CATCHWORDS
TRADE PRACTICES - Consumer Protection - misleading and deceptive conduct - whether cause of action under state legislation survives death of respondent - whether order should be made appointing personal representative of deceased respondent
TRADE PRACTICES - Enforcement and Remedies - action for damages - whether cause of action under state legislation survives death of respondent
STATUTES - interpretation - rules of construction - expressio unius est exclusio alterius - application to legislation of Commonwealth and State
Fair Trading Act 1987 (WA), ss10(1), 77, 79
Trade Practices Act 1976 (Cth), ss52, 82, 87
Law Reform (Miscellaneous Provisions) Act 1941 (WA), s4
Rules of Federal Court of Australia, O6 r15, O23 r1
Interpretation Act 1984 (WA), s5
Salemi v Minister for Immigration and Ethnic Affairs (No2) (1977) 14 ALR 1
Dean v Wiesengrund [1955] 2 QB 120
Phillips v Homfray (1883) 24 ChD 439
McEvoy v Public Trustee (1989) 16 NSWLR 92
D'Este v D'Este [1973] Fam 55 sub nom D(J) v D(S) [1973] 1 All ER 349
Sugden v Sugden [1957] P 120
Whyte v Ticehurst [1986] Fam 64
United Collieries Ltd v Simpson [1909] AC 383
Felton v Oser (1969) 72 SR (NSW) 24
Johnston v Krakowski (1965) 113 CLR 552
Re Harrington; Wilder v Turner [1908] 2 Ch 287
Re Hedderwick; Morton v Brinsley [1933] Ch 669
Trade Practices Commission v Manfal (No 3) (1991) 33 FCR 382
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
PREMIERSHIP INVESTMENTS PTY LTD (ACN 057 726 173) and THOMAS MCNEIL v WHITE DIAMOND PTY LTD (ACN 052 261 757) and ANGELO FORLANI: WHITE DIAMOND PTY LTD (ACN 052 261 757) v DAKAR NOMINEES PTY LTD t/as GOODWIN MITCHELL O'HEHIR and RONALD WINSTON MCBRIDE
NO. WAG 81 OF 1994
JUSTICE R D NICHOLSON
PERTH
17 NOVEMBER 1995
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY)
GENERAL DIVISION ) NO. WAG 81 OF 1994
B E T W E E N: PREMIERSHIP INVESTMENTS PTY LTD
(ACN 057 726 173)
First Applicant
and
THOMAS McNEIL
Second Applicant
and
WHITE DIAMOND PTY LTD
(ACN 052 261 757)
First Respondent
and
ANGELO FORLANI
Second Respondent
and
WHITE DIAMOND PTY LTD
(ACN 052 261 757)
Cross-claimant
and
DAKAR NOMINEES PTY LTD
t/as GOODWIN MITCHELL O'HEHIR
First Cross-respondent
and
RONALD WINSTON MCBRIDE
Second Cross-respondent
MINUTE OF ORDER
JUDGE MAKING ORDER: JUSTICE R D NICHOLSON
DATE OF ORDER: 17 NOVEMBER 1995
WHERE MADE: PERTH
THE COURT ORDERS THAT:
1. Adele Forlani be appointed to represent the Estate of the second respondent, Angelo Forlani (deceased) for the purposes of these proceedings.
