Concrete Constructions (NSW) Pty Limited v Nelson

[1990] HCATrans 3

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S96 of 1989

B e t w e e n -

CONCRETE CONSTRUCTIONS (NSW)

PTY LIMITED

Appellant

and

GRANT ANTHONY NELSON

Respondent

MASON CJ

BRENNAN J

DEANE J

DAWSON J

Concrete(2)

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 FEBRUARY 1990, AT 10.16 AM

Copyright in the High Court of Australia

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MR D.M.J. BENNETT, ~C:  May it please the Court, I appear

with myearned friends, MR D.A. COWDROY, QC, and

MR M.R. GRACIE, for the appellant.

(instructed by Westgarth Middletons)

MR F.M. DOUGLAS, QC:  May it please the Court, I appear with

my learned friend, MR D.R. CONTI, for the respondent.

(instructed by McClellands)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned

friend, MR S.J. GAGELER, to intervene for the

Attorney-General of the Commonwealth in support

of validity if that becomes relevant and in the interests

of the respondent. (instructed by the Australian Government Solicitor)

MR H.C. BERKELEY, QC, Solicitor-General for Victoria: If the

Court pleases, I appear with my learned friend,

MR S.G. O'BRYAN, to intervene for the Attorney-General

for the State of Victoria in the interests of the

appellant. (instructed by the Crown Solicitor for

Victoria)

MR K. MASON, QC, Solicitor-General for New South Wales: If the

Court pleases, I appear with my learned friend,

MR P. TAYLOR, for the Attorney-General for New South

Wales to intervene in the interests of the appellant.

(instructed by the Crown Solicitor for New South Wales)

MASON CJ:	Yes, Mr Bennett.
MR BENNETT:	If the Court pleases, I hand up 10 copies of our

outline of submissions.

MASON CJ:  Thank you. Yes.

MR BENNETT:  If the Court pleases. Your Honours, the issue in

this case is the degree to which the preposition

"in" takes the words trade and commerce in

section 52 of the TRADE PRACTICES ACT. Your Honours,

section 52 is set out on page 54 of the appeal book.

It is a very short sentence but it is as well to

start with it.

(Continued on page 3)

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MR BENNETT (continuing):  The facts in the statement of claim

are, as Your·Honours are aware, very simple. There is

no doubt that the conduct alleged is capable of

being conduct that is misleading or deceptive.

There is no doubt that the appellant is a corporation.

There is no doubt that the appellant engages in

trade and commerce and indeed that the activities
in which it was engaged, the building construction

in the broad sense are part of those activities in

trade and connnerce. The question is a very short

one. It is whether a specific statement made by
a foreman to a labourer in relation to the

work site which is misleading or deceptive in

relation to the condition of the work site can be

said to be conduct in trade and commerce in the

meaning of that section.

It is important to realise that the case has

nothing to do with the meaning of the words

"trade" and "commerce" themselves. No one suggests,

and it was not suggested below,that the

relationship between the employer and the employee

under which work was done for remuneration was

itself trade and commerce between the employer and

the employee. No one suggests that. Nor, of course,

does anyone suggest that what the foreman says to

the labourer involves trade and connnerce between

the foreman on behalf of the company or not

and the labourer.

So we are not concerned with the meaning of "trade" and "connnerce". The trade and commerce

is the company's trade and commerce with the world

in the course of which it is constructing a

building.

McHUGH J: That raises some problem, does it not, having regard

to the statement of claims. As far as the statement

of claim is concerned you would not know what

commerce Concrete Constructions was engaged in.

It might have been building a building for itself?

MR BENNETT:  That is so but the case has been argued on the

basis that that was not the case and certainly

that admission is forthcoming if it is needed.

McHUGH J: Yes.

(Continued on page 4)

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MR BENNETT (continuing:) There is no dispute that the general

activity is a trade and con:nnerce activity. The simple

question is does the preposition "in" bring it as low,

if one may use the word low in a neutral sense, as

the statement by the foreman to the labourer and that is

the issue.

It is rather like,I suppose,the situation which was

referred to as an example below in argument of the interstate

truck driver who is indisputably driving a truckload of

goods between Sydney and Brisbane engaged in interstate

trade. The core of interstate trade - a truckload of

goods from one State to another. If that truck driver

gives a misleading or deceptive hand signal inviting the

vehicle behind to overtake when it is unsafe to do so and

a collision occurs, we would submit there is no doubt that

that is not misleading or disceptive conduct in trade and

commerce simply because the specific conduct relied on
is so far down to the particular that it is away from trade

and commerce and the preposition "in" is just not wide enough

to get one down that far.

The word, of course,must be distinguished from"in

relation to", "in respect of", ''with respect to" and much wider

conjunctive phrases like that. They produce totally different

results and I will come to that when I get to the analogy

under the CONSTITUTION.

Now the starting point is the mischief to which the

provision was directed and might I hand to Your Honours

some copies of Hansard with a view to showing when the Act

came in what that mischief was. Your Honours will not be

surprised to learn that the mischief was a long way away

from negligent conduct towards employees in the workplace.

I will go through these fairly quickly although they are bulky, because theprop0sition is fairly self evident.

(Continued on page 5)

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MR BENNETT: 

The first one is the second reading speech of

Senator Murphy, as he then was, on page 1013 of
the Senate Hansard of 27 September 1973. Your Honours

will see he starts by saying, halfway down column 2:

The purpose of this Bill is to control

restrictive trade practices and monopolisation

and to protect consumers -

he stressed that word -

from unfair conunercial practices.

At the bottom of the page:

In consumer transactions unfair practices

are widespread. The existing law is still

founded on the principle known as caveat emptor -

meaning 'let the buyer beware'. That principle
may have been appropriate for transactions

conducted in village markets. It has ceased

to be appropriate ..... Now the marketing of

goods and services is conducted on an organised

basis and by trained business executives. The

untrained consumer is no match for the businessman who attempts to persuade the consumer to buy goods

or services on terms -

et cetera -

The consumer needs protection by the law.

Then, at about point 3 of the page in the first column,

starting in the margin:

Consumer protection also assists in the fight against inflation.

On page 1015, at the bottom of the first

column in the last paragraph, there is a reference to

the constitutional power behind the provision, and

he says: 

The constitutional power of the Australian Parliament to enact legislation such as that contained in the Bill was clarified by the very important decision of the High Court in what is known as the CONCRETE PIPES case. For present

purposes that case established that restrictive
trade practices and monopolisation legislation

corporations power.

contained in the AUSTRALIAN INDUSTRIES PRESERVATION

And the bill takes these considerations into account -

corporations power. And there is a reference to

clause 5 which is now section 6.

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MR BENNETT (continuing): Finally, in this speech, may I

take Your Honours to page 1018 under the heading, "The

Consumer Protection Provisions'.', he says:

The consumer prctection provisions are to be

found for the most part in Part V. Some of these

provisions are expressly limited to transactions

involving consumers.	The meaning of	consumer
is dealt with -

and that is then defined: it excludes "a person in

the trade or business". Leaving the next paragraph

out:

Division 1 of Part V prohibits a number of

unfair practices. Clause 52 -

is our section -

prohibits misleading or deceptive conduct -

and does so in general terms. It is important

that there should be such a provision if the

law is not to be continually one step behind

businessmen who resort to smart practices.

That is the purpose of this section. The next occasion the matter came before the Senate is - the

second of the documents in the bundle - on

24 October 1973, at page 1413. On page 1414,

first column, at about point 3, just before the

reference to "The Deputy President", Senator Murphy

says:

The Bill deals not only with that menace,

but also with measures to protect the

consumers in this community.

Then there is a suggestion that he is transgressing

his ruling and sounding very suspiciously like a

second reading speech. I take that as a licence to

read a bit further as if it were a second reading	speech. Senator Murphy then says, about 10 lines	further down, against the partial word "formity" in
the margin:

Ther.e are operat:i,.ng in thi-s communit;y a number

of practices over and above what are called

restrictive trade practices, which are to the

detriment of the consumer, and they ought to

be dealt with by laws as soon as possible.

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HR BENNETT (continuing): ~fuat follows is a list of matters

dealt with in this part of the Act and thP.v are

all consumer protection motives.

There ought to be operatin3"-throtigho.at:

Australia laws against fraud, deception

and the abrogation of the rights of

consumers. There is a necessity to stop

misleading or deceptive conduct in

commerce, false representation, the

deceptive offering of prizes in connection
with promotion of goods and services, and
misleading conduct to which the Industrial
Property Convention and the Industrial

Property Convention apply. There is a

necessity to stop bait advertising,

referral selling, accepting of payment

without intending to supply an order.

There is a necessity to stop misleading

statements about home operated business;

and so on. Nowhere in the list does he say, "We

also intend, by the way, to reform the law of

Industrial Accidents, so that if someone makes a

misleading or deceptive statement to an employee

there will be an action for personal injuries under

this section as well."

TOOHEY J: The problem with that argument, Mr Bennett, is that

in other contexts,that is contextsdifferent to the

one we are concerned with now, the courts have

given an operation to section 52 that takes it far

beyond the relationship of consumer.

