him) that he told Mr Spence to ensure, before placing orders with Daly Laboratories, that the acid so supplied did not contain hydrofluoric acid. 

          Mr Spence gave evidence that he was directed by Mr Ryan to find a supply of acid which had little or no "hydrofluoric" in it.  His evidence was that he then discussed that matter with Mr Banovich and requested a technical data sheet from Mr Banovich's supplier (which Mr Spence described as "the initial supplier").  Mr Spence gave evidence that Mr Banovich told him that the supplier was a local supplier, and that its process for making acid was such that the acid did not have a hydrofluoric component.  He recalled obtaining a facsimile containing a handwritten specification of the supplier's acid.  Mr Spence was not sure whether that fax came direct from CSBP or via Daly Laboratories. 

          Mr Banovich, in his evidence in chief, was asked:

                         "Was there ever any occasion at the time you commenced making such supplies, or prior thereto, when you were advised by anyone on behalf of the applicant that the acid shouldn't have fluorine in it?"

          Mr Banovich's response to that question was "No, not at all" (transcript p.489).

          Shortly afterwards (still in evidence in chief and on the next page of the transcript) Mr Spence's evidence was put to Mr Banovich.  Mr Banovich then said that he had no recollection whatsoever of the conversation with Mr Spence or of the issue of hydrofluoric acid content being discussed with him by Mr Spence in February or March of 1988.  He could not recall whether he had supplied a specification sheet but was certain that he did not fax a specification sheet to Mr Spence because his company did not purchase a fax machine until April 1989.  He did recall some discussion with Mr Spence in relation to the iron content of the acid and felt that this "would have been within the first year".  There then occurred (again in Mr Banovich's examination in chief) the following exchange:

                         "Mr Barker:  Well, at any time between the period when you first discussed the possibility of supplying chemicals to the applicant and the time that you then commenced supplying chemicals including hydrochloric acid right through to December 1989 did anyone at or on behalf of the applicant raise with you at any time the question of hydrofluoride contamination of the acid? --- No, the issue was never raised. 

                         Mr Barker:  Well, fluorine content of the acid? --- No."

          I formed the impression that both Mr Spence and Mr Banovich were honest witnesses but that Mr Spence had quite a clear recollection of this initial conversation whereas Mr Banovich simply had no recollection of it and that his denials which I have set out above were made because he did not recall the conversation or conversations with Mr Spence which were put to him.  In the circumstances of what appear to be conflicting pieces of evidence from Mr Banovich, I have inferred that Mr Banovich had no recollection of the matter being raised prior to commencement of supplies but was certain that the issue was never raised after commencement of supplies.  To the extent that Mr Banovich may have been saying that Mr Spence had not told him, prior to the first supplies being made in 1988, that the acid should not have fluorine in it, I prefer to accept (and do accept) Mr Spence's evidence, particularly in view of the exchange of letters to which I refer below.  I should add that Mr Spence was at the time of the hearing no longer employed by Golden West, having left that employment in February 1989.

          The applicant relied on two letters to support the inference that Mr Banovich knew that it was essential that hydrochloric acid supplied to the applicant should not contain any fluorine.  The first (Exhibit U) was a letter dated 8 May 1990 from Robins MBS (WA) Pty Ltd, loss adjusters acting for one of the applicant's insurers, to Daly Laboratories.  The letter gave notice that the insurer intended to seek recovery (of moneys which it might be obliged to pay to satisfy its insured's claim) from Daly Laboratories.  The second paragraph of that letter read:

                         "It is our understanding that you are fully aware of the use to which the acid would be put and the fact that it was essential that the hydrochloric acid did not contain a hydrogen fluoride contaminant in view of the use of glass lined vessels and condensers in the process of refining gold".

          Daly Laboratories responded by letter, signed by Mr Banovich as Managing Director, on the very next day.  The applicant relies on that letter because its author did not expressly deny and tacitly admitted the assertions in the paragraph set out immediately above, although it denied liability.  Two paragraphs in the letter were as follows:

                         "4.  We were certainly not aware that Ajax Chemicals sometimes obtains Hydrochloric Acid supplies from a FLUORO CARBON manufacturing plant.  As far as we were aware, the Acid was drawn from a CHLOR-ALKALI plant.  [Emphasis in original text]

                         . . . .

                         6.  We are fully aware that Acid was to be used in the refining of gold, however we were certainly not aware of the process involved, as this is obviously the confidential intellectual and technical property of Golden West Refining Corporation."

          It seems to me that from paragraph numbered 4 above I may infer (as I do infer) that if in December 1989 Mr Banovich had known that Ajax Chemicals was planning to source the hydrochloric acid from a fluorocarbon manufacturing plant Daly Laboratories would not have proceeded with the transaction.  The further
conclusion which I have drawn from that inference is almost inescapable, namely, that it would not have proceeded because hydrochloric acid manufactured by the fluoro-carbon process would contain fluorine.  No other reason has been suggested to explain why Mr Banovich would not have accepted acid manufactured by that process.  If that conclusion is valid it necessarily follows, in my opinion, that Mr Banovich (and therefore Daly Laboratories) knew that any hydrochloric acid to be supplied to their customer, Golden West, should not contain fluorine.  The fact that Daly Laboratories may not have known the details of the process used by Golden West does not, in my view, affect the validity of the conclusion.  It was not necessary for Daly Laboratories to know precisely why the acid should not contain fluorine.

          I accept Mr Ryan's evidence that he directed Mr Spence to ensure that any acid obtained from Daly Laboratories was to be free of hydrofluoric acid.  I also accept Mr Spence's evidence that he carried out that instruction, raised the matter with Mr Banovich and received some written confirmation.  There is also a certain consistency between Mr Banovich's knowledge that:

          .    CSBP had a chlor-alkali plant and a Mannheim plant both of which produced a fluorine-free hydrochloric acid (transcript p.502);

          .    his understanding that Ajax Chemicals hydrochloric acid came from ICI's chlor-alkali plant (transcript p.498);

and the raising of that issue with him by Mr Spence in February 1988.  In my view, what probably happened was that either by virtue of a request by Mr Banovich to CSBP or a direct approach by Mr Spence to CSBP, that company sent a fax to Mr Spence confirming that there was no fluorine in its hydrochloric acid.

2.       The Need to Obtain Hydrochloric Acid from Elsewhere

          It would appear that between April 1988 and February 1989 Daly Laboratories continued to supply Golden West with hydrochloric acid without any difficulties.

          In February 1989 CSBP hydrochloric acid was in short supply.  Mr Spence was the person at Golden West with whom Mr Banovich dealt in relation to that matter.  Mr Spence recalled a discussion about the fact that hydrochloric acid could not be obtained from the normal supplier and that the added expense was not really a problem.  Mr Spence did not recall the issue of hydrofluoric contamination "being a point of discussion" when this alternative source was being considered.  Mr Spence left Golden West in the last week of February 1989 and there was no evidence that when further alternative supplies were obtained from Clyde Industries in April and May 1989 there was any discussion by any of the parties involved about the subject of whether that acid contained any hydrofluoric acid. 

          When the December 1989 shortage of CSBP acid occurred it was Mr Hodge (Golden West's Refinery Manager) who dealt with Mr Banovich.  Mr Hodge said that he could not remember the exact dates of his discussions with Mr Banovich about this topic but they probably took place during the first couple of weeks of December 1989.  There would have been three or four phone calls, he said, concerning the source, availability and price of alternative supplies of acid.  Mr Banovich told him that the most readily available source of acid was Ajax Chemicals and Mr Hodge agreed that the acid should be obtained from that source.  When Mr Hodge was askedwhether, in those discussions with Mr Banovich, he had told Mr Banovich that the acid should
not have fluorine in any form in it Mr Hodge's response was "no, I wouldn't - I don't recall having that conversation, no."  In view of this response and in view of Mr Banovich's evidence on the subject and the likelihood that had the question been raised again at this stage steps would have been taken to ensure that there was no fluorine in the acid I think that the probabilities are (and I so find) that the subject was not raised in those discussions.

          Mr Banovich's evidence was that in February 1989 when Mr Spence authorised him to source the supplies from Ajax Chemicals, neither Mr Spence nor any other person at Golden West asked him to obtain any technical data or specification sheet in relation to the Ajax Chemicals acid.  Similarly, in relation to the alternative supplies obtained in April and May 1989 from Ajax Chemicals, Mr Banovich swore that he received authority from Golden West to obtain those supplies and was not instructed to obtain any technical data or specification sheet in relation to the acid.  Mr Banovich gave evidence that at no time during the course of the dealings in February, April, May or even December 1989 was he instructed or told by Golden West that any acid to be supplied by Daly Laboratories was to be free of fluorine or hydrofluoric content.  I believe Mr Banovich's evidence on those matters.  It is consistent with the matter having been dealt with when Daly Laboratories first became a supplier of hydrochloric acid to Golden West.

          On the basis of the evidence summarised above, I have come to the conclusion that there was no further discussion between representatives of Golden West and Daly Laboratories about the need for the hydrochloric acid not to have fluorine in it
after the matter had been raised by Mr Spence with Mr Banovich in February or March 1988 shortly before Daly Laboratories started supplying acid to Golden West. 

          On 12 and 13 December 1989 eight drums of Ajax Chemicals hydrochloric acid were delivered to Golden West as were another twenty-four such drums between 8 and 15 January 1990.  Clyde Industries concedes that any Ajax Chemicals hydrochloric acid delivered pursuant to orders placed by Golden West with Daly Laboratories originated from Clyde Industries.