2. The respondents pay the costs of the applicant on the motion to appoint a representative of the estate of the second respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY)
GENERAL DIVISION ) NO. WAG 81 OF 1994
B E T W E E N: PREMIERSHIP INVESTMENTS PTY LTD
(ACN 057 726 173)
First Applicant
and
THOMAS McNEIL
Second Applicant
and
WHITE DIAMOND PTY LTD
(ACN 052 261 757)
First Respondent
and
ANGELO FORLANI
Second Respondent
and
WHITE DIAMOND PTY LTD
(ACN 052 261 757)
Cross-claimant
and
DAKAR NOMINEES PTY LTD
t/as GOODWIN MITCHELL O'HEHIR
First Cross-respondent
and
RONALD WINSTON MCBRIDE
Second Cross-respondent
CORAM: JUSTICE R D NICHOLSON
DATE: 17 NOVEMBER 1995
PLACE: PERTH
REASONS FOR JUDGMENT
The applicants move the Court for an order that the widow of the second respondent be appointed to represent his estate for the purpose of these proceedings. The application is made
pursuant to O6 r15(1) of the Federal Court Rules which reads as follows:
"15 (1) Where in any proceeding it appears to the Court that a deceased person was interested, or that the estate of a deceased person is interested, in any matter in question in the proceeding and that he has no personal representative, the Court may, on the application of any party -
(a) order that the proceeding continue in the absence of a person representing the estate of the deceased person; or
(b) by order (with the consent of the person appointed) appoint a person to represent that estate for the purpose of the proceeding."
The application may be made by "any party". A pre‑condition to the operation of the rule is that either "a deceased person was interested... in any matter in question in [a] proceeding" or "the estate of a deceased person" is so interested. No application has been made that the proceeding continue in the absence of a person representing the estate of the second respondent pursuant to O6 r15(1)(a).
On behalf of the respondents the motion is opposed, although the consent of the second respondent's widow is tendered in the event that the Court considers it appropriate for an appointment to be made. The essential ground on which the opposition is based is that the right of action in the proceedings was personal to the second respondent and no cause of action now arises in relation to his estate. That is a submission which must be taken into account along with all other relevant matters in the exercise of the Court's discretion arising under the rule.
The motion is supported by an
affidavit from the solicitor for the applicants in which there is hearsay
evidence from the respondents' solicitors that the second respondent died
during
May 1995 and that, while a personal representative has not yet been appointed
in respect of his estate, his widow intends applying for that office. No affidavit is filed on behalf of the
respondents and nor is this evidence disputed in submissions on their behalf.
The proceeding was initiated on 13 July 1994. The applicant's claim against the second respondent is for damages pursuant to ss82 and 87 of the Trade Practices Act 1974 (Cth) ("the TPA") and ss77 and 79 of the Fair Trading Act 1987 (WA) ("the FTA") and interest on damages pursuant to s51A of the Federal Court Act 1976 (Cth), together with costs and other appropriate orders. Section 82 of the TPA provides that a person who suffers loss or damage by conduct of another person, that was done in contravention of a provision of PtIV or V, may recover the amount of loss or damage by action against that other person or against any person involved in the contravention, provided the action is commenced at any time within three years after the date on which the cause of action accrued. Section 87 provides for ancillary orders in certain circumstances. Section 77 of the FTA provides that where the court is satisfied that a person has suffered, or is likely to suffer, loss or damage by reason of conduct of another person in contravention of a provision of the FTA, the Court, whether or not an injunction or any other relief is granted or any other order made, may make such order or orders "as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention for the purpose of compensating the first mentioned person wholly or in part for the loss or damage or of preventing or reducing the extent of the loss or damage." The nature of the orders which may be made under the section includes:
"(f)an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at the person's own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage; and
(g) an order, in relation to an instrument creating or transferring an interest in land, directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to execute an instrument that -
(i) varies, or has the effect of varying, the first-mentioned instrument; or
(ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first-mentioned instrument."
Section 79 provides for recovery of damages where there is loss or damage as a consequence of contravention of certain parts of the FTA.
The statement of claim pleads that conduct of the second respondent in October 1992 in making certain representations in relation to turnover of a business and its banking and cash book was misleading or deceptive or likely to mislead or deceive in contravention of s10(1) of the FTA and that the first respondent's conduct as pleaded, in making the same representations, was conduct in which the second respondent was knowingly concerned in contravention of s52 of the TPA. It is pleaded that by reason of the representations and the reliance placed upon them by the applicants they have suffered loss and damage. It is also pleaded that at all material times the second respondent was a director of the first respondent.