MR BENNETT:  I will be coming to that, Your Honour. I will be

submitting that at least one of those cases ought not to be followed, but all of those cases I will

be submitting ,, and t~is is paragraphs· 7 · and 8 of my
submissions, can be distinguished on one of two

bases. One is that one can have when one is

dealing with large items, people who are effectively

in the position of consumers, for example

purchasers of businesses who are, in a sense,

consumers bf what the vendor offers. The other is

that the courts have extended the concept of trade

and commerce back a little bit, where there is

something which is a necessary prerequisite to the

activity which involves the protection of consumers,

but I will be coming to those cases, Your Honour,

and seeking to distinguish them. I will also

be making the submission at the very end of my

submission~ the stronger submission that the Act

is confined to consumer protection. At the moment

I am merely submitting that the general ambit of

it has a flavour of consumer protection and t.½at it

-~--~	ii.;. ~-li@J:l.t anrl ~t'"aoe ou.-;ht not to
cons.true it so ~roardly ~	to- go info areas that would
not have been contemplated.

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BRENNAN J:	What about the headings? Are we concerned with the headings?
MR BENNETT:	Yes, Your Honour, and I will be referring to

that. That uses the words ~consumer protection".

I will be submitting section 15AB of the

INTERPRETATION ACT allows one to look at that to

the extent necessary.

BRENNAN J: After we have exhausted the parliamentary debates?

MR BENNETT:	I do not propose to exhaust them, Your Honour, I propose to deal with them in probably less than
two minutes from now.  The rest of the second
bundle is a very lengthy debate in the Senate on
the Act and all I refer to that for is what is
not there. What is not there, of course, is any reference to the very striking change in the law
that would be adopted if this Act were to apply
to industrial accidents or traffic signals and
that sort of misleading or deceptive conduct.

The second reading speech of Mr Enderby, as

he then was, in the House of Representatives is

the next document. I will not take Your Honours

through that. It is substantially identical.

The Act was then partially revamped and reintroduced on 15 November 1973 - that is the fourth of the

documents I have given to Your Honours. The second

reading speech is virtually word for word with

the one I have taken Your Honours to. There are

some differences but they are not material to what

I am putting and the passages I have referred to

all appear in the speech beginning on page 1871. The reference to "businessmen who resort to

smart p:-actices" appears at page 1877, at about

point 6 in the first column. In that time, 1973-

1974, there was, as Your Honours would be aware,

considerable controversy in Australia about accident

compensation legislation. The Woodhouse Commission

was sitting and preparing its report, there was

public debate on the issue, it was a matter which

was well to the forefront of the minds of members

of Parliament. And it would be surprising if

by a side wind of this type so dramatic a change

to that area of law were to have been introduced,

particularly when one considers what some of the

ramifications would have been. It would have affected

industrial insurance which might or might not cover

statutory liability under the TRADE PRACTICES ACT.

(Continued on page 9)

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MR BENNETT (continuing): It would have affected certainly

the parliamentary debate and it might well have had

an effect on State laws concerning industrial

accidents; and it would be somewhat surprising, one would think, that there was a three-year limitation

period in this Act, although there is a six-year

limitation period for other industrial accidents.

What possible policy, one asks, would there be, in

saying that an industrial accident caused by

misleading or deceptive conduct should have a three-
year limitation period, but that other forms of

negligence should have a six-year limitation period.

And surely these matters would have been considered

and dealt with, and of course, they are not.

It is also of significant, when one looks at the

TRADE PRACTICES ACT, first that there is, as I have said, a heading in the part dealing with consumer protection,

and then a subheading, "Unfair Practices". Now one would

simply not normally regard, as a matter of English,

the misleading or deceptive hand signal, or the

misleading or deceptive statement by the foreman in

this case as being an unfair practice. It is neither

a practice, nor something which is unfair. It may be

something which gives rise to a tortious liability; it

may be something which is undesirable, but the phrase

is not one which normally applies to it.

The use of the words trade and commerce in section 52 is of some interest. When one goes through

the whole of Part V, between section 52 and section 59 -

it is not the whole of Part V, the relevant part of Part V - every one of the original sections uses the

words, in trade and commerce: every one of the items

of consumer protection in that ?roup uses those i:·wrds. In the

Act as it now stands, to the extent that one can look

at the Act as a whole today, rather than its original

form, there is one exception to that, and that is

section 53B. Section 53B is the section which deals
with misleading or deceptive conduct in relation to

the offering of employment; the type of case where

at home in one's spare time, that sort of misleading	one is promised that one can a thousand dollars a day
and deceptive conduct .. ) And it is interesting that that section omits the words, in trade and commerce. There
is, I say:

A corporation shall not, in relation to

employment that is to be, or may be, offered
by the corporation ..... engage in conduct liable

to mislead persons seeking the employment as to the availability, nature, terms or conditions -

et cetera.

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So when Parliament came, in 1978 and the

amendment in 1986, to put in section 53B, it was

apparently of the view that the reference to

trade and commerce was inappropriate when it was

talking about consumer protection in relation to
offers of employment, although all other sorts of

consumer protection were to be in trade and commerce.

It was not necessary for consitutitional power because

these cases all involved the corporations power, with

one qualification arising out of section 6, to which
I will come.

It cannot have used the words, in trade and commerce, in order to obtain the maximum reach of the

constitutional power, because had it done that it would

no doubt have used words like, "with respect to", so

as to bring in the full scope of section Sl(i), and

it is interesting that section 6(2)(h), which is one of

the sections dealing with the extended operation of
the Act, gives the sections in this part the

operation they would have if it were not a corporation

engaging in the conduct but a person. So there is

extended operation given to the sections outside the

corporations power, where one can come under, with

section 6(2)(a) the trade and commerce power, or the

Territories power, section 6(2)(a)(iii), or

section 6(3)(a), the postal and telegraph power; but

the Parliament has not used the full extent of the

trade and commerce power and we submit that that

failure is probably deliberate.

(Continued on page 11)

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MR BENNETT (continuing): Of course, if the decision below

were to stand one consequence would be that if

the respondent had sued the foreman alone

there would be a real question of constitutional

power because that would not be under the
corporation's power. It would be conduct engaged
in by an individual and only the trade and
commerce power could have supported it.· One

would have to find the interstate elements and

would have to find various other things.

But it would be very surprising if Parliament

had intended to create liability in persons of

that sort under the guise of a section dealing

with consumer protection as its basic

subject-matter.

DEANE J: What is the section, Mr Bennett, that would apply

to the foreman?

MR BENNETT:  One would start with 6(2)(h). One would then

have to find some other head of constitutional

power to - - -

DEANE J: No, 6 (2) (h) was what I ·was, in fact - - -

MR BENNETT:  Yes. It is interesting also that there is no

subsection in section 6 having the converse effect.

Section 6 does not say that the Act has the effect

it would have if the reference to trade and

commerce were omitted which rather suggests that

the reference to trade and commerce was not put

in for the purpose of invoking constitutional

wonders what it is, and what it is, we would

power, but rather for some other purpose.

submit, is very clear. It is the need for

consumer protection that normally arises in

relation to trade and commerce and not in relation

to, for example, private affairs or internal matters

within employment.

I want to deal very briefly now with the

constitutional context. This is not a major part

of my argument. I deal with it really only in

paragraph 4 and to a lesser degree in paragraph 5

of the submissions. I will just remind

Your Honours very briefly of what has been said

about this sort of extension of trade and commerce.

In looking at this one should bear in mind

the submission I have made in paragraph 6 which

is that the cases based on section Sl(i)

arereally a fortiori to the present situation

because the words "with respect to" are wide words.

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There is a greater width normally given to

constitutional power and, of course, there is

the width of the express and implied incidental

power. So, these cases are very much a fortiori

to the present one.

In the MARGARINE cases, as Your Honours are

aware, the trade and conunerce power was not

extended back to manufacture.	I simply remind Your Honours
of one or two very short· statements.	In GRA.'l\1NALL V

MARRICKVILLE.MARGARINE PTY LTD, (195!+-5) 93 CLR 55,,

at page 71 point 9, in the judgment of four of the

five members of the Court, four lines from the

bottom:

It is of course obvious that without goods

there can be no inter-State -

trade -

or any other trade in goods.

No doubt without labourers this company could not

engage in its trade and conunerce.

In that sense manufacture or production

within, or importation into, the Conunonwealth

is an essential preliminary condition to

trade and conunerce between the States in

merchandise. But that does not make

manufacture production or importation trade

and conunerce among the States. It is no

reason for extending -

section 92, et cetera. And at page 77 in the

same judgment, at the top of the page, Your Honours

said:

(Continued on page 13)

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1:1R BENNETT (continuing):

Nothing which has been said above implies that

under the power conferred bys. 51(i) of the

CONSTITUTION to make laws with respect to trade

and connnerce ..... the Commonwealth Parliament

can never reach or touch production. In the

first place, the power is to legislate with

respect to trade and commerce. The words "with

respect to" ought never be neglected -

and so on.

In the next place, every legilsative power

carried with it authority to legislate in

relation to acts, matters and things the

control of which is found necessary to effectuate

its main purpose -

and then they go on to say:

But this principle is entirely foreign to such

a provision ass. 92 -

and we would say even more so to a provision such as

section 52 of the TRADE PRACTICES ACT. In BEAL's

case, and again two very short passages. It is reported in 114 CLR 283. At page 306, point 6,

Mr Justice Menzies says:

In my judgment, to manufacture margarine in

New South Wales against an order -

for a person for interstate delivery -

is not to engage in inter-State trade. There

is, of course, much falling within the
description of inter-State trade and commerce

involved in the defendant's business ..... A

manufacturer is usually a trader because part

of his business is to sell his products but

and it is an error to treat all aspects of	to manufacturer is not, of itself, to trade
the business of manufacturing to meet orders
as trading.
There is a reference to the earlier case.