3.       The Incident on 11 January 1990

          Mr Hodge gave evidence that on the morning of 11 January 1990, as a result of something reported to him, he went to Golden West's refinery "wet area" which was where the Vessels, Condensers, pumps and associated equipment were situated.  Mr Hodge said that he noticed immediately that two of the nine or so Vessels were overflowing.  The cause was water running down the inside of the Condensers and into the Vessels.  The overflow was stopped by turning the Condenser recirculating pump off.  As the overflowing solution contained gold, it was extremely valuable.  Production ceased for that day while almost all the staff helped to clean up the gold-bearing solution which had overflowed from the Vessels.  A vacuum canister was used to suck the solution from the floor and further sluicing and vacuuming was carried out to flush out gold-bearing solution.  The solution retrieved was then reprocessed to recover the fine gold.  The two Vessels were emptied.  Mr Hodge said that, at that time, he was aware that the overflow could only have happened if there had been a breakage of some description or a hole in the inner coil of the Condensers where the
water normally recirculated.  There would have to have been such a breakage or hole for the water to run down the inside of the Condenser lining and drop into the Vessel, resulting in the overflow.

          On Mr Hodge's instructions, the two glass inner coils were removed for inspection.  When he inspected those coils he noticed a hole or a breakage in them in very similar places.  Mr Hodge swore that he had never seen damage like this before and because the coils had broken in the same place he thought that:

                   "... maybe it was a manufacturing fault because these coils were both purchased at the same time." 

Accordingly he contacted the supplier to find out whether it had any knowledge of any other coils breaking in the same place. 

          Mr Hodge then gave some evidence to the effect that he telephoned Mr Banovich to enquire whether there was any likelihood of the acid being contaminated with hydrofluoric acid and asked him whether he had any information as to the amount of hydrofluoric acid that might be present in the hydrochloric acid.  According to Mr Hodge, Mr Banovich said that he would endeavour to obtain a specification sheet.  Mr Hodge's evidence was that he rang Ajax Chemicals himself to find out whether their technical grade acid was likely to contain hydrofluoric acid and that he was informed that it would be always less than 100 parts per million.  Mr Hodge said that within ten to eleven days after the problem with the Condensers he received a technical data sheet headed "Ajax Chemicals Pty Ltd" by fax from MrBanovich.  Mr Hancy, counsel for Golden West, conceded in final address that Mr Hodge was
mistaken about when he received that fax from Mr Banovich containing the technical specification for Ajax Chemicals' hydrochloric acid.  Mr Hancy conceded that Mr Hodge may also have been mistaken in other respects about what he did on 11 January 1990.  By that I took him to be referring to Mr Hodge's evidence about taking up the matter of hydrofluoric acid with Mr Banovich and Ajax Chemicals.

          The matter is important because parts of the respondents' defences are to the effect that Golden West was negligent in continuing to use the Ajax Chemicals' hydrochloric acid after the incident on 11 January 1990 when, so the respondents argue, Golden West knew or ought to have known that the acid contained contaminants damaging to its refining vessels.

          I return to Mr Hodge's evidence.  In his evidence-in-chief Mr Hodge said that he did not really come up with a reason why the Condensers broke.  He speculated, at that time, that the glass might have become hot and then rapidly cooled or that there was a weak spot in the Condensers.  In cross-examination, Mr Hodge said that the response from Crown Corning, manufacturers of the Condensers, did not indicate that there was a manufacturing problem.  When it was put to him by Mr Barker, counsel for Daly Laboratories, that given Mr Hodge's knowledge by training, education and previous employment of the effect that fluorine can have on glass, it was surprising that he did not seriously consider that there had been a fluorine problem, Mr Hodge's response was that the nature of the damage did not convey to him that it was caused by a chemical attack.  In cross-examination by Mr McCormack, counsel for Clyde Industries, Mr Hodge acknowledged that he had really been
guessing that there had been a mechanical failure and it was not likely in his experience that two mechanical units, wholly independent of each other, would fail simultaneously.  Mr Ronald Andrew Cunningham, a tradesman employed at the time by Golden West as a maintenance fitter, gave evidence that he inspected the damaged Condensers on the day of this incident.  Mr Cunningham said that he then formed the opinion that these were mechanical breaks caused perhaps by water hammer or a flaw.  Mr Ryan's evidence was that he saw that the coils in two of the Condensers were broken.  He had discussions with his employees about possible causes.  He rang the manufacturers, Crown Corning and spoke to them about the possibility of mechanical damage or heat shock and, after describing how the cooling water was run, asked them if they had any history of this type of incident.  They were unable to assist him to identify the cause.  He thought that it was very very unlikely, given the method used to circulate the cooling water, that water-hammer was the cause.  Mr Ryan considered the possibility of fluorine in the cooling water due to that water having been exposed to the atmosphere.  He considered this possibility because it appeared to him that the only likely explanation at that stage was that the problem was something to do with the inside of the coils.  It was impossible to check this because fresh water had been automatically added to the system as it drained out of the coils.  In the end, as Mr Ryan put it, he was left with an unexplained cause.  The other five or six Vessels were all running.  Mr Ryan said that he did not consider, at that stage, the possibility that hydrofluoric acid in the hydrochloric acid might have been the cause.  Mr Ryan was cross-examined about his failure to detect certain etching on an area of the internal surface of one of the Condensers [Exhibit R(i)] in the vicinity of the break in the coil.  The etching was not on the coil itself but near a
join and also inside what was described as (and resembles) a thimble.  Mr Ryan's explanation was that he did not notice the etching because the whole inside surface of the Condenser was wet and the etching looks like water.  Professor Ian Ritchie, Professor of Chemistry at Murdoch University was called by the second respondent.  Part of Professor Ritchie's evidence was that the etching on the inside of various parts of the inside of the two Condensers was obvious to the eye.  I have examined these two exhibits and it is quite true that etching can be seen at the locations pointed out by Professor Ritchie.  Mr Ryan acknowledged (transcript p.449) that if he had found this etching he would have suspected its cause to be the presence of hydrofluoric acid in the hydrochloric acid or any other acid which Golden West was using in its refining process.

          Professor Ritchie (as he freely acknowledged) had the advantage of knowing, before he examined the Condensers, that there had been a hydrofluoric acid attack, and when he looked at the Condensers he was looking for the etching which he expected to see there because he already knew the cause of the accident.  Even then Professor Ritchie missed what appears to be the most obvious etching on Exhibit R(i) and when asked why, responded:

                   "Quite honestly, when I looked at it I thought it was water vapour but undoubtedly it's there."

(See pp.700-701 of the transcript).

          Professor Ritchie gave evidence that one would not expect to see breaks of this type resulting from a hydrofluoric acid attack.

          It seems to me to be appropriate that I should rule at this stage on the respondents' allegation that Golden West was negligent in not noticing this etching and not making further enquiries as to the cause of the accident before continuing to use the Ajax Chemicals hydrochloric acid.  I shall deal later in these reasons with other allegations that Golden West's contributory negligence precludes recovery of damages or should reduce the quantum of such damages.

          In my opinion, Golden West was not negligent in its conduct following the first incident.  Without the benefit of hindsight, Golden West took what I consider to be reasonable steps to ascertain the cause of the breakage to the glass coils including contacting the manufacturer to enquire whether there was any history of similar incidents.  It was unfortunate that the etching was not noticed but I do not think that it was a failure to take reasonable care which led to it being missed.  Professor Ritchie impressed me as a methodical and careful scientist but even he missed a major area of etching for exactly the same reason as given by Mr Ryan.  [In fairness to Professor Ritchie, he was looking for (and found) etching exactly where he expected to find it, near two areas of glass strain].

          It should also be remembered that there were four or five other units (similar combinations of a Vessel and a Condenser) which continued to function satisfactorily using hydrochloric acid from the same source.

          In my view, Golden West exercised reasonable care for its own safety and was not contributorily negligent in continuing to use the Ajax Chemicals hydrochloric acid.

4.       The incident on 24 January 1990 ("The second incident")

          Mr Hodge gave evidence that on 24 January 1990 the refinery supervisor at Golden West called him out of his office to the wet area of the refinery because there was something abnormal happening in one of the Vessels.  Mr Hodge observed that the solution inside the Vessel was rising and falling over about a 75 mm level.  This was something that he had never seen before.  Before the steam could be turned off, the boiling solution bubbled up and overflowed out of the Vessel.  A similar clean-up and recovery process occurred as outlined above in respect of the first incident.  Mr Hodge then examined the Vessel and observed that there was a large hole (about 150 mm x 50 mm) and a number of smaller holes through the glass lining of the Vessel and also through its inner steel jacket under the glass.  These holes can be seen quite clearly in the photographs comprising Exhibits C(i) and (ii).

          Mr Hodge thought that the holes had been caused by some sort of chemical attack.  He then arranged for all the other Vessels to be pumped out and inspected.  It was found that most of the Vessels were etched and some had clear markings where the acid had eaten through the glass and part of the steel lining but had not penetrated the steel lining completely.  The Condensers were inspected and some of them were showing signs of etching also.  Samples of hydrochloric acid were taken from various drums of Ajax Chemicals' hydrochloric acid still on hand and sent for analysis.  The results of the analysis showed that the acid contained very high concentrations of hydrofluoric acid.

          I accept the evidence adduced by the applicant that as a result of the second incident six Vessels had to be replaced.  Four were replaced by new Vessels imported from the United Kingdom and two were replaced by used Vessels purchased within Australia.  I now turn to the matter of damage to the Condensers.  I accept the applicant's evidence that as a result of the first incident two Condensers had to be replaced and as a result of the second incident a further three Condensers had to be replaced, making a total of five Condensers which had to be replaced.