Section 52 of the TPA 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. Section 10(1) of the FTA provides that a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. The word "person" is not defined in the interpretation section of the FTA (s5). Section 5 of the Interpretation Act 1984 (WA) provides that "person" includes a company so that s10(1) of the FTA may be read as applicable to both individuals and companies. However, its operation in respect of companies would yield to the TPA.
The initial arguments on behalf of the respondents in opposition to the motion run as follows:
(a) Section 75AH of the TPA provides that "a law of a State or Territory about the survival of causes of action vested in persons who die, applies to actions under ss75AD, 75AE, 75AF or 75AG."
(b) Because the TPA has so expressly provided for survival of causes of action in relation to those particular sections, other causes of action in respect of which no such legislative provision is made do not survive: expressio unius est exclusio alterius ("the expression of one (specific) thing is the exclusion of another"); Salemi v Minister for Immigration and Ethnic Affairs (No2) (1977) 14 ALR 1.
(c) It appears that it is accepted on behalf of the applicants that it is not in issue that the action against the second respondent pursuant to ss52 and 82 of the TPA does not survive the second respondent's death.
(d) The FTA was intended to be mirror legislation to the TPA so that the cause of action cannot survive under the FTA when it does not survive under the TPA.
Turning to the first element of the argument, it should be noted that the sections for which survival is expressly provided in s75AH are provisions relating to the liability of manufacturers and importers for defective goods. In its terms the section does not seek to speak for other sections of the TPA. Furthermore, it addresses only a right vested in persons not rights subsisting against persons.
Turning to the second limb, the expressio unius rule, it is apparent from what is said in D C Pearce and R S Geddes, Statutory Interpretation in Australia, 3rd ed at 79-82, par4.22, that the rule is applied by courts with extreme caution. It is there said that when the rule is followed it is used more often as a bolster to a predetermined interpretation than as a rule that produces a result in itself. The matter has not been fully argued before me in terms of the authorities relating to the application of the rule. While I accept that the point is arguable, I do not consider that it is necessarily the case that the enactment of s75AH attracts the application of the rule. So far as the enactment of the section creates an ambiguity or obscurity in relation to sections to which it does not refer (inasmuch as it raises the question of whether there is survival of other causes of action in the absence of such an enactment) I note that during the course of debate on the Trade Practices Amendment Act 1992, which introduced s75AH, the Minister for Justice said that "It is not the intention by inserting this provision about survival of liability, to disturb any existing survival rights that do exist, if indeed they do exist, in relation to other parts of the Trade Practices Act": Australian Senate Hansard, 3 June 1992 at 3375, cited in CCH Trade Practices Reporter, vol2, 17924, par24-350.
Caution in acceptance of the applicability of the expressio unius rule here is encouraged by reference to the decision of the Court of Appeal in Dean v Wiesengrund [1955] 2 QB 120 (cited in Halsbury's Laws of England, 4th ed, p795, par1565, footnote 5. It was there held that an executor of a tenant could recover excess rent paid by the deceased tenant to the landlord. Section 14(1) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 (Eng) conferred the right to recover on the tenant by whom it was paid, no reference being made to the tenant's personal representative. This was in contrast to a right of recovery against the landlord "or his personal representative" in s5 of the Courts (Emergency Powers) Act 1917 (Eng). Morris LJ said at 137:
"The maxim "expressio unius exclusio alterius" was relied upon. In considering the application of this maxim it is desirable to have in mind the warnings expressed by Wills J and by Lopes LJ in Colquhoun v Brooks.16 Wills J said: "I may observe that the method of construction summarized in the maxim `expressio unius exclusio alterius' is one that certainly requires to be watched. Perhaps few so‑called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the `expressio' complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind; and the application of this and every other technical rule of construction varies so much under differing circumstances, and is open to so many qualifications and exceptions, that it is rarely that such rules help one to arrive at what is meant. Certainly in the present case the only use of the maxim in question is to summarize in four words the argument upon this point for the Crown."