Thirdly, may I remind Your Honours, going back a long way, of the TRAMWAY's case, 4 CLR 488 at 545 -

the first volume of volume 4 - where, almost
anticipating the present problem, in the judgment of

Sir Samuel Griffith with which,· I think, the other manbers of the Court agreed, His Honour said, at page 545, line 3:

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As at present advised, we are of opinion that the legislative authority of the Commonwealth Parliament under the power in question, so

far as regards wages and terms of engagement,

does not extend further - if it extends so far,

as to which we reserve our opinion - than to

prohibit for causes affecting interstate traffic

specific persons from being employed in such

traffic. It cannot, as already said, be

disputed that the plenary powers of the State

legislatures with respect to matters within

their competence extend to everything done -

Well, that is going on to the doctrine which is

no longer entirely accepted but the first part of that, dealing with trade and commerce, suggests a

reservation on it extending to matters concerning

employment. I will not take Your Honours to the

waterside workers' cases in the 20s and 30s but,

of course, they were involved with something far more

directly concerned with interstate trade. There one

was dealing with legislation which was perceived as

preventing operations which might otherwise be a

barrier to interstate trade. That is very different

to going right down to the order given by the foreman

to the labourer and regulating that. It does not,

we would submit, go that far.

Even the wide dicta, which is always cited in

these cases, appearing in MACARTHUR's case in

28 CLR - I only remind Your Honours of this passage

because virtually every case on trade and commerce

refers to it to show the width of the phrase - but

even this does not go so far as has been held in

the present case.

(Continued on page 15)

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MR BENNETT (continuing:) It is 28 CT.R 530 at page 547 and it is

line 3 where Their Honours say:

All the commercial-

I stress the word "commercial"-

arrangements of which transportation is the

direct and necessary result form part of "trade

and commerce."

All the commercial arrangements of which it is part.

The mutual connnunings, the negotiations,

verbal and by correspondence, the bargain,
the transport and the delivery are all, but

not exclusively, parts of that class of relations

between mankind which the world calls "trade

and commerce."

That is talking about what trade and commerce is . It is

not talking about how far into the specifics it can

extend and we would submit that sentence would not

justify an extension into orders given by one employee

to another in the course of employment.

DEANE J:	But does that not really take you no further than this that the legislative power is not a power with respect to everything that happens in trade and commerce?
MR BENNETT:	Yes, Your Honour.

DEANE J: But that tells us nothing as to the meaning of "in

trade and commerce.

MR BENNETT:  No., it does not, Your Honour, e:xcent that it

indicates that a line has to be drawn"and the essential
part of trade and commerce is really the commercial

activity. It shows us that and that gives a clue as to

how one should restrict the extension to which one can

take the words.

BRENNAN J:	How do you formulate the restriction?
MR BENNETT:	A number of cases give formulae which I will be coming

to and suggesting they may be adopted. The phase,we would

submit,which perhaps goes closest to it is it must be

directly a~d proximately related to the commercial

activities which constitute the trade and commerce.

(Continued on page 16)

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MR BENNETT (continuing): "Proximately" involves the question

of degree which has to be looked at, but whatever
that question of degree is it cannot be as extensive
as this. It cannot extend to the hand signals and

the directions to employees.

BRENNAN J:  What would you say of an advertisement by an

interstate carrying company seeking drivers to drive

their well-maintained and perfectly up-to-date

fleet when, in truth, the vehicles are ramshackle

and dangerous?

MR BENNETT:  That would certainly be section 53B, of course.

We would submit that would not fall within section 52

although, if it did, it would still be a long way short

of the present case. It is closer to trade and

commerce because it is closer to being a prerequisite

to the activity. The example which perhaps illustrates

it most clearly is an example, if one thinks of the

operations of an airline. Clearly the purchasing

of aeroplanes from interstate - clearly the purchasing

of aeroplanes is interstate trade and the conduct of

flights from Sydney to Melbourne for reward is

interstate.

There is a borderline situation similar to

Your Honour's example if, in the course of an airline

dispute with a union, a misleading or deceptive
statement is made by one side to the other in the
course of negotiations. It might be said because that
is a statement made in the context of trying to get

interstate services running it is so closely related

and so proximate as to be within section 52; that

would be a borderline case. We would submit it would

be on the wrong side but if it is on the right side

it is a long way short of this. The case which

would be clearly outside it is where the pilot on the

flight says to the flight crew or to the passengers,

"You may now unfasten your seat-belts" when in fact

it is unsafe to do so, that is misleading or deceptive

conduct which is completely outside the trade and

commercial activity. It is too far down the line

and too far away from the core activity with which

one is concerned.

McHUGH J:  Suppose in this case the representation had been

made not only to the employee but to the owner of
the building, both being present at the same time.

Would it have been a representation in trade and commerce to the owner of the building?

MR BENNETT:  The owner requiring to be satisfied for some

reason or concern for the contract of the parties

that the work was safe?

McHUGH J:  Yes.

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MR BENNETT:  That would probably be on the other side of the

line, Your Honour. That would probably be in trade

and commerce.

McHUGH J:  But so far as the employee was concerned it would not

be, on your argument?

MR BENNETT:  That is so, Your Honour, yes. There are two

articles by Your Honour the Chief Justice to which

I will merely give the Court a reference.	I have
them if Your Honours wish to have them.	One is an

article in 62 ALJR 752 entitled ''The Australian

Constitution 1901-1988" and the other is an article

entitled "The Role of a Constitutional Court in a

Federation;	A Comparison of the Australian and
United States Experience".	I will give Your Honours

reference to that in a moment. It is an address given to the University of Virginia law school.

I will hand copies of those to Your Honours, although

I will not take Your Honours to them now.	The
importance of the - - -

MASON CJ: 

Do they have any relevance at all to this question?

MR BENNETT: 

Yes, Your Honour. What they point out is that in

the United States where the trade and commerce power
has been very widely construed it extends down to the

sort of activity involved in this case but that

perhaps because of the width given to the

corporations power and the interstate industrial
dispute power it has not been necessary in
Australia to construe the trade and commerce power

so widely and it has not been so construed. It is

really that point which is made in both articles.

(Continued on page 18)

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MASON CJ:  I can understand why you are not referring us

to any specific passage in the articles.

McHUGH J: But, Mr Bennett, under the Commonwealth CONCILIATION

AND ARBITRATION ACT there were certain tribunals

which were set up to deal with the conditions of

pilots. They depended very much on the trade and

commerce power.

MR BENNETT:	Your Honour, there are two things I would say about that: first, they could probably be justified
under the CONCILIATION AND ARBITRATION power but,
secondly - - -
McHUGH J: Well, there is no interstate dispute.	I mean,

there are plenty of them employed overseas and

the same with seamen.

MR BENNETT:  Yes. Those powers, we would submit, Your Honour,

are in a closer degree of proximity to interstate

trade because if one - it is rather like the waterside

workers cases in the thirties, no doubt there was

a perception that unless one had these facilities

available, the seamens' compensation or the pilots'

tribunal, one would have the risk of interstate

trade being stultified and ceasing because of industrial

action and, therefore, it was perceived that there

was a direct and proximate relationship between what

was being done and interstate trade and commerce.

That is a long way short of saying that if

an employer on a particular ship makes a statement

to an employee which is misleading and deceptive

and causes injury thereby that that can be controlled

under a power to control trade and commerce. It

is a question of degree, Your Honour, it is not

a matter of a black and white line but we would submit

that the line has to be drawn between those two.

(Continued on page 19)

C lTl 3/1 /ND	18	6/2/90
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:MR BENNETT (continuing): There is one reference which I

should remind Your Honours in the judgment of

Mr Justice Dawson in STREET V BAR ASSOCIATION OF QUEENSLAND. Your Honours will recall that

Justice Dawson was the only Justice to deal with

Serri.on 92. And the case is reported in

63 ,AI..JT'. 7. and at page 745, it is also , aa .AL:P~,

where it appears at page 372, but at page 745 in

the first full paragraph Your Honour referred to

two arguments that were made under section 92.	One
was that a barrister's activities and his
relationship with his client was itself trade

and commerce, the other was that if the client was engaged in trade and commerce, that was sufficient

to bring the barrister's activities within those

words. And Your Honour said at D:

Both of these contentions are, I think,

fallacious.

And Your Honour came to the second contention,
adjacent to the letter G on page 745, where
Your Honour said, in the paragraph beginning

"A barrister":

Nor does the fact that a barrister may

undertake cases of a commercial nature

involve any alteration in the professional

quality of his practice. A barrister

appearing for or advising a person engaged

in trade does not thereby become a trader

any more than a barrister engaged in a

criminal case becomes a criminal. The

essential nature of a barrister's function

remains the same whatever the jurisdiction

in which he is engaged and does not become

clothed with the character of his client's

pursuits. True it is that a court's function

may be seen as incidental to the trade or

commerce of parties who invoke its jurisdiction,

before it. But it could hardly be questioned	as may the exertions of a barrister appearing
that a court is not engaged in trade and commerce even when dealing with cases of a commercial nature.

No doubt delicacy prevented Your Honour giving

the example of a judge dealing with a criminal case.

But the importance of that passage is that by

engaging in a service to an activity whether as

a barrister or for that matter as an employee, the

activities that one engages in are not themselves

given the character of the overall activity. The

barrister is not engaged in trade and commerce, even

though his case may be essential to the trade and

commercial activities of his client. The labourer

CIT14/l/CM	19	6/2/90
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on a building site is not engaged in trade and
commerc~, even though the employer maybe when it

negotiated the building contract and accepted a fee to build a building. In each case there is

a remoteness between the subject activity and the

trade and commerce itself.