          The witnesses who gave evidence as to damages were either not cross-examined at all or not seriously cross-examined on the matter of quantum.  There was a suggestion put, somewhat faintly, that the gold prices upon which the gold losses were calculated were not fixed at arms length.  I am satisfied that the damages particularised in paragraph 16 of the statement of claim (which includes the gold losses) were in fact sustained.  It is not possible completely to allocate the various items between the two incidents of loss.

5.       The Source of the Problem

          Mr Alan Douglas Pestana, Golden West's refining supervisor, gave evidence that it was his job to arrange for the hydrochloric acid to be placed into the Vessels.  Mr Pestana swore that at the time of both the 11 January 1990 and 24 January 1990 incidents the hydrochloric acid being used was from blue drums bearing the labels of Ajax Chemicals.  Mr Pestana was not cross-examined on this evidence and I accept it.

          Furthermore, in its outline of submissions, Clyde Industries accepts that it supplied the relevant acid and that the acid contained hydrofluoric acid in levels varying from 100 ppm to 11,000 ppm.  A close examination of Exhibit O, being an analytical report from a firm called Rojan Advanced Ceramics (to which reference was made in the relevant part of that outline), shows that of the sixteen drums of Ajax Chemicals acid remaining at Golden West's premises after the second incident, twelve contained hydrofluoric acid in concentrations between 4100 and 4600 ppm, in one the concentration was 1900 ppm, another contained 1800 ppm and the two others contained 730 and 500 ppm respectively.  The drums of Ajax Chemicals acid analysed as having concentrations lower than 100 ppm were found at the premises of Daly Laboratories, as was the drum which contained 11,000 ppm.

             In its outline of submissions, Clyde Industries states that it did not manufacture the hydrochloric acid which it supplied.  Mr Hall, its former Sales Manager in Western Australia gave evidence that his enquiries after the second incident disclosed that this particular acid had been manufactured by and bought by his employer from a company called Pacific Chemical Industries Pty Ltd ("PCI").  The evidence was that PCI produces hydrochloric acid in the process of producing fluorocarbons with the result that the acid contains hydrofluoric acid.  This is to be contrasted, for present purposes, with the CSBP process which was identified as being a chlor-alkali process and (originally) a Mannheim process both of which produce hydrochloric acid containing no hydrofluoric acid.  Exhibit "CIL1", tendered on behalf of Clyde Industries, is a PCI Product Data Sheet which shows that a typical analysis of PCI's hydrochloric acid "Commercial Grade (F11/12 Acid)" contains hydrofluoric acid at
1000 ppm with a maximum of 1800 ppm while its "F22 Acid" on typical analysis contains 12,000 ppm hydrofluoric acid with a maximum of 20,000 ppm.  Both grades are for 32% hydrochloric acid which is the same percentage as in the Ajax Chemicals acid supplied to Golden West.  According to a letter dated 3 February 1993 from Clyde Industries' solicitors to the applicant's solicitors, [Exhibit "DL14"] the acid supplied by their client to Golden West was a "minute proportion" of some 743 tonnes of hydrochloric acid purchased in bulk from PCI by Clyde Industries which it then put into the 200 litre drums to which were affixed Ajax Chemicals labels.

          On the basis of all of the above evidence the conclusion seems inescapable (and I so find) that the losses caused by the damage to the applicant's equipment and the loss of gold on both occasions were caused by hydrochloric acid containing very high levels of hydrofluoric acid.  That acid had been produced by PCI and sold to Clyde Industries in bulk.  Clyde Industries packaged that bulk acid into the 200 litre drums which were sold to Daly Laboratories which in turn sold it to Golden West.

                      The Applicant's Claims Against Daly Laboratories

Section 52 of the Trade Practices Act

          Section 52 of the Trade Practices 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.

          Did Daly Laboratories engage in conduct that was misleading or deceptive or was likely to mislead or deceive?  To answer this question, it seems to me that a logical and useful starting point is to concentrate on exactly what that company did.  Daly Laboratories offered and supplied to Golden West Ajax Chemicals hydrochloric acid as a substitute for CSBP hydrochloric acid in December 1989 at a time when the CSBP acid was about to become temporarily unavailable.  The context of that offer is important.  The context was that on similar occasions, in February, April and May of the same year it had also offered and supplied to Golden West the substitute of the Ajax Chemicals hydrochloric acid and no problems had been encountered when that acid was used.  Daly Laboratories knew that Golden West used the acid in its gold refining business but I accept that it did not know the precise nature of the refining process.  In my view, in those circumstances to re-offer and to supply the Ajax Chemicals acid was to represent that that acid, which it proposed to supply, and did in fact supply, was a reasonable substitute, for use in the applicant's gold refining process, for the CSBP acid.  It will be remembered that the first order, for 12 drums, was satisfied by delivering 4 drums of CSBP acid and 8 drums of Ajax Chemicals acid and the second order, for 32 drums, was filled by delivering 8 drums of CSBP acid and 24 drums of Ajax Chemicals acid.  This conduct, in my opinion, buttresses the assessment that Daly Laboratories was representing Ajax Chemicals acid as a reasonable substitute for the applicant's purposes.  That representation carried with it the representation, as pleaded by the applicant, that the Ajax Chemicals acid which it was offering to supply and was supplying was suitable for use in the applicant's gold refining process.  Both parties knew that CSBP acid was suitable for use in that business.  When Ajax Chemicals acid was offered and supplied in February, April and
May of the same year it seems likely that similar implied representations were made.  On those occasions the representations were accurate and there was thus no misleading or deceptive conduct.  It is abundantly clear that the acid which Daly Laboratories offered to supply and did in fact supply in December 1989 and January 1990 was, in contrast with the earlier supplies, not a reasonable substitute for the CSBP acid.  It was totally unsuitable because it contained large amounts of hydrofluoric acid which is extremely corrosive.  This case was not conducted on the basis that the representation involved a prediction about future events, for example that the Ajax Chemicals acid when it was eventually delivered would be a reasonable substitute for the CSBP acid and that Daly Laboratories had reasonable grounds for making that representation.  Section 51A of the Trade Practices Act was not pleaded or relied upon.  That seems to me to have been quite appropriate in the circumstances.  The implied representation was a continuing one from the time when the offer of supply was made through to the time when the drums of acid were delivered to Golden West's refinery.  The supply itself and the continued representation constituted by such supply were parts of the relevant conduct.  In my opinion the first respondent's conduct was misleading and deceptive and thus in contravention of section 52.

          I do not think that the contravention depends upon the finding that Mr Banovich was told by Mr Spence, in February 1988, that there must not be any hydrofluoric acid in the hydrochloric acid which Daly Laboratories was then negotiating to supply to the applicant.  The essence of the representation as to suitability for use in the applicant's gold refining process was that, in summary, more of substantially the same acid would be and was being supplied.  The acid supplied clearly was not more of the same or even more of substantially the same.  It had approximately forty times the concentration of hydrofluoric acid as that shown as a typical analysis on the relevant Ajax Chemicals' technical data sheet.  In any event, should the finding as to what took place between Mr Spence and Mr Banovich be relevant, it has been made and it points in the same direction, so far as the outcome is concerned.

          Mr Banovich, and hence Daly Laboratories, did not know that the acid supplied to the applicant was so unsuitable and I have no doubt that he believed it to be as suitable as the earlier deliveries of the Ajax Chemicals acid.  This does not, in my opinion, prevent the conduct from being in contravention of section 52.  The circumstances cannot, in my view, be characterised as a situation where Daly Laboratories was passing on information for what it was worth, expressly or impliedly disclaiming any belief in its truth or falsity, a situation which was referred to, in  passing, in Yorke v. Lucas (1985) 158 CLR 661 at p.666.  Daly Laboratories knew that the alternative supplies had to be reasonably substitutable for the CSBP acid in Golden West's gold refining operations.  In making its implied representation to that effect there was no express or implied disclaimer.  In those circumstances it seems well settled that, as a matter of law, questions of the intention or belief of Daly Laboratories are not relevant to whether s.52 has been contravened: Hornsby Building Information Centre Pty Ltd v. Sydney Building Information Centre Ltd (1978) 140 CLR 216 at pp.228, 234; Parkdale Custom Built Furniture Pty Ltd v. Puxu Pty Ltd (1982) 149 CLR 191 at p.197; Yorke v. Lucas itself at p.666; and Global Sportsman Pty Ltd v. Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at p.88.

          I now turn to the question of whether there was a sufficient connection between the first respondent's contravention of section 52 and the losses sustained by the applicant.  The applicant submitted that portion of Mr Hodge's evidence showed that he relied upon Daly Laboratories to find an alternative source and supply Golden West with its needs for hydrochloric acid.  I have examined the relevant passages in the transcript (at page 49) and I note two matters.  First, the questions in the examination-in-chief of Mr Hodge were put in a somewhat leading form.  Secondly, it seems to me that there is some degree of ambiguity in the sense in which the word "rely" is used in those passages.  In cross-examination (at page 83) Mr Hodge said that he did not recall ever having any conversations with Mr Banovich other than to order technical grade hydrochloric acid.  Mr Barker then asked the following question and obtained the following answer:

                   "Yes.  And to make the point more explicitly, though, you weren't relying on him to make any technical judgments about the type of acid that your company required, just to fill the order as asked? --- Yes".