Lopes LJ, in the Court of Appeal, referred to the maxim as often being "a valuable servant but a dangerous master." Doubtless there are instances where matters expressly mentioned may be regarded as comprehensive, complete and all-inclusive. But I fail to see that the maxim can be applied to the provision in the 1917 and 1920 enactments. Decisions of policy might account for the provisions enacted. Furthermore, if the maxim is being considered, I should have thought that it ought to be considered separately in regard to the landlord's position and in regard to the tenant's position. A provision that a sum shall be recoverable "by the tenant... by whom it was paid" does not in relation to the tenant set out any express words which by their mention must exclude other words not mentioned."
As to the third element of the argument, it is not the case that the applicants have conceded the non-survival of causes of action under the TPA.
Concerning the fourth element it is not in doubt that the FTA was introduced to "mirror" provisions of the TPA because it applied generally to corporations and it was desired to have such provisions applicable as a model for consumer protection: Western Australia Hansard Legislative Assembly, 10 November 1987, Second Reading Speech on Fair Trading Bill at 5517, 5518 and 5519. However, it is also apparent that the FTA was not simply a straight copy of the TPA. The contrast between s52 of the latter and s10 of the former has already been set out. Furthermore, the latter did not contain an equivalent of s75AH. The FTA not being a complete copy, the force of the argument for the applicants that it should have the same effect as the TPA is diminished.
It is said on behalf of the applicants that whether or not the TPA survives in respect of the claims against the second respondent, it is clear that the claims under the FTA do survive by virtue of the operation of the Law Reform (Miscellaneous Provisions) Act 1941 (WA) ("the MP Act") which enacted the following section:
"4. (1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate. Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under section ninety-four of the Supreme Court Act 19351, for damages on the ground of adultery."
The quantum of damages recoverable in application of that rule is affected by subs(2). In addition, subs(3) provides time limits for the bringing of a cause of action in tort. The cause of action against the second respondent is not within the exceptions in s4(1) nor is it an action in tort to which the time limits in s4(3) are applicable.
The MP Act came about in the following circumstances. At common law, personal representatives could neither sue nor be sued for any tort committed against or by a deceased in his or her lifetime: J G Fleming, The Law of Torts, 8th ed at 675. This was known as the principle of "actio personalis moritur cum persona" ("a personal action dies with a person"). This was a rule which for the most part was limited to causes of action in tort (but not with respect to claims for restitution of property misappropriated and added to the estate of a deceased) but also extended to some causes of action in contract, for example, breach of promise of marriage or negligence of a medical practitioner where only a personal injury was involved: Broom's Legal Maxims, 7th ed (1900) at 681; Phillips v Homfray (1883) 24 ChD 439; McEvoy v Public Trustee (1989) 16 NSWLR 92 at 100 per Powell J. However, in the 14th century, legislation was introduced which enabled representatives to sue for any injury done to the personal or real estate of the deceased and, later, even to be sued in corresponding circumstances: Civil Procedure Act 1883; Fleming (supra) at 676. With regard to personal injuries, however, the non‑survival rule remained in full force so that any action, not brought to a verdict before either of the parties died, abated and could not be recommenced by or against personal representatives: Fleming (supra) at 676. The Law Reform (Miscellaneous Provisions) Act 1934 (Eng) ("the MP Act (Eng)") provided a model which led to enactments of a uniform character throughout Australasia designed to reform this aspect of the law. The MP Act was the result in Western Australia. See also P H Winfield, `Death as affecting liability in tort', vol29 (1929) Col LR 239; Holdsworth, A History of English Law, 4th ed, voliii, p576ff; The Law Reform Commission of Western Australia, Report on Limitation and Notices of Action, Project No36 - Pt1, 1982, p25.
The effect of the equivalent legislation in New South Wales was considered by Powell J in McEvoy (supra) at 100. He said that because the equivalent of the MP Act in New South Wales was intended to remedy the application of the anomalous rule of the common law, "one must guard against being overly ready to extend, or widen, the meaning of the phrase "cause of action" into a different area of the law, particularly when that area of the law is the creature of statute, whether enacted before, or after, the coming into operation of the... MP Act". In McEvoy (supra) Powell J concluded that the relevant section of the Family Provision Act 1982 (NSW) only authorised a court to act for the benefit of living persons and that the right to seek an order under the MP Act was personal and therefore not a "cause of action".