BRENNAN J: There is a radical difference between a barrister

engaged in litigation for the enforcement of

vested rights and somebody who is engaged in

a process which is likely to give rise to rights

which are susceptible of enforcement.

MR BENNETT:  Yes, but,Your Honour,one would not draw the

distinction in Justice Dawson's proposition

between a barrister who is seeking a discretionary
remedy so that the client could engage in trade
and commerce and a barrister seeking to enforce

a vested right of his client by submissions to a

court.

BRENNAN J: What would you say of a barrister who is, in the

course of his retainer, engaged in negotiating on

behalf of his client?

MR BENNETT:  Those activitie~ viz-a-vis the other party,

would probably be, by virtueof vicarious liability,

his client engaging in activities of trade and

commerce.

(Continued on page 21)

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MR BENNETT (continuing):  In so far as those activities involve

the relationship or discussions between the barrister

and his client they would not.	So one would distinguish
the two aspects of his activitiy.	When the client

says, "Try and get $100,000 for this building",

that would not be in trade and commerce. Where the

barrister goes and makes the offer to the other
barrister to settle the case in payment of $100,000

for the building, that might be in trade and commerce.

The barrister's submissions in court certainly would not be.

McHUGH J:  How do you identify trade and commerce? When

the grocer is stacking his shelves with groceries,

is he engaged in trade and commerce at that stage?

MR BENNETT:  No, Your Honour. He is engaged in trade and

commerce when he engages in the selling process
and perhaps in advertising to consumers, perhaps

in purchasing the goods but not when he engages

in purely internal activities like stacking them

in his shelves or sweeping his floors. It is a

question of where the line is to be drawn. And

the word "in", bearing in mind the commercial nature

of trade and commerce, provides the best clue that

we have.

Turning to paragraph 7 of my submissions,

I should propose now to take Your Honours briefly

through some decisions of the Federal Court. The only one which we submit is wrong is the decision

of Mr Justice Wilcox in PATRICK V STEEL MAINS PTY

LIMITED, 77 ALR 133, at 136. And, indeed, many

of the later cases refer to this decision. It

is the one which has given rise to much of the

problem in this area.

What happened in this case was that an employer made what was said to be misleading and deceptive

representations to existing employees about the

company's intention to operate a factory in a

particular area with a view to persuading those

employees to accept employment in that area in

a branch office being opened and it was said that

those negotiations, those statements by the employer

to the employees, were in trade and commerce.

The whole of the relevant ratio appears in

one paragraph on page 136 where, at point 5,

His Honour said this:

I see no reason in principle to exclude

cases such as this from the operation of

s 52. In negotiating with employees, or

prospective employees, about future employment

a trading company acts "in trade or commerce".

C1Tl5/l/ND	21	6/2/90
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That is the bare statement and we, with respect, take issue with it.

These are words of the widest import including

all "the mutual communings, the negotiations,

verbal and by correspondence, the bargain,

the transport and the delivery" -

Those are the wide words in McARTHUR's case but,

of course, what is omitted is the word "commercial"

which appeared just before them in the passage

when I took Your Honours to it and what has been

done is to take the end of the sentence out of

context. And there is refer to KU-RING-GA!.

A statement made in negotiations about

employment is, in my opinion, capable of being

conduct, in trade or commerce, that is

misleading or deceptive ..... In a case where

a statement is made to the prospective employee

with the knowledge that the statement will
be passed on by him to his wife the statement
is capable of being misleading or deceptive

conduct qua the wife, even though the employer

does not communicate directly with her.	In
either case ..... damages may be recovered. And there is no other reasoning

for that conclusion.	We would respectfully submit
that goes too far.	And yet it is this case which

is substantially referred to in the later cases,

none of which goes as far as this and most of which

can be explained or distinguished on other bases.

But there is the distance - if one may use the
word - between the conduct in that case and the

trade or commerce in which the company was engaged

is very great.

(Continued on page 23)

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MR BENNETT (continuing:) It is not indeed completely clear

whether His Honour is saying that the negotiations
with the employer, between the employer and the

employee, are themselves some form of trade and

commerce between employer and employee or whether he

is saying the relationship between them and the

activity of the company is sufficiently close to

make it trade and connnerce. On the assumption that

it is the latter that is being said we submit that

the case is simply not correct. If it is the first
that is being said it is not relevant to this case

because that is not the way the case has been put

against us. If it is I will deal with it in reply.

There are a number of cases which I can deal with more

briefly where there is "trade or commerce" in a

larger single item. This involves a little bit of

a stretch of the concept of a consumer but nevertheless

it is clearly within trade and commerce. Perhaps

the clearest of these is, the case is difficult to

pronounce, the decision of the Full Court in BEVANERE

PTY LTD V LUBIDINEUSE, (1985) 7 FCR 325 at page 332.

I am sorry, Your Honours, I have a different report and
I just have to find the page. This was a case involving

the sale of a beauty clinic and the ratio bringing

it within the concept of trade and commerce appears in

the first paragraph on page 332 at the top of the page

where Their Honours said:

Moreover, as - - -

MASON CJ:  Can you identify it in the judgment because I have got

the Awsttalian-I:aw-Journal Report, please, Mr Bennett.

MR BENNElT: Yes, page 341, Your Honour, line 18.

MASON CJ: Thank you. How far into the judgment, is it,

Mr Bennett?

MR BENNETT: It is page 332 in the FCR, 341 in the ALR.

BRENNAN J: What volume of the Australian Law Reports?
MR BENNETT:	Volume 59, Your Honour.

MASON CJ: You might read it out for us, Mr Bennett, we have

not got 59. We have got 55, at first instance.

MR BENNETT:  I am sorry, Your Honour. I gave the reference in,

I think, to the Federal Court Reports.

MASON CJ: Yes, you did.

MR BENNETT:

Moreover, as we have already pointed

out, it by no means followed from the appellant's

ClT16/l/PLC	23	. 6/2/90
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sale of the beauty clinic in the Strand Arcade

that it would not engage in other commercial

activities elsewhere. It is not uncommon for

a corporation to acquire and dispose of businesses
during the course of its corporate life and we

see no sound reason for excluding an obviously

commercial transaction from a corporation's conduct

in trade or commerce merely because the transaction

is the sale of the corporation's principal, or

sole, business undertaking.

So what is done there is to say not that giving the

beauty treatment to customers is trade and commerce and

selling the business is in some way related to that and therefore in that trade and commerce - that is not what is said - what is said is that the trade and commerce

is the trade and commerce in beauty clinics and maybe

there is only one transaction but it is the company

disposing of its business and that is in trade and

commerce.

There is the question about consumers: there

is the question about the sole: transaction. Neither of

those are really relevant to the argument I am putting.

What is important is the case is not authority for extending trade and commerce back from the business of the shop to activities having a distant relationship with it.

(Continued on page 25)

C1Tl6/2/JL	24	6/2/90
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MR BENNETT (continuing):  The FINUCANE V NSW EGG CORPORATION,

I will not take Your Honours to,	I will just tell
Your Honours about it - it is 30 ALR 486.	T~at was

&:ease involving the sale of an egg run and very

much the same sort of thing. One does not need to

regard it as being related to trade in eggs, although

part of the judgment suggested that was one way it

could be put. One can regard the case as a transaction

in the sale of egg runs and, again, that becomes a

larger part of commercial activity.

BRENNAN J: Is there a consumer in such a case?

MR BENNETT: Probably not, Your Honour -

BRENNAN J: Well then, how does that - - -

MR BENNETT:  - - - if you take the very broad meaning of

"consumer". He was a consumer, I suppose, in the sense that the type of business he was acquiring,

as has been held in the Industrial Relations'

cases with truck drivers, is very close to being

an employee. The line between the man who is

employed ·to deliver eggs and the man who buys an egg run and delivers eggs on a very strict basis is, as a commercial matter, a very fine one. As a

legal matter, of course, they are worlds apart:	one
is an employee; one is an independent contractor.

But, in that sense, one might say he was a consumer in the sense in which the word is used in

section 53B. He was someone acquiring a small

business in which he would work .and as to which

representations were made.

BRENNAN J:  Do you equate consumer protection with

acquirer's protection?

MR BENNETT: That seems to be done, certainly by section 53B

and in some of the sections in Part V, 53B is,

perhaps, the clearest and FINUCANE's case, as a
commercial matter, is not distant from 53B.	Of

course, there the misleading or deceptive statement

was by the Egg Board itself. What happened was:

there was an egg run being sold; the Egg Board had

to approve the sale, the egg run being a run under
which one delivers eggs for the Egg Board; the

Egg Board knew it was about to abolish the system and go over to a system under which there would not be any egg runs so it would be worthless in two

weeks and, in the course of discussions between the

chairman of the Egg Board and the purchaser, this

was not mentioned and that was said to be misleading

or deceptive conduct.

C1Tl7/l/DR	25	6/2/90
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In a sense that is the negotiations between

the person who will be supplying the business and

the person who will be undertaking the business. It

is, in that sense, perhaps similar to BEVANERE's case.

TOOHEY J: What of the business competitor who relies on

misleading and deceptive conduct in what would

otherwise be a passing-off type action? How does

that person answer the description of "consumer"?