          In terms of causation, I have concluded that despite this answer there was a sufficient causative link between Daly Laboratories' misleading and deceptive conduct and the acquisition by Golden West of the contaminated acid and the loss which flowed from its use.  It seems very likely, and I have already found that Mr Hodge and Mr Banovich did not discuss the matter of hydrofluoric acid content when the December 1989 supplies were arranged.  The situation was one where Mr Banovich had informed Mr Hodge of the impending shortage of the regular CSBP acid and had once again suggested Ajax Chemicals acid to fill the gap.  Mr Hodge had to be consulted because the Ajax Chemicals acid was about 25% more expensive than the CSBP acid. 

          I find that although Mr Hodge was not relying on Mr Banovich to make any technical judgments about the type of acid which Golden West required, when Mr Hodge placed the orders he relied upon Mr Banovich's implied representation that the Ajax Chemicals acid was a reasonable substitute for the CSBP acid.  The technical judgment as to the type of acid which Golden West required had been made in 1988 - that it should be hydrochloric acid of the type manufactured by CSBP, because it was free of hydrofluoric acid.  I think it is also likely that the implied representation was the causa sine qua non of the purchases in the sense that but for Mr Banovich's suggestion which carried with it the implied representation, Mr Hodge would not have placed the orders on behalf of Golden West.  It is no longer necessary for an applicant under s.82(1) of the Trade Practices Act to satisfy the "but for" test; it is sufficient to show reliance: Wardley Australia Ltd v. Western Australia (1992) 175 CLR 514 at p.525; March v. Stramare (E. & M.H.) (1991) 171 CLR 506. 

          The next matter to be considered is whether, in the context of the claim based on s.52 of the Trade Practices Act, the chain of causation was broken by negligence on the part of Golden West.  The first respondent submitted that as Golden West was so careless in protecting its own interests I should hold that the representation complained of was not, in the circumstances, the real inducement to the use of the acid.  Reliance was placed on Argy v. Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112 at pp.136-138. 

          In respect of the situation prior to the first incident, the first respondent contended that Golden West should have obtained or requested technical data, information or specification sheets if it had been at all concerned about the chemical composition of the Ajax Chemicals hydrochloric acid.  Secondly, it was said that Golden West should have taken positive steps in its industrial procedures to test the acid thus ensuring it was free of hydrofluoric acid.

          Furthermore, it was submitted that after the first incident Golden West should have observed the etching on the condensers and its failure to do so should at least limit the liability of the first respondent under s.52 of the Trade Practices Act to the first loss only.

          The relevant authorities on the question whether an applicant's negligence has broken the chain of causation so as to negate a claim under s.52 are set out in the reasons for judgment of Hill J. in Argy's case at the pages referred to above.  I do not propose to rehearse them here.  In Argy's case a solicitor carried out a cursory perusal of a contract pursuant to which he and his wife purchased a property for some $3 million.  Had Mr Argy examined the contract with reasonable care, he would have learnt that there was no entitlement to develop the property in the manner in which he and his wife wished.  Hill J. held that Mr Argy was entitled to recover because the relevant representation still remained a cause of the loss.

          The question is one of fact depending upon all the circumstances of the particular case.  In my opinion the chain of causation was not broken by the failure
on the part of Golden West to take the precautions which the first respondent says it should have taken.  I am particularly influenced, in coming to that conclusion, by the fact that the context was one in which the Ajax hydrochloric acid supplied in February, April and May 1989 had been entirely satisfactory and no problems had arisen.  In my view the implied representation referred to above was a real inducement to Golden West's decision to order Ajax hydrochloric acid and still remained a cause of the loss.

Section 14 of the Sale of Goods Act 1895 (W.A.)

          Section 14 of the Sale of Goods Act provides as follows:

                         "Subject to the provisions of this Act, and of any Statute in that behalf, there is no implied warranty or condition as to the quality of fitness for any particular purpose of goods supplied under a contract of sale, except as follows:

                         (I.)  Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose: Provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose:"

It was common ground that it was in the course of Daly Laboratories' business to supply this acid.  In issue was whether the applicant had in fact made known to Daly Laboratories the particular purpose for which the acid was required so as to show that Golden West relied on Daly Laboratories' skill and judgment. 

          As Lord Morris of Borth-y-Gest observed in Henry Kendall & Sons v. William Lillico & Sons Ltd [1969] 2 AC 31 at p.93:

                         "The degree of precision or definition which makes a purpose a particular purpose depends entirely on the facts and circumstances of a purchase and sale transaction.  No need arises to define or limit the word `particular'."

          When Mr Hodge ordered the Ajax Chemicals hydrochloric acid in December 1989 he did not, in my opinion, descend to sufficient particularity to bring this case within s.14(I).  I have found that Mr Banovich was aware that the hydrochloric acid was used in a gold refining process but he was not made aware that the process involved placing the acid in glass vessels or otherwise exposing glass items to the acid in a gaseous form (as was the case in respect of the coils in the Condensers).  For the statutory condition to be implied, I think that on the facts of this matter there would have been required that extra degree of precision in the communicated purpose i.e. that the acid was for use in a process involving glass.  As Lord Reid stated in the same case at p.79:

                         "If the object of the disclosure of the particular purpose is, as I think it must be, to give to the seller an opportunity to exercise his skill or judgment in making or selecting appropriate goods, then it is difficult to see how a stated purpose can be a `particular' purpose if it is stated so widely that it would cover different qualities of goods, because carrying out the purpose in one way would only require a lower quality of goods whereas carrying it out in another way would require a higher quality."

          In my view, the above passage is particularly apposite since the evidence in this case (see for example Mr Ryan at p.407) shows that there was another process, the "Miller" process in which hydrochloric acid was used for refining gold.  In fact the Miller process is used by the Perth Mint in the latter part of its process of gold recovery.  The evidence was that, by and large, glass vessels are not used in the Miller process.  For that reason the presence of fluorine in the hydrochloric acid, as Mr
Ryan stated, was not a concern where the Miller process of gold refining was used.

          In my opinion, if Golden West wished to have the benefit of the condition implied under s.14(I) then it should have made known with greater particularity the particular purpose for which it was to be used.  The requirement of the section that the making known of the particular purpose is that it be "so as to show that the buyer relied upon the seller's skill or judgment."  That, in my view did not happen in this case, viewing the circumstances objectively.   

          I have not ignored the fact that, in February 1988, Mr Spence told Mr Banovich that the hydrochloric acid was not to contain any hydrofluoric acid.  I see that as not being relevant for two reasons.  First, the implied condition only arises if the particular purpose is made known.  It is one thing to stipulate that a product should not contain a particular component.  It is another thing to make known the particular purpose for which the goods are required.  Secondly, quite some time  had expired between February 1988 when the subject was discussed between Mr Spence and Mr Banovich prior to the commencement of supplies from CSBP via Daly Laboratories and the occasion of further supplies being obtained from Ajax Chemicals in December 1989.

          Furthermore there is Mr Hodge's evidence that when he placed the order he was not relying on Mr Banovich to make any technical judgments about the type of acid that Golden West required - I refer to the question and answer set out above at p.34.

          It might, at first glance, seem inconsistent to find that there was sufficient reliance on the part of Golden West on Mr Banovich's implied representation for the applicant to succeed under s.52 of the Trade Practices Act but not upon the claim based on s.14(I) of the Sale of Goods Act.  In my opinion there is no such inconsistency.  In terms of s.52, the misleading and deceptive conduct was an implied representation that the Ajax Chemicals acid was a reasonable substitute for the CSBP acid and by virtue of that fact Daly Laboratories would again supply hydrochloric acid which would be suitable for Golden West's gold refining purposes.  Although Mr Hodge was not relying on Mr Banovich to make any technical judgments about the type of acid which Golden West required, he was relying upon the implied representation that the Ajax Chemicals acid was a reasonable substitute for the CSBP acid and for that reason would be suitable for Golden West's gold refining process.  For liability to arise under s.52 of the Trade Practices Act it is sufficient that Daly Laboratories' conduct can be described as misleading or deceptive; it is not dependant upon a finding that the particular purpose for which Golden West required the acid was communicated to Daly Laboratories with sufficient precision.  The requirement for that degree of communication arises only in the context of s.14(I) of the Sale of Goods Act.  Accordingly, in so far as the applicant's claim is based upon s.14(I) of the Sale of Goods Act, I would dismiss it.

The claim based upon section 13 of the Sale of Goods Act

          Section 13 of the Sale of Goods Act is in the following terms:

                                 "13.          Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description; and if the sale be by sample, as well
as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description."

          The first respondent accepted that in this case there was a sale by description.  The case was fought on the basis that the relevant description was "technical grade hydrochloric acid". 

          Golden West's counsel made a very late application to amend its statement of claim by adding the words "Ajax Chemicals" to the description pleaded so that it would read "Ajax Chemicals technical grade hydrochloric acid".  By very late I mean at the end of his closing address some ten minutes before the hearing came to an end.  That application to amend was not opposed by counsel for Daly Laboratories, however, this was on the basis that if the amendment were allowed it would wish to make a similar amendment to its cross-claim against the second respondent.  The second respondent opposed the application to amend and I dismissed it because the applicant had already been granted leave to re-amend during the trial on several previous occasions (including some five hearing days previously, to plead the s.13 point) and the second respondent had conducted its case on the basis of the description relied upon by the applicant being "technical grade hydrochloric acid". 

          The applicant's purchase orders referred simply to "hydrochloric acid" without further qualification.  Although the first respondent, in its defence denies that the sale was by the description "technical grade hydrochloric acid", its submissions were based on the acid having complied with that description.  As I have come to the conclusion that, on the evidence, the acid supplied by Daly Laboratories did comply with the description "technical grade hydrochloric acid" and that description would have been the most favourable to the applicant, I do not consider it is necessary to decide whether the description under which the goods were sold was the even more general description of "hydrochloric acid" as appeared on the purchase orders.  The question is whether the degree of contamination with hydrofluoric acid prevented the acid from conforming with the description "technical grade hydrochloric acid"?