In so deciding Powell J reached a decision which was consistent with English decisions under matrimonial legislation. In D'Este v D'Este [1973] Fam 55 at 59 sub nom D(J) v D(S) [1973] 1 All ER 349 at 352, Ormrod J (as he then was) said (at 352), that a court should be very cautious in extending the phrase `cause of action' in s1(1) of the MP Act (Eng) (the equivalent of s4(1) of the MP Act) to applications for financial relief in the Family Division which were essentially personal in nature, arising between parties to the marriage or children of the marriage and deriving from matrimonial legislation. In Sugden v Sugden [1957] P 120 the Court of Appeal held that the same section had no application to an obligation imposed on a husband to make maintenance payments for his children so that they did not extend beyond his lifetime. Denning LJ (as he then was) said at 134:
"The section only applies to "causes of action"
which subsist against the deceased at the time of his death. The legislature had particularly in mind
causes of action in tort which used to fall with the death of either party
under the old common law maxim actio
personalis moritur cum persona.
"Causes of action" in the section means, I think, rights
which can be enforced - or liabilities which can be redressed - by legal
proceedings in the Queen's courts.
These now survive against the estate of the deceased person. "Causes of action" are not
however, confined to rights enforceable by
action, strictly so called - that is, by action at law or in
equity. They extend also to rights
enforceable by
proceedings in the Divorce Court, provided that they really are rights and
not mere hopes or contingencies. They
include, for instance, a sum payable for costs under an order of the Divorce
Court, or a right to a secured provision under an order already made against a
man before his death: see Hyde v Hyde
[[1948] 1 All ER 362] and Mosey v Mosey
& Barker [[1955] 2 All ER 391].
It must be noticed, however, that the section only applies to causes of action "subsisting against" the deceased on his death. This means the right or liability must have accrued due at the time of his death.
There is usually no difficulty in an ordinary action in determining when the right or liability accrued due: but there is more difficulty in proceedings in the Divorce Court. In that court there is no right to maintenance, or to costs, or to a secured provision, or the like, until the court makes an order directing it. There is, therefore, no cause of action for such matters until an order is made. I do not think that the fact that a cause of action is discretionary automatically takes it out of the Act. An injunction is a discretionary remedy, but, if a cause of action for an injunction subsisted at the death, I should have thought that it would survive against the personal representatives. The only thing which takes a case out of the Act is the absence of an enforceable right at the time of death.
...
In order that the cause of action should subsist at the death, the right under the order must itself have accrued at the time of death.
...
In the present case, there was no right or liability subsisting against the father at the time of his death". (Emphasis added).
In Whyte v Ticehurst [1986] Fam 64 at 68, Booth J in the Family Division held that the dicta of Denning LJ in Sugden (supra) applied equally to the converse situation where it is asserted that a cause of action is vested in a deceased and survives for the benefit of his estate. Where the widow's death had preceded any determination by the court of her claim, there could be no enforceable right against the estate because no order had been made for financial provision. No enforceable right exists until the order is actually made.
In my opinion there are two sound reasons for distinguishing the English matrimonial authorities from the present case. The first is that the claim against the second respondent, which lies pursuant to ss10 and 79 of the FTA, is not in the nature of a claim which itself embodies no right until such time as an order is made.
The second is that s79 of the FTA uses the words "cause of action" to characterise the nature of the claim. Of these words, Singleton LJ said in Dean (supra) at 129:
"The cause of action given to a tenant by s14 of the Rent Act 1920, is at the lowest a personal right conferred upon the tenant. If I am wrong in that which I have said above and if s14 did not confer a right which passed to the personal representative of the tenant, the effect of s1 of the Act of 1934 is that the cause of action so given shall survive for the benefit of his estate. Section 1(1) of the Act of 1934 contains a proviso that it shall not apply to certain causes of action. Apart from those excluded it is to apply to all causes of action, and it appears to me that it is sufficient to cover the claim in this case." (Emphasis added).
