(i) The primary judge failed even to consider a number of the plaintiff's counsels' submissions.
22 Some of these matters are relatively trivial. For instance, it may well be that the primary judge was wrong when he announced in paragraph 10 of his reasons that the opponent had assembled all newspaper articles in the relevant period that mentioned HIH. However, it is difficult to see, in light of the whole judgment, how this error affected the result.
23 The claimant put forward a six page document setting out in full part of the written submissions made to the primary judge to which he does not seem to have referred in his reasons for judgment.
24 The Court was also given a complete copy of the written submissions put to the primary judge.
25 It is not incumbent on a judge to acknowledge and deal with every paragraph of written submissions put to him or her. A fortiori is this so when, as here, the submissions contain extensive quotations from cases that are not as significant as others in the field. There is no error shown here.
26 The claimant says that everyone was misled by the way the opponent presented the assembly of additional newspaper articles. However, apart from the claimant's own proposed further evidence, there is no support for this. The material itself shows that it could not be all the articles, and the second affidavit which was served actually used the word "some". It may be that the claimant's lawyers did not pick this up, but that is not ground for challenge on appeal.
27 As to the information being six months old, this was true in one sense, though not in another, but again, had no bearing on the result.
28 Further, it is hard to see how this case could be described as a test case. It depended on and was decided on its own facts. Any other case of a person buying HIH shares about the same time would depend on its own facts and how the statements impressed themselves on the mind of each individual plaintiff.
29 I accept the opponent's submission that the reason why the claimant was unsuccessful is that, in [26] and [27] of the judgment, the learned judge did not accept either that newspaper coverage of HIH's media release as to its financial position, or statements in the financial report, played any part in the claimant's decision to buy HIH shares.
30 The primary judge took the view that although misleading statements were made about the prosperous state of HIH, there were many other statements in the press to the contrary.
31 The claimant says that this amounts to considering whether there were other factors contributing to the loss or some sort of application of a concept of contributory negligence.
32 When one considers the judgment as a whole, however, these matters and the cross-examination of the claimant on them led to the judge being able to determine as a fact that what the claimant said was the cause of his loss was not a material cause at all.
33 The claimant also complains that the judge did not apply the law as laid down by the High Court in Henville v Walker (2001) 206 CLR 459.
34 The learned judge in fact cites that judgment extensively and indeed, at [32], considers whether the false statements in the media release and financial report were a material contributing cause of the purchase and when he applied that criterion to the facts, found against the claimant.
35 This was a question of fact well within the judge's mandate to determine.
36 An attack was made on [38] of the judgment as to whether the chain of causation was cut by subsequent events. This may have provided an interesting debate as to its validity, but as it was secondary to the reason why the claimant lost the case, even if the point were to be found in his favour, it would give him no comfort.
37 Another interesting by way was the submission that the claimant could invoke the doctrine of "Fraud on the Market". We were referred to the recent decision of Finklestein J in the Federal Court in P Dawson Nominees Pty Ltd v Multiplex Ltd [2007] FCA 1061, [11].
38 This doctrine has not (yet) been successfully invoked locally, and has been downplayed by Blanchard J in New Zealand in Boyd Knight v Purdue [1999] 2 NZLR 278, 292 (CA). However, even if it has validity in Australia, the present case does not raise it.
39 The statement of claim simply said (stripped down and omitting particulars):
" 25. The misleading and deceptive conduct … induced the Plaintiff to acquire the Shares … .
26. The Plaintiff relied when acquiring the Shares upon the misleading and deceptive information … .
27. The Plaintiff would not have acquired the Shares had the true … position … been known to him."
40 Then on page 2 of the transcript, the learned primary judge said to senior counsel for the claimant "Your client says he read this material and in reliance upon it he bought shares" to which the reply was simply, "Yes".
41 Senior counsel for the claimant maintained that position even in his closing address.
42 The case presented by the claimant was simply one of reliance on misleading information and the primary judge did not accept it on the facts.
43 Putting all these matters together, including the small monetary amount involved, I would refuse leave to appeal with costs.