MR BENNETT:  He does not, Your Honour. The cases on that have

made it very clear - the HORNSBY BUILDING case and

PARKDALE v PUXU - that he is allowed to sue, not as

the person for whose benefit the section was enacted
to protect, but as a person who is enforcing the
protection of the consumer who is misled by the
misleading statement about his product. So, in the
HORNSBY case for example, the Building Information

Centre, which is passed off, is not itself the person

who is intended to be protected. The person to be

protected is the consumer who would confuse them but,

because of the width of - I think it is - section 80,

any person, including the trade rival, is entitled

to bring the proceedings.

McHUGH J: What about the cases concerning take-overs and

statements in circulars sent to shareholders? There

is a line up of cases in the Federal Court on that

which - - -

MR BENNETT: Yes, that is dealt with in the next paragraph,

in paragraph 8. The leading one is ORISON V STRATEGIC

MINERALS. They are to be explained on a different

basis, Your Honour. That is a case - and I will come

to it in a moment - where there is a prerequisite to

an act of trading - the same as the ministers' consent

cases. Where one has an act which is an essential

act in trade and connnerce of trading, carrying on
business, buying shares and one engages. in misleading

or deceptive conduct in relation to a necessary

prerequisite to that Act, such as shareholders'

consent, ministers' consent, and so on, then there are

a. string of cases which have held that is in trade and connnerce.

(Continued on page 27)

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MR BENNETT (continuing): Then, there is a string of cases

which have held, that is, in trade and connnerce.

What I have said in paragraph 8 is that those

decisions may or may not be correct. The Court

may find they fall on one side or the other of the

line, but if they fall on the side of the line which

makes them correct, they are distinguishable from

this situation because of the proximate relationship

between a necessary precondition and the activity.

It is a little like the waterside workers

cases of the 1930s again: the view was one would not

be able to have interstate trade unless one controlled

who worked on the wharfs, and therefore there was

a need,as part of the trade and connnerce power, to

control it.

BRENNAN J: Mr Bennett, I am not sure that I am following

precisely the course of your argument. I apprehend that

there are two extremes, as it were; one is that

Part Vis a consumer protection part, and that the scope of that Part, or Division 1 of that Part, is

limited to the protection of consumers.

MR BENNETT:  Yes, Your Honour.

BRENNAN J: Now, if that argument is to prevail, one needs to

understand what is the scope of the term "consumer", and

in particular, for example, does it include the

pur,chasers of businesses? The other argument is based
not on "consumer", but trade and connnerce, and in some
way some activities are said to be in trade and

connnerce and others are not.

MR BENNETT: Yes.

BRENNAN J: Well now, what is the overlap between those two

arguments, if there is one, or are they two distinct

arguments?

MR BENNETT: I have put the consumer argument in its pure form

in the very last paragraph. That I have put separately.

What we submit is that in looking at meaning of the

words, trade and commerce, in section 52, one

bears in mind that this was a section primarily

designed for the protection of consumers, and perhaps,

if I dare to coin the word, quasi-consumers. The word

may have, in that sense, a fairly broad type of meaning.

BRENNAN J: Which word?

MR BENNETT:  "Consumer". But one is dealing with activities

involving people engaging in trade and commerce.

Whether they do so by acquiring goods in the traditional

sense of consumers, or in the slightly broader sense of

acquiring small businesses, and maybe even in the

larger sense of engaging in major commercial transactions.

ClT8/l/FK	27	6/2/90
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But one is basically concerned with the type of

activity where a person is concerned with a trading

or commercial organization acting in a trading or

commercial capacity, and one is not concerned with

something which is foreign to that, and in the present

case there is no doubt that we have a company engaging

in a trading or commercial activity: it is building

a building, and no doubt charging a fee for it, but

what one does not do is then go right down beyond

that into the internal relationships involved and say,

"Well, what the builder says to his employee is in

trade and commerce, or what takes place between the

driver and the motorist behind him is in trade and

commerce". One eliminates that on the basis that it

is too remote from the core activity which is clearly

trade and commerce.

Now, the way we use the consumer heading is

simply to show the type of conduct and the type of

activity in general	which was being covered by
these sections.

BRENNAN J: Well, must you not go further and say, "The type of

trade and commerce which is covered by them", because

otherwise it is the trade and commerce notion which

expands the denotation of consumer, and once you
acknowledge that that expands the denotation of
consumer you can find no limit to to consumer save that

which is to be found in trade and commerce?

MR BENNETT: Well, except which is to be found in the words,

"in trade and commerce", rather than trade and commerce.

BRENNAN J: Well, be it so, but rhe "in" depends upon the

dimensionyou give to trade and commerce anyhow.

MR BENNETT:  Yes, but one can, with a little bit of stretch

say that where a person buys a business, he is a

consumer of the business that is being sold. It would

take a much bigger stretch to say that the employee

at the work face is a consumer of instructions given to him by the foreman.

(Continued on page 29)

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MR BENNETT (continuing):  The one is simply going back a lot

further and is more foreign to the concept of consumer.

In other words, if the Court rejects the proposition

at its highest level, which is that all these cases

are wrong and we are confined to consumers in some sense, assuming the Court rejects that and accepts

the fairly long line of Federal Court authority
saying it extends beyond pure consumers, then one
still says the type of trade and commerce being

talked about is trade and commerce which, in a general sense, involves the consumption or the

acquisition by someone of goods and services for

reward and, if one does not find that, one simply

has not got the relevant type of trade and commerce

and one certainly does not go into matters which

might conceivably be the subject of federal power,
as in the waterside workers' cases and say~ _,

"Well, that's the sort of thing which seciton 52

was concerned with."

The LEGION CABS case is the other example

of what I have referred to in paragraph 7. That

was a case where - again, I need not take Your Honours

to it. It was a case where - it was dealing with

the restrictive practices provisions of the Act.

There was an agreement between a co-operative and

an oil company under which the oil company provided

radios for the taxis and the taxis had to use its

petrol and the way that was enforced was that the

rules of the co-operative said, in effect, "The

members are required, as part of the co-operative's

internal rules, to use a particular brand of petrol

in exchange for getting the radios.", and that

was held to be in trade and commerce.

The argument which was put against it was,

"This is internal to the organization". The answer

the court gave was, "Even though it may be in the

form of an internal rule of a co-operative, in

fact, it is a transaction under which radios are

supplied and in exchange a particular brand of

petrol has to be purchased. That agreement is	a commercial agreement even though it is made between
a co-operative and its members and even though
it is enforced through the rules of the co-operative.
It is still a commercial transaction.':'

Very much the same sort of reasoning appears

in the KU-RING-GAI case where Your Honours will recall .

the loan transactions between a terminating building

society and its members were held to be commercial

in nature because one looked at the transaction

rather than the context in which they occurred. Here,

of course, there was nothing at all commercial

about the communication between the foreman and

the labourer.

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If I can move to - MENHADAN was simply a

HEDLEY BYRNE case where a bank gave a reference

to a trader and the court regarded that as being
in the trade and commerce of the bank. It is important
to note that the ratio was not, that it was the

trade and commerce of the traders and that the

bank's representation about the credit worthiness

of one of them was in that trade and commerce.

The court did not go that far. It did not stretch

the word "in". It simply said it was the bank's
trade and commerce by the giving of advice as

part of its overall services for reward.

DEANE J:	But do you dispute that the words ''in trade and commerce" can have a meaning which would cover this? I mean, does it not come down to whether
they are used, as it were, subjectively or objectively in the sense that on one meaning they can mean
in the course of carrying on trade and commerce
where this case would be caught.  In the other approach
they could be used objectively in the sense of
referring to those activities which objectively constitute trade and commerce, in which case this
may not be caught.
MR BENNETT:	There are no doubt constructions, and some of

commerce, to activities, for example, of a window

them have been adopted in America, in the United

cleaner who cleans the windows of a building in

which trade and commerce is carried on, and to

the truck driver giving the hand signal. The truck

driver giving the hand signal is the clearest example
because literally it would fall squarely within

the section.

DEANE J: Well, that is obviously so.

(Continued on page 31)

C1Tl9/2/ND	30	6/2/90
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MR BENNETT:  And yet, we would submit that giving the section

a construction in its context, looking at the

surrounding circumstances of 1973, looking at the

general structure of Commonwealth and State

legislation at the time and the clear intention of

the Act as a whole, it was simply not intended to

deal with truck driver~ who gave misleading and

deceptive hand signals.

DEANE J:	But if you are going to exclude the truck driver or
the haulier who gives a hand signal when he is not going to turn at all, you have to do it on some basis
of construction. Now, I just cannot see that the
words in trade and commerce are not capable of
catching him.
MR BENNETT:	Your Honour, I have to concede that but the,

capable of but - - -

DEANE J:	I have not followed, apart from your consumer
argument, where the other argument leads to, unless it leads to some notions such as trade and commerce
is not used there in terms of referring to somebody's
"trade or commerce". It is used in terms of the objective notion of actions that, of their nature, constitute trade and commerce. In other words, it
is referring to an area of activity, rather than what
the individual does in the course of his trade and
commerce.
MR BENNETT:	We submit that is not the construction which the

section would have. Certainly the words are capable

of that meaning but with all statutory provisions

one must look at their purpose and one does not always

apply a simple literal construction to apply to

every case. The example that was always given at law

school, I think, was the by-law which says, "No truck

shall enter or be in a particular park" and someone

wants to erect in the park a memorial to soldiers
who died driving trucks in the war and put a truck

on a pedestal in the middle of the park.

that was not what the by-law was intended to deal Clearly,

with and although it might literally cover it, one

would construe the by-laws saying, "No, it means

you must not drive a truck into the park or park it in the park. It does not mean you cannot put it on

a pedestal in a memorial in the park". It is that

sort of case.