The wide construction given to the words "cause of action" in these decisions is consistent with s4(3) of the MP Act which distinguishes "causes of action in tort" from "all causes of action" referred to in s4(1). As Denning LJ recognized, the mischief addressed by the MP Act (Eng) was the non-survival of a cause of action for personal injuries but the language adopted by Parliament was such as to address causes other than those the subject of the mischief. The authorities, therefore, recognize that it is not the case that s4(1) of the MP Act should be read as confined only to the subject of the mischief which activated the enactment so that it is incapable of bringing survivorship to other causes of action.
The words "cause of action" are those which the Parliament of Western Australia has used in s4(1) of the MP Act and s79 of the FTA. There is nothing in the nature of the statutory provision in s79 of the FTA to bring it into the category of cases where the right or liability has not accrued at the date of death.
The case for the respondents then approaches the matter from the nature of the provisions in the FTA, contending that the statutory right there created is such that it could not survive. The argument emphasises that whether or not the cause of action conferred by any statute survives depends upon the construction of the statute: United Collieries Ltd v Simpson [1909] AC 383 at 391 and Halsbury's, Laws of England, 4th ed, vol17 at 1565. However, what was said by Lord Macnaghten in United Collieries (supra) predated the enactment of the MP Act (Eng). Similarly, statutory provisions in the law of Western Australia creating causes of action and providing for their non-abatement on death, are of no assistance where the enactments predate the MP Act: see Friendly Societies Act 1894, s21(3) and the Health Act 1911, s359.
The argument for the respondents further develops in reliance upon the acceptance by Powell J in McEvoy (supra) at 102 of the proposition that a cause of action which is personal to a particular person is not transmittable: see Felton v Oser (1969) 72 SR (NSW) 24. Put another way, unless the relevant "cause of action" has the quality of transmissibility, s4(1) of the MP Act has no scope to operate.
In Felton v Oser (supra) the Court of Appeal allowed an appeal against an order rectifying a court sanctioned deed made following the dissolution of a marriage and subsequent death of the respondent to secure payment of a periodic sum. It held that the statutory source of power - s87(1)(a), (b) and (c) of the Matrimonial Causes Act 1959 (NSW) was limited to the making of orders against a living party to the marriage to be complied with by the party personally. The Court said at 30:
"Apart from that exception we have not been referred to any instance in which a court exercising jurisdiction in matrimonial causes has in a suit for dissolution of marriage made an order for ancillary relief after the suit has abated upon the death of a party to the marriage. It may be that the reason for no such order having been made is to be found in the view that the principal relief sought, namely the dissolution of the marriage, is personal to the parties (Brydges v Brydges [[1909] 187 at 194)] and that it is the claim for that relief which is the substratum of the suit with the consequence that the court will not after the death of a party to the marriage proceed to grant either the principal or the ancillary relief sought."
It held it was precluded from rectifying the decree because the effect of the High Court decision in Johnston v Krakowski (1965) 113 CLR 552 was that orders for maintenance and securing maintenance must be made during the lifetime of the respondent. The statutory provisions considered in Felton (supra) are within the category of matrimonial exceptions of the type referred to by Denning LJ in Sugden (supra). It was applied by Powell J in respect of the right to seek an order under the Family Provision Act 1982 (NSW), s7. Neither case supports the contention that the statutory cause of action in s10 of the FTA should be characterised as non-transmittable.
The personal character of statutory obligations which do not survive is referred to in Halsbury, 4th ed, p777, par1517 where such obligations are illustrated by reference to the liability of a putative father under an application order (Re Harrington; Wilder v Turner [1908] 2 Ch 287) and payment of arrears of maintenance (Re Hedderwick; Morton v Brinsley [1933] Ch 669). That is not the character of the cause of action in s10 of the FTA.