          In my opinion, on the evidence adduced at the trial of this matter, the answer to that question is - no.  I refer to the evidence of Professor Ritchie to the effect that technical grade hydrochloric acid is a grade of acid at the bottom of the range and for that reason its composition is variable.  Professor Ritchie's evidence was that an impurity of 4,000 parts per million in such acid meant that the hydrochloric acid was 98-99% pure and that a lot of technical grades of acid were good within 97-99%.  The evidence of Mr Brownfield, the Western Australia State Manager for Ajax Chemicals was that technical grade acid has a very, very wide specification. Technical grade hydrochloric acid, he said, had an enormous range of uses.  Mr Hall was at the relevant time a sales representative for Ajax Chemicals in Western Australia.  Mr Hall's evidence was that technical grade hydrochloric acid was just a basic acid with about 32% strength - ranging between 30% and 32%.  The range of impurities in technical grade hydrochloric acid was quite wide and there was a number of impurities compared with the next grade above it which was known as "Chemically Pure".  Mr Hall said that one could obtain a certificate of analysis of "Chemically Pure" hydrochloric acid giving a complete breakdown of impurities within that material.  Technical grade hydrochloric acid sold for about $100 per drum whereas "Chemically Pure" grade sold for between $360-$400 per drum.

          I accept this evidence and the other evidence which was to like effect.  In my view the acid supplied to Golden West was technical grade hydrochloric acid and, accordingly, the claim based upon s.13 of the Sale of Goods Act must fail. 

Negligence

          The first respondent denies that it owed a duty to Golden West to exercise reasonable care in connection with the selection and supply of the acid.  That was the way in which the applicant pleaded the duty of care.  That formulation tends to obscure the difference between the existence of a duty to take reasonable care and whether that standard has been achieved. 

          In my view the first question is whether Daly Laboratories owed Golden West a duty to take reasonable care.  I think it was reasonably foreseeable, in the sense of there being a real risk of physical damage to property arising out of acts or omissions on the part of a supplier of hydrochloric acid, being a reasonable supplier, for the first requirement of the existence of a duty of care to have been satisfied here.  Secondly, there was what I consider to be a sufficiently close ongoing relationship between the parties to constitute the requisite degree of proximity between them.  The relationship of supplier and customer had started in early 1988 and I have described earlier how the volumes of hydrochloric acid supplied by Daly Laboratories to Golden West gradually built up.  Daly Laboratories' business was to manufacture, blend and supply chemicals including (in the case of supply) chemicals manufactured by others.  In the latter regard it was a dealer in chemicals.  Mr Banovich visited the secure area of Golden West's refinery to give some advice about removal of some stains.  I shall put the purpose (as distinct from fact) of that visit to one side so far as the existence of the duty of care being considered here is concerned.  Similarly, it must be borne in mind that Mr Banovich did not see that the acid was being used in and with glass and never knew of such use.  However, the fact of this visit tends to lend emphasis to the proximity of the relationship.  This was not a "one-off" purchase.  Mr Banovich knew that his company was supplying hydrochloric acid for use by Golden West in large quantities in a gold-refining process.  The relationship of supplier and customer had been built up over a period of some twenty-one months.  Some of these factors are also relevant to the question of foreseeability but, in my view, they also give rise to sufficient proximity for a duty of care to have existed: Jaensch v. Coffey (1984) 155 CLR 549; San Sebastian Pty Ltd v. The Minister (1986) 162 CLR 340.  Put slightly differently, in my opinion, there existed between Daly Laboratories and Golden West a sufficient relationship of proximity such that a reasonable person in Daly Laboratories' position would have foreseen that carelessness on its part might be likely to cause damage to Golden West: Wyong Shire Council v. Shirt (1980) 146 CLR 40 at p.44 per Mason J.  

          The breach of that duty was pleaded by Golden West in identical terms in respect of both respondents and I have set out those particulars at pp.11-12 of these reasons.

          In terms of breach of the duty the first question of fact is whether, descending from the more generalised enquiry to the more particular, a reasonable person in the position of Daly Laboratories would have foreseen that its conduct involved a risk of injury to Golden West or a class of persons including Golden West: Wyong Shire Council v. Shirt (1980) 146 CLR 40 at p.47.  In my view the answer to that question is - yes.  If the wrong sort of acid or an acid with very pronounced corrosiveness was supplied there was clearly a real risk of injury or damage to property.

          The next question is whether Daly Laboratories did what a reasonable person would do by way of response to this risk, in all the circumstances?  The circumstances must include the fact that this was a situation in which shortages were about to occur so far as CSBP as the normal source of supplies of hydrochloric acid was concerned.

          Daly Laboratories' role was to find an alternative source of supplies of acid during the currency of the CSBP shortage.  No supplies were available locally and both parties were aware that supplies would have to be obtained from interstate at significant extra cost.  The supplies were required quickly, in fact so quickly that portion of the deliveries was diverted so that instead of being delivered by Ajax Chemicals to Daly Laboratories, it was diverted in transit to be delivered direct to Golden West.

          The situation was one in which supply of this alternative acid was at cost. I infer that the cost of any tests of the acid for fluorine content, whether or not requested by Golden West, would have been on-charged to Golden West.

          As to the complaints based on a failure to warn Golden West that the acid contained hydrofluoric acid in excess of 100 parts per million, the truth of the matter was that Daly Laboratories did not know this and had no reason to expect that this would be the case.  The same applies to the complaint about failure to label with an accurate statement and to warn the applicant to test for fluorine before using the acid. 

          Another most relevant factor, in my opinion, is that the Ajax Chemicals acid had proved reliable on three previous occasions earlier that year.

          All in all, in my view Daly Laboratories was not negligent.  In these rather unusual circumstances, I consider that Daly Laboratories' duty of reasonable care owed to Golden West required it only to select a reputable supplier of technical grade hydrochloric acid.  Very recent experience had shown that Ajax Chemicals was such a supplier and there is no evidence that it was other than a reputable supplier.  The evidence was that Ajax Chemicals was recognised as an appropriate source of hydrochloric acid.  It was the preferred supplier of such acid to the gold refinery at which Mr Hodge formerly worked in Victoria.

          In so far as the applicant's claim against the first respondent is based on negligence, I would dismiss it because Daly Laboratories did not breach its duty of care to the applicant.  In those circumstances it is not necessary to consider its allegations that Golden West was contributorily negligent. 

                  The Applicant's Claims Against the Second Respondent

The claim under s.52 of the Trade Practices Act

          Golden West complains that Clyde Industries engaged in conduct which was misleading and deceptive by representing to Daly Laboratories that the hydrochloric acid contained fluorine of a maximum of 100 parts per million.  It further complains that by the labelling on the drums of acid, Clyde Industries represented in trade and commerce that each such drum contained 32% hydrochloric acid but failed to disclose the presence of any level of fluorine and thereby represented that each drum did not contain any significant level of fluorine.  It was submitted that it was misleading conduct on Clyde Industries' part to supply acid which contained 4000 ppm hydrofluoric acid without providing any warning.

          In assessing whether the second respondent's conduct was misleading or deceptive, I think it is useful to refer to some pieces of evidence from its own staff.  Mr Hall was formerly Sales Manager of Ajax Chemicals in Western Australia but was still a sales representative at the relevant time.  Mr Hall said that he did not think that Ajax would have despatched a batch of acid knowing that the fluorine content was 40 times higher than that specified in its technical data sheet.  He said that it was obviously an accident.  If he had known that the acid contained 4000 ppm hydrofluoric acid "... it would not even have left the factory" and he was sure that "Sydney" would not have despatched it.  He would have been astounded to learn that the acid contained 4000 ppm fluorine.  He would not have expected Ajax technical grade hydrochloric acid to have that level of fluorine in it.  If he had found out that this batch of hydrochloric acid contained over 4000 ppm hydrofluoric acid he "would
have put the material on hold, not released it to the customer and contacted Sydney head office via a complaint form which was normal procedure".

          Mr Brownfield, State Manager for Ajax Chemicals in Western Australia gave evidence that technical grade hydrochloric acid containing fluorine to a level of 11,000 ppm would be used for cleaning cement residue from bricks and in sewerage treatment.  He confirmed that Ajax Chemicals acid mostly did not have any fluorine in it but occasionally would if it were sourced from PCI.  Typically, Ajax technical grade hydrochloric acid in December 1989 had either no fluorine in it or if it did have fluorine content it would be 100 parts per million or very close to that figure.  Even two or three hundred parts per million fluorine would not be typical.

          In my opinion, the conduct of the second respondent in labelling and supplying the drums of acid involved in this matter as Ajax technical grade hydrochloric acid without any warning that it contained such high levels of hydrofluoric acid was misleading and deceptive conduct.  The labels on the drums contained a catalogue number (2223).  Ajax Chemicals' technical data sheet for the hydrochloric acid corresponding to catalogue number 2223 showed a typical analysis of fluorine of 100 parts per million.  The acid which it supplied, and which caused the loss in this matter, had a concentration of fluorine forty times this strength.  Again the context is important.  The context was that Ajax had supplied its technical grade hydrochloric acid in February, March and April 1989 with little or no hydrofluoric acid in it.  It will be remembered that the evidence was that the acid which was delivered in December 1989 and January 1990 originated from a different manufacturer using a fluorocarbon process.  The acid originated from a consignment of 743 tonnes purchased during 1989 from PCI whereas the evidence strongly suggests (and I so infer) that the earlier supplies had been manufactured by ICI.  The second respondent did not carry out any chemical analysis of the consignment from PCI.  In fact, the evidence is that the second respondent never carried out chemical analyses of its purchases of bulk acid.  Nevertheless it was not suggested or pleaded that the second respondent was unaware that hydrochloric acid from PCI would contain significant levels of hydrofluoric acid.