(Continued on page 32)

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MR BENNETT (continuing): One sees the words in trade and

commerce and that: one must not en~age in misleading or

deceptive conduct in trade or commerce, and one says

well literally, if a driver gives a hand signal

while engaging in interstate trade and commerce,

that is the trade and commerce described the area.

He is in that area. The activity is misleading or

deceptive conduct. He has done that so we are within

the section. But we would submit that the appropriate

method of construction is to say, reading the section

as a whole, it is concerned with commercial dishonesty.

It is concerned with a situation where in relation to

trading or commercial activities, a person engages

in misleading or deceptive conduct which is misleading

or deceptive in relation to the trading or commercial

activity. And then the purpose of the section is

achieved. One understands why it is in a consumer

part of the Act, even if it goes a little beyond

consumers because it is dealing with the general

area of fraud, dishonesty, in commercial dealing

and the section is construed according to its effect.

If ones construes it the other way it immediately

gets into all sorts of other areas of law including

industrial relations, safety in the work place and

even motor vehicle. accidents and all sorts of areas

where one would have thought it highly unlikely that

the Parliament intended to interfere.

One then has the problem, of course, of the extent to which State legistration would be inconsistent with

it. To what extent does one say, for example, if a

person sues under a State negligence statute - assuming

there was a negligence on the highway statute rather

than common law - that it is overridden by section 52

where the conduct sued for is misleading or deceptive

conduct by a driver. One asks the same question in

relation to the work place.

We would submit that is simply taking the section

far beyond what was intended merely because a literal

application of one meaning of the words would permit

that to be done.

DAWSON J: Can it depend upon the relationship between the

persons involved in the conduct? For example, the

relationship between the consumer and the manufacturer

or distributor is a commercial relationship and what
takes place within that relationship will be in trade

and commerce but the relationship between an employer and an employee is not a commercial relationship. It is a different relationship and what takes place within

that relationship is not trade and commerce. More

obviously, a person giving a traffic signal is giving it to persons with· whom he is not in any commercial

relationship and therefore it is not in trade and

commerce.

ClT21/l/LW	32	6/2/90
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MR BENNETT:  Yes, I would, with respect, adopt that with

one slight qualification and that is the qualification

recognized in the KU-RING-GAI case and the

LEGION CABS case, that one can have a relationship

such as company and shareholder, co-operative and

member or ter.m.inating building society and member,

in relation to which a commercial transaction may

take place within that relationship. Subject to

that qualification, which of course does not apply

here, I, with respect, totally adopt what

Your Honour puts.

The distinction which.Your Honour Justice Deane

puts to me as a subjective or objective distinction,

could also be put in terms or qualitative or

quantitative. There may be a wide qualitative

connotation of trade and commerce, in a sense that

many activities are covered by it. But when one: gets to the quantitativ.e thing of how far down into

the sub-activity one goes in relation to each of those,

a different question arises. Paragraph 8 I deal

with a different category of cases, which I touched

on earlier in answer to a question which Justice McHugh

asked me and the princip~l case in this section is

the ORISON case where there was a company trading

in shares. It was involved as an offerer

in a take -over transaction and it was said to have

engaged in misleading or deceptive conduct by

statements made to its shareholders in order to

induce them to vote for a special resolution

approving the transaction.

Now that, we submit, can be readily distinguished

on the basis that there was such a close relationship

between the shareholder's vote and the trade and

commerce in the shares, that it was in trade and

commerce. And that is really what Mr Justice French

said at page 157. At line 30 His Honour referred to

BEVANERE V LUBIDINEUSE, the sale of the beauty parlour

and the KU-RING-GAI case and the BANKING case and

then at line 50 His Honour said this: '

A fortiori in the present case, the conduct of

Strategic in acquiring a significant asset -

that is the shares in the take;..over offer -

was conduct in trade or connnerce.	The
antecedent conmru.nication -

that is to the shareholders who have to vote to

approve ·it for it to occur -

so closely related and necessary to the

acquisition was also, in my view, within the scope of conduct in "trade or connnerce 11 •

CIT22/l/CM	33	6/2/90
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What we say about that is, whether it is

actually on the right side of the line or not,

one does not really have to decide. If it is,

it is clearly a special category of case, rather

analogous to the weters~de workers cases, where

one says here is a necessary prerequisite to an

act of trade, that is very close to it. That is
like the example I gave earlier of the airline

management talking to the president of the Pilots

Federation about a return to work. It is a

necessary prerequisite and proximate to interstate

trade. Now we do not concede that exception, but

if it is an exception, it explains a number of
cases and it does not arise in this case.

The most extreme example of that exception being accepted by the courts. is the decision of

Mr Justice Morling in GLORIE V WESTERN AUSTRALIAN

CHIP AND PULP COMPANY, 55 FLR 310. That case

involved a woodchipping company which made a film

about the woodchipping industry and about how

environmentally conscious it was and matters of that

sort. It was in eifect a propoganda. film on behalf

of the industry as a whole and it was held that that

was capable of falling within section 52. But the

ratio fits squarely within the qualification I have
referred to in paragraph 8, because at page 320,

in the judgment of Justice Morling, at point 5, nine

lines before the end of the paragraph, against the

words "chipping operations" in the margin,

His Honour said this.:

(Continued on page 35)

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MR BENNETT (continuing):

The viability of those operations is

almost totally dependent upon the supply
of timber from the South West Forest. Public

antipathy to the use of the forest as a source

of supply of that timber could impose a serious

threat to the company's future activities

if it were to find expression in political or

other pressure upon the government to change

existing forestry management practices.

Having regard to these considerations I am

of the opinion that the film has been, and

is intended to be exhibited in trade or

commerce.

Again, that is taking that qualification as far as

it can possibly be taken but it is saying they would

not be able to carrying on their forestry activities if

public opinion caused change in legislation so really

it is proximate to that trade and commerce that they

attempt to influence public opinion. It is going a

long way. It may go too far but, even if it is correct,

it is quite distinguishable from this case which is

not in any such sense a prerequisite to engaging in

an act of "trade or commerce".

The third and last of the three cases in that line is MERMAN V COCKBURN CEMENT which is, at the moment,

only reported in (1988) ATPR 40-915. I think I have

copies of that for Your Honours.

McHUGH J:  It is reported in the Australian Law Reports.

MR BENNETT:  I am sorry, Your Honour. I had not picked that up.

McHUGH J:  It is in 84 ALR 521.

MR BENNETT:  I am sorry, Your Honours. We had checked the

references and that one must have been missed.

This was a case in the same line. It dealt with

representations made to a minister about the

imposition of customs duties and, again, one can regard

that as being sufficiently proximate to the trading

and commercial activity. The ratio appears in two

short paragraphs on page 49,839. It is about half-way

through._the passage dealing with trade and commerce

and on page 49,839, first column, second full paragraph,

Mr Justice Lee says this:

The question of whether a submission to

the Minister seeking the commencement of an

inquiry or the imposition of customs duties

are acts in trade or commerce may provide

a different answer. That conduct may bear

the hallmark of conduct in trade or commerce

irrespective of whether the Minister agrees to

conduct such an inquiry or to impose such

ClT23/l/HS	35	6/2/90
Concrete(2)

a duty. It may be regarded as a step

against competition seeking a definite

commercial result or seeking a result in

terms of trade.

Then there is reference to consumers being affected by

it. S~ again, it is going a long way, but a long way

short of this case. It is suggesting there may be

an extension where one has some prerequisite. I have

sought to formulate the exception which these cases

might encompass in paragraph 8 in this way, that

where a person or body has the power to permit or

prevent activities in "trade or commerce" being

carried on, conduct engaged in for the purpose of

influencing that decision is normally conduct in

trade and commerce. Now, as I said, we do not concede

that exception but, if it is right, it explains these

cases which otherwise are inconsistent with my

submissions.

Now, the only case which has dealt directly with the present problem is a decision of the Supreme Court

of New South Wales in WRIGHT V TNT MANAGEMENT SERVICES,

(1988) 15 NSWLR 662. That case first was before

Mr Justice Lee and on appeal before the Court of Appeal.
Mr Justice Lee's decision is at page 662 and the

Full Court's decision is at page 679. This was a

case in which this Court refused special leave for

what might in general be called procedural reasons.

(Continued on page 37)

ClT23/2/HS	36	6/2/90
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MR BENNETT (continuing): There was an application for leave,

I think, at the same time as the application for

special leave in these proceedings.

What happened in this case - this case differed

from the present case in a number of respects.
What was said here was that where an employer engaged
an employee, because the law required him to have

a safe system of work, there was an implied

representation at the time of employment that the

system of work would be safe and, therefore, if

it was not, there had been misleading or deceptive

conduct by the employer. So it was a step beyond

this case in two respects: first, it dealt not

with the activity that was concerned with the trading

or commercial activity, it dealt with the activity

of employing, the engagement of an employee; and,

secondly, it involved as its principal mainstay

the proposition that there was an implied

representation which could be misleading or deceptive

conduct as to a safe system of work.

The majority of the Court of Appeal decided the case solely on the basis of that second matter

and said there was no such implied representation

and Your Honour Mr Justice McHugh dissented. That

issue, of course, does not arise here but it has
the consequence that the two members of the majority
of the Court of Appeal did not deal with the question

of trade and commerce which arises in this case.

