- 47 -
or not it is there acted upon. And the same would seem to be true if the statement is directed to a place from where it ought reasonably to be expected that it will be brought to the attention of the plaintiff, even if it is brought to attention in some third place.
173 I will refer to the circumstance where a statement is "directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff" as the "directed" element. Valve essentially relied upon these remarks, and their approval in other cases, concerning this directed element. However, the joint judgment in Voth did not require that a statement or representation be directed at a recipient. Their Honours were considering whether the negligence of the accountant was committed outside Australia, and rejecting the suggestion that the substance of the tort of negligent misstatement is always committed where the statement is received and acted upon. They said that there was no such general rule, "for a statement may be received in one place and acted upon in another" (at 568).
174 The point being made in Voth was that where a statement which is directed to, or known or anticipated to be received by a person, there will be no difficulty in saying that the statement is made at that place rather than where the statement is acted upon. Another way of putting this point is to say that the remarks about "directing" a statement to a person reflected the usual essence of liability for negligent misrepresentation which is an assumption of responsibility to a person: see Swick Nominees Pty Ltd v Leroi International Inc (No 2) [2015] WASCA 35; (2015) 48 WAR 376, 443–446 [368]–[381].
175 Even if the joint judgment had insisted upon such a "directed requirement" for negligent misstatement (which it did not), this "directed" requirement should not be transplanted to the test for the location of the conduct relied upon in an action for contravention of very different statutory norms in ss 18(1) and 29(1)(m) which do not have an assumption of responsibility as a usual indicator of liability. Further, the cases in relation to characterising various different conduct under the Trade Practices Act have emphasised that it is not necessary that it be directed at a particular person. For instance, in Australian Competition and Consumer Commission v Chen [2003] FCA 897; (2003) 132 FCR 309, it was sufficient for a conclusion that website representations were made in Australia where they suggested a connection between American websites and the Sydney Opera House. See also Ward Group Pty Ltd v Brodie & Stone plc [2005] FCA 471; (2005) 143 FCR 479, 490 [40] (Merkel J); Australian Competition and Consumer Commission v Yellow Page Marketing BV [2010] FCA 1218 [22] (Gordon J).