          The second respondent claimed that the information contained on its label was correct in that the acid was technical grade hydrochloric acid.  The problem with that submission is that the label contained only a half truth.  It may well have been technical grade hydrochloric acid but it was very different to the technical grade hydrochloric acid which had been supplied under that label earlier in 1989.  In my view, to supply and label that product in exactly the same manner when it contained such a corrosive constituent was misleading and deceptive conduct.

          In my opinion by causing or allowing these drums of hydrochloric acid, so labelled, to be delivered to Golden West's refinery, Clyde Industries was making a misrepresentation that the acid was no different to the acid which had been supplied in February, April and May.  The second respondent submitted that the applicant's case was based upon a representation by silence that each drum did not contain any significant level of hydrofluoric acid.  Mr Hancy, for the applicant, submitted that this was not simply a case of silence; it was a case of sending out material as if it were Ajax technical grade acid which was normally fluorine-free and, which if it ever had fluorine in it on typical analysis was 100 ppm, to an unsuspecting public not merely with some fluorine in it but with fluorine 40 times that typical analysis.  Mr McCormack, for Clyde Industries, submitted that the relationship between Clyde Industries and Golden West was not such as to impose a legal obligation on Clyde Industries to divulge the fact that the acid had hydrofluoric acid in it.  He submitted further that s.4(2) of the Trade Practices Act does not apply to the applicant's omission to refer to the hydrofluoric acid because that omission was not deliberate i.e. not otherwise than inadvertent, to use the words of s.4(2).  Finally, Mr McCormack submitted that if there were an obligation to disclose the presence of hydrofluoric acid, failure to do so was not actionable because Clyde Industries had no knowledge which would give rise to a reasonable expectation of disclosure and hence there was no misleading or deceptive conduct.  For all these propositions Mr McCormack relied to some extent upon Demagogue Pty Ltd v. Ramensky (1992) 39 FCR 31.  In my view that reliance is misplaced.  The principal judgment in that case was that of Gummow J. with whom Black CJ and Cooper J. agreed.  Referring to the vendor's failure to disclose certain unusual features relating to access to the land in that matter, Black CJ (at p.32) said this:

                         "Silence is to be assessed as a circumstance like any other.  To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive.  To speak of `mere silence' or of a duty of disclosure can divert attention from that primary question.  Although `mere silence' is a convenient way of describing some fact situations, there is in truth no such thing as `mere silence' because the significance of silence always falls to be considered in the context in which it occurs.  That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed."

          Gummow J. referred to the expanded meaning given by s.4(2) to the word "conduct" at p.40:

                         "`Conduct' within the meaning of s.52 includes refusing to do an act and refusal to do an act includes a reference to `refraining' (otherwise than inadvertently) from doing that act: s.4(2).  But in any case where a failure to speak is relied upon the question must be whether in the particular circumstances the silence constitutes or is part of misleading or deceptive conduct. The expanded meaning given by s.4(2) to `conduct' should not distract attention from the fundamental issue in the case at hand."

At the same page Gummow J. makes clear his disapproval, when applying s.52 of the Trade Practices Act, of an enquiry whether an independent duty to disclose has arisen in the particular circumstances.  His Honour specifically agreed with what was said by Samuels JA in Commonwealth Bank of Australia v. Mehta (1991) 23 NSWLR 84 at p.88:

                         "[S]ilence is not misleading only where there is a duty to disclose at common law or in equity.  It may simply be the element in all the circumstances of a case which renders the conduct in question misleading or deceptive."

          The fact that hydrochloric acid with such a high hydrofluoric acid content was usually used for a limited number of purposes of a robust nature such as pickling metals, cleaning bricks and treating sewerage together with the drastic consequences which might flow from using it in the normal run of purposes has assisted me to conclude that in the circumstances of this matter Clyde Industries engaged in misleading or deceptive conduct in connection with the supply of this acid.  To supply acid contaminated to such a high degree with such a corrosive substance with no warning in drums labelled in the same manner as the drums of acid supplied earlier in 1989 which did not have this contamination was, in my view, to engage in misleading or deceptive conduct.

          The second respondent submitted that Golden West had not proved that it relied upon the second respondent's conduct.  It was said that there was no relevant nexus between the conduct complained of and the loss or damage suffered.  It seems to me to be convenient to consider this submission at the same time as the submission that the failure of Golden West to take reasonable care of its own interests severed the chain of causation between the second respondent's conduct and the loss sustained by Golden West.

          The second respondent submitted a long list of such matters.  The first was a disclaimer on the Ajax Chemicals Technical Data Sheet.  The disclaimer was in extremely small print and read as follows:

                                 "Disclaimer

                                 The information given below is not necessarily exhaustive and further technical information may be obtained upon request from the company's technical staff.  All advice and information given in this data sheet and by the company's technical staff is compiled from the best information currently available to the company: but the company accepts no responsibility whatsoever for its accuracy or for any results which may be obtained by customers.  Any customer who relies upon any advice or information given in this data sheet by the company or by its technical staff does so entirely at its own risk, and the company will not be liable for any loss or damage thereby suffered notwithstanding any want of care on the part of the company or its staff in compiling or giving the advice or information.  In all cases the customer should satisfy himself by preliminary tests that the goods are suitable for customer's purpose."

[The above is in slightly larger print than on the relevant technical data sheet.]

          Mr McCormack, counsel for the second respondent, did not suggest that this disclaimer clause would prevent the application of s.52.  There is too much authority to the opposite effect for such a submission to have any prospect of success.  Rather it was suggested that because Mr Hodge had said that he was aware of Ajax Chemicals' technical data sheet when he was working for another gold refiner in Victoria in 1984 or 1985 he should have recalled the disclaimer and tested the acid.  The evidence as to whether Mr Hodge had read the disclaimer in 1984 is, in my opinion, not at all satisfactory (see p.183 of the transcript).  I am not prepared to infer on the basis of that evidence that Mr Hodge was aware of the disclaimer in December 1989 or January 1990, nor that it was reasonable to expect him to remember such a disclaimer.  The second respondent also placed some reliance on portions of the cross-examination of Mr Ryan for the submission that Golden West should have "acted on" the disclaimer.  I have re-read the relevant passages in the transcript and I do not consider that the submission is justified.  Clyde Industries did not send its Technical Data Sheet to Golden West until after the second incident.  I have dealt earlier in these reasons with the submission that in not calling for that sheet before using the acid Golden West was contributorily negligent to the extent that a break occurred in the chain of causation.  I rejected that submission and for the same reason I have come to the conclusion that, in the circumstances, there was no such contributory negligence in that regard on the part of Golden West.

          Next it was said that the applicant should have stipulated, and ensured that any such stipulation was in fact carried out, that at all times supplies of hydrochloric acid which it used should have no or no detectable hydrofluoric acid.  This was, so it was said, imperative when the variables involved in the process used by Golden West were taken into account such as concentration of hydrofluoric acid, temperature increase, weak spots in the glass, cumulative attack and prior use of the Vessels and Condensers.  This was particularly so in view of the manufacturer's literature relating to the glass Vessels and Condensers and their susceptibility to hydrofluoric acid.  It was said that although Golden West may have issued the instructions (that the acid was not to contain hydrofluoric acid) through Mr Spence to Mr Banovich, the applicant took no steps whatsoever to ensure such instructions had been carried out notwithstanding change of personnel.  In my view, the short answer to this submission is that the applicant had been lulled into a false sense of security by its experiences on the three previous occasions when it had used Ajax Chemicals hydrochloric acid without any adverse effects.  Until December 1989 Golden West's system had worked very well.  It was only when such a different sub-category of technical grade hydrochloric acid was substituted that the problems arose.  A similar response applies to the submission that if Golden West did not have and would not introduce appropriate quality controls it should have purchased a higher grade of hydrochloric acid such as "Chemically Pure" or "Reagent" grades.

          Next the second respondent says that the applicant did not request any information from it as to the particular impurities in the hydrochloric acid.  There is graphic evidence as to what would have happened if it had made such an enquiry.  When, after the second incident, such an enquiry was made, the second respondent provided its technical data sheet which showed a concentration of only 100 ppm fluorine.  On the basis of the evidence both of Mr Ryan and Mr Hodge I infer that in those circumstances the applicant would still have proceeded to use the acid in question.  Mr McCormack suggested that to use hydrochloric acid containing 100 ppm hydrofluoric acid would itself be negligence.  I accept Mr Ryan's evidence that for short periods in what is essentially a non-continuing use hydrochloric acid containing 100 ppm would not have resulted in this loss occurring.

          In examination-in-chief, Professor Ritchie gave evidence to the effect that a user of the Glasteel Vessels or Crown Corning Condensers such as Golden West should avoid hydrofluoric acid at all costs.  In cross-examination he acknowledged, at least in relation to the Vessels, that using hydrochloric acid containing fluorine to the tune of 100 ppm was not totally inconsistent with the specifications of the Glasteel manufacturer.

          Mr Ryan had considerable practical experience and I was impressed by his evidence of what could or could not be done in the industrial context of refining gold.  Professor Ritchie's experience was to a large extent (not unexpectedly) academic although he had had some experience in industry.