The argument for the respondents then turns finally to the content of the relevant statutory provisions providing remedies. It is said that s77 of the FTA like s87 of the TPA creates both right and remedy: Trade Practices Commission v Manfal (No 3) (1991) 33 FCR 382 at 384. It is contended this is plainly a right and remedy against a particular person namely, the contravener or a person involved in the contravention and that the orders available include an order directed to the relevant person or persons involved in the contravention to either "(f) provide services" or "(g) to execute an instrument". The argument then runs: an executor is neither the "person" (ie the contravener), nor a "person involved in the contravention": to require A to provide services to B because he is the executor of C, requires more than the survival of a "cause of action" - it requires the Court to consider S4 of the MP Act as a source of power: that is, it requires the conclusion that s4 empowers the Court to make a discretionary order against a person who is not expressed to be the object of the discretionary power which s77 creates. It is argued that it cannot be thought that the discretionary power created by s77 "survives" against an executor for some purposes but not others. Nor (it is argued) do ss74-76 FTA empower the Court to make an injunction against an executor or personal representative. So it is contended the wording of, and nature of the relief available under ss74‑76 and 77 FTA, suggest strongly the conclusion that rights and remedies by those sections do not survive by reason of s4 of the MP Act. It is submitted it would be an odd result if the statutory rights created by s79 (which creates rights and remedies against the persons of the same description) did survive when the remedies provided for in s74-77 did not.
I do not accept these submissions. In my opinion the effect of s4 of the MP Act is to occasion a cause of action against a deceased (or a deemed action pursuant to s4(4)) to survive against his estate so that the estate of the deceased stands in the place of the deceased for the purposes of the application of any statutory remedies relevant to the cause of action. Whether or not every remedy would be appropriate as a consequence of the deceased's death is a matter for discretionary consideration in the application of the relevant remedies. The dicta of Denning LJ in Sugden (supra) makes it clear that the discretionary character of a remedy does not mean it does not survive against personal representatives.
It is also contended for the respondents that purposive construction militates strongly against the survival of a cause of action: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423. This argument is prefaced by the assertion that it is manifestly unlikely that "the legislature" should have intended the cause of action under the TPA not to survive but the cause of action resting on the same facts to survive under the FTA. There are two fallacies in that submission, in my opinion. The first is that it may not have been the intention of the legislature that the cause of action under the TPA should not survive, even in the absence of an express legislative prescription to that effect. Secondly, it is not the same legislature which has expressed the intention; rather it is the legislature of the Commonwealth on the one hand and the legislature of the State on the other which have each formed their separate intentions in relation to each of their enactments.
An examination of the history of the "maxim" actio personalis shows that it did not extend to actions ex contractu (apart from those relating to personal services) nor to actions whereby the estate of a deceased was enriched by misappropriation: Winfield, op cit, 248; Phillips (supra). The survival of a statutory right in respect of alleged unfair conduct by misrepresentation sits consistently with the above exceptions to the long history of the application of the rule, the effect of which was in any event subject to "sweeping" reform (cf. Salmond & Houston, Law of Torts, 20th ed, Sweet & Maxwell 433, par20.10) in the MP Act. In the end, what is decisive is that the cause of action given by s10 of the FTA is a right enforceable at the time of death: Sugden (supra) per Denning LJ. It is not in the nature of a claim yet to be made enforceable. It is of the character which survives by operation of s4(1) of the MP Act.
There being no other contention against the motion of the applicants and it being the case that the second respondent was a deceased person who was interested in the proceeding, the motion should be granted.
I certify that this and the preceding 16 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.
Associate:
Date:
APPEARANCES
Counsel for the First Applicant: Mr K Honeyman
Solicitors for the First Applicant: Pye & Quartermaine
Counsel for the First
and Second Respondent: Mr D Stone
Solicitors for the First
and Second Respondent: Williams & Hughes
Counsel for the First
and Second Cross-respondent: Mr B Goetze
Solicitors for the First
and Second Cross-respondent: Minter Ellison
Date of Hearing: 26 October 1995
Date of Judgment: 17 November 1995