That was dealt with earlier by Justice Lee at first

instance, favourably to me, and by Justice McHugh

on appeal, unfavourably to my submissions.

Justice Lee, of course, is not the same Justice Lee

who was involved in the case I just described in

the Federal Court.

The judgment of Justice Lee deals with the question in two sections. He deals first of all

with the meaning of the word "consumer" and with

the fact that the Act seems to be concerned primarily

with consumers and then he deals with section 52

and the limits of those words. That appears at

the bottom of page 674.	At the bottom of page 674
His Honour says this:

The second conclusion which follows is

thats 52 ..... cannot apply to enable the plaintiff

to assert a cause of action thereunder for

the plaintiff as employee is not qua his employer

a consumer -

and that is the other question -

qua his employer he is not receiving services supplied by his employer in trade or commerce.

C1T24/l/ND	37	6/2/90
Concrete(2)

He cannot, therefore, claim that the bringing

of the action aids the protection of a class
of consumers of whom he is one -

and then there is reference to the HORNSBY BUILDING

INFORMATION case. Then at line D, His Honour says,

after dealing more with consumers:

Although the words "trade or commerce" used

in the Act, in my view, are intended to include

every trading, commercial or business activity

carried on and necessarily all those acts

that are done that identify the enterprise

as a trading, commercial or business enterprise,

not everything that appears to have a close

relationship to trade and commerce is necessarily

"in trade or commerce" withins 52 ands 53.
One approaches the words "trade and commerce"
in the same way that the words "trade, commerce

and intercourse" in the CONSTITUTION were

approached in -

McARTHUR. Then there is the passage from McARTHUR.

The expression "conduct in trade or

commerce" ins 52 is not satisfied merely

by pointing to some act or acts which happen

to be done whilst trade or commerce is carried

on.

That is the issue I was discussing with Justice Deane

earlier.

To be conduct in trade or commerce it must

be shown not merely that there is a temporal

connection between the conduct and trade or

commerce but that the conduct is conduct which

makes up and forms part of trade or commerce

as those words are generally understood.

Then he refers to GRANNALL, He refers to HORNSBY

BUILDING INFORMATION CENTRE. At D, he refers to

PATRICK V STEEL MAINS and says that he disagrees

with Justice Wilcox's decision in that case and

then says that, therefore, the claim fails.

(Continued on page 39)

C1T24/2/ND	38	6/2/90
Concrete(2)

MR BENNETT (continuing):  Now, I should take Your Honours

to the judgment of Justice McHugh on the appeal,

and the relevant part of that judgment commences

at page 693. At 696C His Honour refers to the

judgment of Justice Lee, and then in the second

paragraph says this:

While no doubt it is true that acts

done preparatory to participating in trade

and commerce are not themselves done in

trade and commerce, it is a mistake to
think that trade and commerce merely involve

the exchange of goods or services and the

negotiations, arrangements and delivery of

those goods and services. · An order by a
transport company for the printing of invoices

is as much part of the trade and commerce of

the transport company as it is of the printing

company.

We would respectfully take issue with that proposition.

We would submit in that example, it is part of the

trade and commerce of the printing company, but not of

the transport company. It is too remote, we would

submit, to be said to be in its trade or co!Illllerce.
His Honour then goes on:

Lee J expressly refused to follow the decision of Wilcox Jin PATRICK V STEEL MAINS

PTY LTD ..... where Wilcox J held that

pre-employment negotiations were made in trade

or commerce. The decision of Wilcox Jon that

point was followed by French Jin ORISON -

We would respectfully submit that although Justice French

referred to and approved the judgment of Justice Wilcox

in PATRICK V STEEL MAINS, it was not followed and

applied because the reasoning in ORISON involved the
use of the word "proximate", and the fact that the

approval of the shareholders was necessary and

proximate to the specific acquisition, which we would	submit makes the case justifiable quite independ.ently
of the decision of Justice Wilcox -

Since the decision of Lee Jin the present
case, Lockhart J has also held in FINUCANE .....
the conduct occurring in interviews between

the Corporation's officers and a person who

migh in due course become engaged by the

Corporation as an independent contractor .....

was made in trade or commerce. Lockhart J

acknowledged that the facts of WRIGHT's case

were "clearly distinguishable ..... But he said:

" ... To the extent that Lee Jin WRIGHT's case

held that conduct in that context is of its

ClT25/l/FK	39	6/2/90
Concrete(2)

nature outside the scope of s 52,

whatever the scope of a corporation's activities

in and about the negotiations and whatever the

course of a corporation's business, then I must

respectfully differ from his Honour, and to that

extent prefer the reasoning of Wilcox Jin suggest that the approach I have adopted would

have led to a different result on the particular

facts of WRIGHT's case from that which Lee J

reached."

That rather recognizes, as we submit can be deduced

from FINUCANE, that that case is justifiable on a totally different basis: naraely.that it was trade or

connnerce in egg runs, rather than something related

to a trade or connnerce in eggs. Then there is a

reference to MERMAN, which I have taken to the Court

to. His Honour then says:

No doubt as Lockhart J observed in FINUCANE

it may be that not everything done by a

corporation that is engaged in trade or connnerce

is done "in" trade or connnerce. But everything

done for the purpose of carrying out its trading

or connnercial activities is in my opinion done as

part of a corporation's trade or connnerce.

Now that expresses, in a very direct way, the proposition

with which we take issue and which we respectfully

submit is too wide, and it would have as its logical

conclusion the misleading and deceptive hand signal

being squarely within section 52 or this case and

we respectfully submit it would not be accepted. -T:.1en there

is. a reference to employment of staff and other activities.

There is a reference to the decision of Justice Deane

in KU-RING-GAI CO-OPERATIVE:

The terms "trade" and "connnerce" are of the

widest import. In that case, his Honour rejected

the notion that "trade or connnerce" ..... was

restricted to ordinary trading and connnercial

activities.

But we respectfully submit that the ratio of

Justice Deane's decision in K~-RING-GAI CO-OPERATIVE

was that the activities engaged in between the members

and the building society were, of their nature, trading

or connnercial activities and the fact that there was

an overriding relationship did not pr=vent that being
the case. And, we would submit that the reference to
"ordinary trading and commercial activities" in that
context is quite different to that involved in the present

context or in WRIGHT's case.

ClT25/2/FK	40	. 6/2/90
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MR BENNETT (continuing): Then, there is a reference to the

decision in McARTHUR's case where it said:

" ... '"'Trade and commerce' between

different countries ..... has never been
confined to the mere act of transportation
of merchandise over the frontier: That

the words include that act is,: of course,

a truism. But that they go far .beyond it -

Yes, would would submit that it goes beyond it but it goes beyond it to the trading relationship and the

trading contract; the making of the trade in contract;
the negotiations; the representations leading up to

it; all those matters, but not the detail of the

hand signals by the driver or matters of that sort.

The Federal Court has heard many cases

under s 52 where the conduct involved occurred

before or after activities involving the

exchange of goods and services.··

Then:

leases of premises -

They,of course, are classic cases, I suppose, of trading in leases. They are within the sort of area

that was discussed in cases such as BEVANERE. An

estate agent trades in leases and makes representations in the course of that trade to people who are in a very

real sense consumers of leases even though they may

not be consumers in the strict sense of the definition

in the TRADE PRACTICES ACT.	They are in a different
category.

There is then a reference to the take-over cases.

They, as I have said, are within the proximate

exception and there is reference to some passing-off

cases where there is clearly representation in

trade or commerce and there is a reference to glory

in chip and pulp. And the conclusion is:

In my view making a contract of employment

and negotiating to enter into a contract ..... with
an employee ..... in relation to loading or

unloading trucks is conduct "in" trade and

commerce.

And:

the failure to provide a reasonably safe system

of work~- ... an act done in trade or comme~ce.

ClT26/l/LW	41	6/2/90
Concrete(2)

We respectfully take issue with that. We do

point out the distinction between negotiating

the contract which is one step closer than the

day-to-day activity but nevertheless it probably

cannot be distinguished and we respectfully submit

that that would not be followed.

Finally - I do not propose to go through - Your Honours, I make the higher submission which I

probably do not need to make in relation to

consumers. In HORNSBY BUILDING INFORMATION CENTRE

PTY LTD V SYDNEY BUILDING INFORMATION CENTRE PTY

LTD, (1978) 140 CLR 216, there are many reference

to consumers in the context of section 52.

At page 220, Sir Garfield Barwick, at point 8, put as his first conclusion that:

Section 52 is concerned with conduct which

is deceptive of members of the public in their

capacity as consumers of goods or services:

it is not concerned merely with the protection

of the reputation or goodwill of competitors in

trade or commerce.

At 223 point 9, Justice Stephen said,referring to the three lines from the end of the second last paragraph:

the section, it is said, is concerned only with
the protection of consumers and not of traders

who, like the Sydney Centre, complain of the

effect upon their business of the conduct of a

competitor.

This contention has some merit, although

its merit does not.I think lie where counsel .....

seeks to locate it. It was upon the heading

to Pt V of the Act, "Consumer Protection",
that reliance was -;>rincipally sought to be placed,

that heading being interpreted in the light of the quasi-definition of "consumer" in	s.4(3) of the Act. In my view this heading	does not restrict the effect of s.52 in the
manner contended for, although it does colour
the meaning to be given to the sort of
conduct against which the section is aimed.

So that is the lower proposition in relation to a

consumer and there is a discussion on the rest of

that page which I will not read about the concept.