          My assessment of the evidence is that it would not have been negligent for Golden West to have used, on a temporary basis, alternative supplies of Ajax Chemicals hydrochloric acid containing 100 ppm hydrofluoric acid when CSBP acid was unavailable. 

          Other allegations made by the second respondent in support of its contention that Golden West was so negligent as to break the chain of causation were to the effect that:

          .  Golden West should have provided a written specification showing that it required hydrochloric acid which did not contain hydrofluoric acid.

          .  Golden West should have tested each batch of hydrochloric acid before use and there was some evidence to suggest that such testing measures were relatively inexpensive.

          .  Relatively simple measures such (for example) as installing better equipment to confine spillage should have been employed.

          I have considered all of the submissions put forward on behalf of the second respondent that the chain of causation was thus broken.  My conclusion is that there was not relevant contributory negligence.  Even if Golden West had asked the second respondent what was in its acid the misleading and deceptive conduct would have been continued.  The most effective prevention would have been for Golden West to have tested either each drum or each batch of drums and its failure to do so might, in one sense, be regarded as a cause of the loss which was sustained.  [That is not to say that such failure amounted to contributory negligence.]

          Nevertheless, in my opinion that does not prevent Clyde Industries' conduct (which I have summarised above) as continuing to be a cause for the purposes of ss.52 and 82(1) of the Trade Practices Act.  Referring to the use of the word "by" in s.82(1) there is this passage in the reasons for judgment of Mason CJ, Dawson, Gaudron and McHugh J. in Wardley Australia Ltd v. Western Australia (1992) 175 CLR 514 at p.525:

                         "But the word clearly expresses the notion of causation without defining or elucidating it.  In this situation, s.82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v. Stramare (E. & M.H. Pty Ltd) ..."

          In March v. Stramare the High Court rejected the "but for" or causa sine qua non test as a definitive test of causation and found (albeit on apportionment) that the defendant's negligence was a cause of an accident even though the plaintiff was driving under the influence of alcohol, at an excessive speed and failing to keep a proper lookout.

          In my view on the facts of the present matter the chain of causation between the misleading and deceptive conduct of Clyde Industries and the loss sustained by Golden West was not broken by the fact that the latter did not test the acid for the presence of hydrofluoric acid or take the other steps which the second respondent says it should have taken.  In my opinion Golden West's loss was suffered by conduct of the second respondent that was done in contravention of s.52 of the Act and accordingly it is entitled to recover damages under s.82 of the Act.

The applicant's claim against the second respondent in negligence

          Although there was a formal plea in the second respondent's defence that it did not owe any duty of care to the applicant, it has long been accepted that a manufacturer owes a duty to the end purchaser of its product to take reasonable care.  In any event, applying the same tests as referred to in respect of the negligence claim against the first respondent, there was both reasonable foreseeability and sufficient proximity to bring that duty of care into existence. 

          I have listed earlier in these reasons (at pp.11-12) the matters in respect of which the applicant claims that Clyde Industries was negligent.  First, (and this is not disputed) that Clyde Industries failed to analyse this batch of 743 tonnes of CPI acid and thereby failed to take any or any adequate steps to test or verify the level of fluorine in the acid before it was supplied to Golden West.  Clyde Industries knew that the acid had been produced by a fluorocarbon process.  I infer that it must have known that PCI's hydrochloric acid could contain hydrofluoric acid in concentrations ranging from 1000 ppm through to 1800 and even up to a range of between 12,000 ppm to 20,000 ppm depending upon which of PCI's commercial grades of hydrochloric acid was being supplied.  Exhibit CIL1, tendered by the second respondent was a product data sheet which contained that information and there was no evidence led by the second respondent to the effect that it was in any way surprised by this analysis.

          The failure on the second respondent's part to test the PCI bulk acid was at a time when the second respondent's technical data sheet for its hydrochloric acid listed the fluorine content as 100 ppm.

          The evidence was that the use to which hydrochloric acid containing such high concentrations of fluorine [being the concentrations referred to at the top of this page] could be put was limited to such robust matters as pickling metals, cleaning bricks and treating sewerage. 

          There was abundant evidence of the corrosive nature of hydrofluoric acid.  I refer also to the evidence, set out above, summarising the astonishment of the second respondent's employees when they found out how much hydrofluoric acid was contained in the hydrochloric acid which their company had supplied to Golden West.  The evidence was that technical grade hydrochloric acid is the most commonly used acid in industrial processes and was reasonably commonly used in glass.

          In the light of all those circumstances I consider that it was a breach of its duty to take reasonable care for Clyde Industries not to test the bulk acid for fluorine content and not to label the drums appropriately.  By appropriately, I mean in such a way as to identify it as a type of technical grade hydrochloric acid which had a very high fluorine content and which by reason of that fact was likely to be all the more corrosive to substances including glass and thus suitable for a fairly limited range of purposes compared to the wide range of uses to which hydrochloric acid can be put.

          By failing to take these steps I consider that Clyde Industries was negligent and that such negligence was the cause of the applicant's losses.

Whether Golden West was contributorily negligent

          Section 4(1) of the Contribution Act relevantly provides:

                         "4.  (1)  Whenever in any claim for damages founded on an allegation of negligence the Court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant's act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the Court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the Court thinks just in accordance with the degree of negligence attributable to the plaintiff ..."

          It should be noted that the language of the Western Australian provision differs from its counterparts elsewhere in Australia.  According to the commentary in the Australian Torts Law Reporter [paragraph 52-120], in Western Australia a claimant's damages are to be reduced in accordance with the degree to which "the happening of the event which caused the damage" was due to the claimant's negligence.  Elsewhere the relevant matter is the extent to which the claimant's negligence contributes to the damages.  The difference may be only in language rather than effect when the decision in Motor Vehicle Insurance Trust v. Wilson [1976] WAR 175 is taken into account.  In that case the Full Court of the Supreme Court of Western Australia unanimously held that the "event" in s.4 of the Contribution Act was the injury not the accident which caused the injury.

          In my opinion the approach to be taken to the matter of whether there should be apportionment of liability and the making of the apportionment is that described by the High Court of Australia in Podrebersek v. Australian Iron and Steel Pty Ltd [1985] 59 ALJR 492 at p.494 in the following terms:

                         "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris (1956) 96 C.L.R. 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd [1953] A.C. 663 at 682; Smith v. McIntyre [1958] Tas.S.R. 36 at 42-49 and Broadhurst v. Millman [1976] V.R. 208 at 219 and cases there cited.  It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.  The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

          I have examined above most of the charges of contributory negligence which have been made against the applicant.  That examination was made in considering whether there had been a break in the chain of causation for the purposes of the application of s.52 of the Trade Practices Act.  I was not prepared, in that context, to
characterise the applicant's acts or omissions as amounting to contributory negligence and for the same reasons I decline to do so in the context of the tort of negligence.  There remain two complaints of contributory negligence which I have not considered. 

          The first is the question of whether Golden West should have tested each drum or batches of drums.  In the circumstances of having had fluorine free acid from CSBP followed by three consecutive substitute batches from Ajax Chemicals none of which contained problem quantities of fluorine, I do not think it would be reasonable to expect it to carry out the tests suggested by the respondents.  The evidence as to the cost of such tests was somewhat scant and variable but in absolute terms the costs do not seem particularly high.  Nevertheless, there was evidence from Mr Ryan that even such apparently small costs were very significant in terms of Golden West being competitive in the pricing of its services.  It was not unreasonable, in my opinion, for Golden West to tackle the matter at its source by ensuring that its principal source of supply was via a process whereby there would be no hydrofluoric acid in the hydrochloric acid and to rely on its supplier to arrange a substitute when acid from the principal source was in short supply.

          Secondly, there is the matter of the complaints made about the precautions adopted within the wet area of the refinery to prevent gold loss.  These included complaints that there should have been an adequate overflow system and safety and warning systems to bring the refining process to a stop when problems such as these arose.  I think that the most telling piece of evidence in favour of rejecting this allegation of contributory negligence is the fact that 97% of the spilled gold was recovered.  Precautions which achieved a 97% protection level so far as gold loss was concerned are not precautions which I would characterise as being contributorily negligent. 

          In so far as it is alleged that after the first incident the applicant's conduct amounted to contributory negligence I have dealt with this matter at pp.22-26 of these reasons and found that Golden West was not negligent in its conduct following the first incident.

          In my view, the conduct of Golden West (whether before or after the first incident) did not depart from the standard of care of a reasonable person conducting its type of business, to the degree which could be regarded in all the circumstances as contributorily negligent and thus require an apportionment of liability and damages.

                         Conclusions Concerning the Applicant's Claims

          In summary, I have found that the applicant is entitled to recover its damages arising out of both incidents from the first respondent under ss.52 and 82 of the Trade Practices Act and against the second respondent under those provisions and also by virtue of the second respondent's negligence.

          As mentioned earlier, quantum of damages was not seriously in dispute at the hearing.  I assess the applicant's damages at $146,601.33.

          The applicant claims interest on the damages which it sustained.  Mr Ryan
gave some evidence on the matter of interest rates but it provides little assistance being both very brief and very general.  In terms of s.51A of the Federal Court of Australia Act, no good cause has so far been "shown to the contrary" why there should not be an award of interest.  The first question is for what period should interest be allowed?  The causes of action arose in January 1990 but proceedings were not commenced until nearly two and a half years later.  It was not until nearly two years later still that the matter came to a hearing.  No explanation was tendered for these circumstances.  It may be that there is no unfairness in the interest being calculated from January 1990.  Some of the authorities on this point are reviewed in the Australian Torts Reporter paragraph 54-900.  I consider that it is appropriate that the parties should have the opportunity to file short written submissions on the matter of interest.  Subject to those submissions, I consider that the appropriate rates of interest should be the rates which have been fixed from time to time under Order 35 rule 8 of the Federal Court Rules in respect of judgment debts.  It may be that the parties will be able to reach agreement on this matter in which case a consent order could be filed.

                                               The Cross-Claims

          There remains the question of the cross-claims as between the two respondents.

          In so far as Daly Laboratories' cross-claim against Clyde Industries is based on an implied condition that the acid would correspond with the description "technical grade hydrochloric acid" I have held that it did comply with that description.  I now turn to the question whether the acid was of merchantable quality within the meaning
of s.14(II) of the Sale of Goods Act.  That sub-section is in the following terms: 

                         "14. (II.)  Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality: Provided that if the buyer has examined the goods there shall be no implied condition as regards defects which such examination ought to have revealed:"

The evidence was that the acid which was supplied to the applicant, even with such a concentration of hydrofluoric acid, could be used for various purposes including for example, pickling metallic surfaces, cleaning bricks and sewerage treatment.  In Australian Knitting Mills Ltd v. Grant (1933) 50 CLR 387, at p.413 Dixon J. said:

                         "The condition that goods are of merchantable quality requires that they should be in such an actual state that a buyer fully acquainted with the facts and, therefore, knowing what hidden defects exist and not being limited to their apparent condition would buy them without abatement of the price obtainable for such goods if in reasonable sound order and condition and without special terms."

          Lord Reid in Henry Kendall & Sons v. William Lillico & Sons Ltd at p.79 qualified this observation by substituting the words "some buyers" for "a buyer".

          In my view, the evidence in this matter shows that the acid was of merchantable quality as technical grade hydrochloric acid for the purposes for which some but not all buyers would require such acid.  Thus it was of merchantable quality and the claim based on s.14(II) of the Sale of Goods Act must also fail.

          In so far as Daly Laboratories' cross-claim is based on an implied condition of fitness for suitable purpose (use in Golden West's gold refining process) I would dismiss that cross-claim essentially for the same reasons that I dismissed that portion of the applicant's claim against Daly Laboratories.  In my view Daly Laboratories did not make known to Clyde Industries the purpose for which the acid was required with sufficient particularity for s.14(I) of the Sale of Goods Act to imply a condition of reasonable fitness.

          The next part of Daly Laboratories' cross-claim is based upon the alleged negligence of Clyde Industries and breach of an implied contractual term to take reasonable precautions.

          Comparatively little time was occupied at the trial and in submissions with the question of the respective duties owed as between the two respondents and the matter of any implied contractual term to take reasonable precautions.

          In my view, there existed a duty under the common law of negligence on the part of Clyde Industries to take reasonable care in the supply of this hydrochloric acid to Daly Laboratories.  The content and incidents of the implied contractual term pleaded by Daly Laboratories were identical to the duty of care which it pleaded.  In those circumstances, I can see no rational basis for implying such a term into the contract between these two parties: Hawkins v. Clayton (1988) 164 CLR 539 at p.583.  I hold that there was no such implied contractual term.

          For the same reasons which I have outlined in respect of the applicant's claim against the second respondent I consider that the second respondent breached its duty of care to the first respondent.  The particular breaches of duty were those particularised in sub-paragraphs 10(b) (c) (d) (e) (f) and (g) of the first respondent's cross-claim.  In terms of causation, I have no doubt that but for this negligence on the part of the second respondent the first respondent would not have been caused to contravene s.52 of the Trade Practices Act, the applicant would not have suffered any loss and the first respondent would not have become liable in damages to the applicant.

          I deal below with the question of contributory negligence and the application of ss.4 and 7 of the Contribution Act.

          The second respondent's cross-claim for complete contribution from Daly Laboratories is based on negligence, breach of an implied contractual term to take reasonable precautions and also under s.7 of the Contribution Act.

          The second respondent's cross-claim in negligence is that, in essence, because of the first respondent's knowledge of the applicant's business it owed a duty of care to someone who the second respondent described in its cross-claim as "the first respondent" (but which is obviously a reference to the second respondent) to take all reasonable precautions to ensure that the acid was suitable for the purposes or uses to which it would be put by the applicant at the applicant's premises.  The basis upon which this duty of care arose was not developed in argument or in written submissions.  Given the respective roles of the second respondent as supplier and the first respondent as acquirer I can see no basis upon which such a duty of care arose on the part of Daly Laboratories towards Clyde Industries.  Nor do I consider that a term to like effect would be implied into the contract made between those parties to give business efficacy to it.

          Neither respondent pleaded that there should be contribution based on equity.  The situation here is that the two respondent companies have been found to have contravened s.52 of the Act and each are liable to the applicant for the one amount of damages.  The second respondent has been found to be liable to the applicant for negligence but no such liability has been established against the first respondent.  As between the respondents, the first respondent's cross-claim against the second respondent in negligence has been successful (subject to the question of any contributory negligence on the first respondent's part) and the second respondent's cross-claims against the first respondent have been unsuccessful.  If equitable contribution applied then it would seem that the burden would be shared equally - see the discussion by Mr. J.C. Campbell QC in the first of his two articles entitled "Contribution, Contributory Negligence and Section 52 of the Trade Practices Act - Part I" 67 ALJ 87 at p.92 and the authorities and commentaries there reviewed.  Given my findings of fact in this matter, such a result would not seem to be a fair one. 

          Although each respondent relies upon s.7 of the Contribution Act for contribution from the other, that section is not relied upon by either respondent for contribution in respect of damages which the applicant may recover for contravention of s.52 of the Trade Practices Act.  The contribution is sought only in respect of any successful claim brought by the applicant in negligence.  The first respondent not having been found liable in negligence to the applicant, its claim for contribution is not as a tortfeasor but by virtue of the second respondent's breach of duty owed to it.  It is thus not necessary to consider whether a contravention of s.52 is a tort and whether s.7 of the Contribution Act would give rise to rights of contribution as between the respondents in this matter; see the discussion of this point in Mr Campbell's articles referred to above. 

          I now consider the question whether, as between the respondents, there was any contributory negligence on the part of Daly Laboratories?

          Did Daly Laboratories depart from the standard of care which a reasonable trader in chemicals would be expected to observe in its own interests to a degree which could be regarded as contributorily negligent?

          In my opinion the answer to that question, after taking into account all the relevant circumstances, is - no.  With the advantage of hindsight it is easy to point to steps which might have been taken on the part of Daly Laboratories which might have reduced the likelihood of the happening of either the events which caused the damage or the damage itself.  I regard those events as being composite ones, so far as the respondents are concerned inter se, namely, on each occasion the supply of hydrochloric acid with such a high concentration of hydrofluoric acid, its subsequent use by Golden West and the recovery by it of damages in these proceedings.

          For example, Daly Laboratories might have asked Clyde Industries for its technical data sheet for technical grade hydrochloric acid, before placing the orders in December 1989.  But in the context of the perfectly satisfactory Ajax Chemicals supplies on several occasions earlier in 1989 this was somewhat more than could be asked of a reasonable person carrying on the type of business which Daly Laboratories was carrying on.  In any event, if it had done so, the evidence shows that Clyde Industries would (as it did immediately after the second incident) have supplied a technical data sheet showing only 100 ppm fluorine.  Daly Laboratories would probably have shown this to Golden West which, on an interim basis (pending resumption of supplies from CSBP) would probably have proceeded to use the acid.

          As between the respondents I do not think, given the history of their dealings, anything more was required of Daly Laboratories, applying the standard of reasonableness.  In terms of causation, the acts and omissions of Clyde Industries, in my view, were of such overwhelming importance as to render insignificant the matters of which complaint is made of contributory negligence on the part of Daly Laboratories.  In that respect I refer to, and incorporate here by reference, my observations earlier upon the second respondent's breach of its duty of care to Golden West - (i.e. its negligence).  Had Clyde Industries' local employees known the degree of contamination of hydrofluoric acid in this hydrochloric acid they would not have allowed the delivery to Golden West to proceed without raising the matter in the appropriate quarter - even without knowing what use Golden West was going to make of the acid.

                                             Conclusions Overall

          For the above reasons, there will be judgment for the applicant against both the respondents in the principal application.  In the first respondent's cross-claim against the second respondent there will be judgment that the second respondent recover contribution from the first respondent for the damages and any interest which it is ordered to pay to the applicant.

          The second respondent's cross-claim against the first respondent will be dismissed.

          Unless agreement can be reached between the parties on the question of interest and costs, they are to file and serve short written submissions on those matters by no later than 20 January 1995.  Any submissions in reply are to be filed and served no later than 27 January 1995.

                   I certify that this and the preceding sixty-nine

                   (69) pages are a true copy of the Reasons for

                   Judgment of Justice Carr.

                   Associate:

                   Date:     5 January 1995

Counsel for the Applicant:                     Mr G.R. Hancy

Solicitors for the Applicant:                   Messrs Phillips Fox

Counsel for the First Respondent:           Mr M.L.Barker

Solicitors for the First Respondent:         Messrs Fiocco Hopkins Rattigan

Counsel for the Second Respondent:       Mr R.J.L. McCormack

Solicitors for the Second Respondent:     Messrs Srdarov Richards

Date of Hearing:      6, 7, 8 April 1994, 4, 5, 6, 7, 8, 15 July 1994

Date of Judgment:    5 January 1995