ClT26/2/LW	42	6/2/90
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MR BENNETT (continuing:) At page 226 His Honour makes the

point that I have referred to that the remedy is available

to the rival trader although it is the consumer who

is being protected. That is all I need to say about

that case.

DEANE J:  Mr Bennett,what is Mr Justice Stephens reference to

the quasi definition of "consumer" in section 4.3?

MR BENNETT:  That is a definition which talks about amounts - values.

It is, I think the - - -

McHUGH J:	It was repealed,was it no~ after this decision?
MR BENNETT:	Yes, I think it is now section 4(b) which is, I

think, in a wider form. Yes, if Your Honours have

the 10th edition of Miller's Trade Practices Act, on

page 22 the old section is set out anct it is the quasi

definition because it is not in terms of"consumer

shall mean'\ it is in terms of "certain things shall be

deemed to be a consumer'. What it says is:

A person who acquires goods shall be taken
to be a consumer of goods if goods of the
kind ordinarily acquired for private use
or consumption and does not acquire them for

resupply -

and correspondingly for services, so it is a quasi

definition because it is put back to front and I assume. that is what His Honour is referring to.

DEANE J: Is it relevant there that the definition of

"services"expressly excludes what is done under a

contract of service for present purposes?

MR BENNETT:  The word "services", of course, is not

incorporated into section 52 and that does indicate -

it supports my general contention that the Act was

not concerned with matters done inside the

employment relationship and that that was regarded

DEANE J: If that is a quasi definition of "consumer" the	Act. as something outside the ambit of the - part of the	exclusion of what is done under a contract of service could be relevant to your argument?
MR BENNETT:	Yes,Your Honour.	In a very real sense although

one does not construe legislation by compartmentalizing

i~ the real point can be expressed in one very simple

sentence that this was not an Act about industrial

relations, it was not an Act about industrial safety

or personal injury cases, it was an Act about,so far as is relevant, consumer protection and misleading or

deceptive conduct in trade and connnerce and, again,

I appreciate this is not the case but if the officious

ClT27/l/JL	43	MR BENNETT, QC	.6/2/90
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bystander had said to Parliament, "What about the facts

of this case?". One would have thought it would have

been horrified, in 1973.

The other "passing-off" case under section 52 - I

use "passing-off" in inverted conmians - is PARKDALE V PUXU

which is reported in 149 CLR 191, and at page 197, at the

very bottom of the page, Sir Harry Gibbs makes the

familiar point - five lines from the bottom:

(Continued on page 45)

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MR BENNETT (continuing):

but although s. 52 is intended for the

protection of consumers, it is enforceable by

a trade competitor who is not a consumer.

That is, again, relevant to the question

Justice McHugh asked me at the beginning of this

morning's proceedings about the passing-off cases.

At page 199, point 3, His Honour says:

Section 52 does not expressly state what
persons or class of persons should be considered

as the possible victims ..... It seems clear enough

that consideration must be given to the class

of consumers likely to be affected by the

conduct.

Then he talks about what sort of consumers one is

concerned with. At page 202, in the judgment of

Your Honour the Chief Justice, at point 5,

Your Honour says:

Section 52(1) is expressed in terms of broad

generalities ..... The general words of s. 52(1) would be widely interpreted without being read down by reference to the heading of Pt V

"Consumer Protection" or to the more specific

succeeding sections.

But Your Honour then says:

Although s. 52(1) is intended to protect members

of the public in their capacity as consumers of

goods and services, competitors may seek an

injunction to restrain breaches.

So, although one does not read it down in that

way, that is put as the. intention of the section.

And at page 212, point 3, in the judgment of

Justice Murphy, His Honour says:

The section is designed to prevent deceptive

or misleading conduct, or conduct likely to
mislead or deceive, by manufacturers and other
traders, not to protect manufacturers and other

t~aders from competition. Although the proceedings

iri this case are instituted by a competitor,

that is no barrier.

So, again, thel::a.sic purpose is put as being the

protection of competitors. I will not take

Your Honours back to Justice Lee's judgment: there

is a substantial passage of two or three pages
before the passage I read to Your Honours in which

His Honour analyses these cases and comes to the

ClT28/l/DR	45	6/2/90
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conclusion that the section is confined to

consumer protection. There are many cases in the

Federal Court where it has not been so confined and

I have referred to BEVANERE and also, of course, to

the judgment of Justice McHugh in TNT MANAGEMENT.

Now, summarizing, ultimately, this case, we submit,

comes down to a question of reading section 52 and

looking at the intended ambit of the wide words in

that section. We submit that if the choice is between

the subjective or objective reading, as Justice Deane

put it to me, or between the qualitative or

quantitative reading, which is where I preferred to

put it, one would take the narrower meaning. One

would construe it as a whole as meaning that the

conduct must be conduct which is in trade or corrnnerce.

"In" as a preposition implies some relationship

closer than that implied by broader phrases such as

that appearing in section 51, t'with-respect to".

And, we submit that one simply would not attribute to

parliament theintention of controlling all conduct

which happends to take place in the milieu of trade

and corrnnerce as opposed to conduct which is conduct

in trade or corrnnerce itself. We submit it is the
latter to which the section is confined.

I should,in deference to the Solicitors-General present, simply put very clearly what my submission

is in relation to invalidity. There is no need for

me to submit that section 52 is invalid to any

extent except I need to say this that, if the

argument against me is accepted, it would follow,

as a matter of construction, that when one applied

section 6(2)(h) to section 52 in the case of an

individual engaging in conduct of the type engaged in in

this case, there would then be a serious question

as to the validity of the provision unless one applied,

at the same time as section 6(2)(h), either

section 6(2)(a), leaving it within the full range of

the trade and corrnnerce power; or section 6(3) with

the post and telegrap~s power or the territories' (Continued on page 47)

power.

ClT28/2/DR	46	6/2/90
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MR BENNETT (continuing):  To that extent there might be

an ambit of possible invalidity, although, of course,

one would construe the section to ignore it, and that

does not arise in this case, but otherwise there is no

submission about invalidity which we would make.

We simply submit that the phrase "in trade or commerce"

has the narrower meaning. We gain some support

from the constitutional cases although, for the

reasons I have given, those are a fortiori to our

case. May it please the Court.

MASON CJ:  Thank you, Mr Bennett. Mr Solicitor for New

South Wales.

MR MASON: 

Your Honours, my learned friend, the Solicitor-General

for Victoria has asked me to precede him, and I am
content with that course, if it meets with the Court's
approval.

MASON CJ: 

Yes.

MR MASON: 

I hand up our submissions.

MASON CJ: 

Thank you.  Yes.

MR MASON: 

Your Honours, there appear to be possibly two

competing theories as to how and why these words "in	trade and commerce 11 were inserted in the consumer
protection part of the TRADE PRACTICES ACT in 1973.
Mr Reydon, in his recently published Trade Practices Law, in chapter 1, contains a review of the historical
antecedents of the Act. One theory, and it is the
one advanced by Professor Zines in the passage we cite
in paragraph l(a), was that Parliament was having a critical eye to the then perceived limits of the power under section 5l(xx). It seems fairly clear the the corporations power was the principal powe1 that was taken down from the shelf to base the legislation
and given the more restrictive view taken in
STRICKLAND's case there was perceived, according to
Professor Zines, the need to limit it to trading
activities.
why the words 11 in trade and commerce II were used when Of course, that does not really or fully explain
there were three categories of constitutional corporations that were involved and the other
converging series of background material is the American and English legislation that dealt with
what may broadly be called "fair trading". The
American Act was the Federal Trade Commission Act,
15 USCS paragraph 45(a)(l). If I may just give the Court - and I am sorry I have not had these copied -
references to where there is a discussion about this,
in 55 American Jurisprudence 2nd, paragraph 738 and
following, 65 American Law Reports 2nd, 225 and, for a discussion of the corresponding State legislation,

ClT29/l/HS	47	6/2/90
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89 American Law Reports 3rd, 449, but the key

provision in the Federal Trade Commission Act is

a direction to the Federal Trade Commission to

prevent persons within the scope of that

commission's power, from unfair methods of competition

~n commerce, or unfair or deceptive acts or practices

1n commerce.

Now, doubtless those words "in commerce" were

in part a reflection of the American constitutional

limitations but equally, in our submission, they
went on a more sharp focus than that because there

were other parts of the legislation that confine the legislation to interstate commerce and addressed, as

it were, the constitutional power. The broad thrust
of those words in the American experience was to look

at the commercial, the business aspec½ of the

transaction in question.

(Continued on page 49)

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MR MASON (continuing):  The English stream included the

English TRADE DESCRIPTION ACT 1968. The principle

which is discussed in 48 Halsbury Fourth Edition,

paragraph 284 and following:

Any person who, in the course of a trade or

business, applies a false trade description -

et cetera. And the English FAIR TRADING ACT 1973,

the principal sections of which are section 2 and

34 where a director-general of fair trading was

established with the functionsof keeping under

review the carrying on of commercial activities

in the United Kingdom which relate to goods supplied

to consumers and section 34 concerns itself

with unfair practices, unfair to consumers in the

course of carrying on a business.

Your Honours, it would, in our submission,

be an error to assume that Parliament was plugging

in to the full breadth of the concept of trade

and commerce in the section 51(i) sense when these

words "in trade and commerce" were inserted in

the Act. And in addition to the reasons I have

advanced the critical distinction of "in trade

and commerce" departs from "with respect to trade

and commerce" which is the basis of the constitutional

power.

Equally, there may be some difficulty in looking too closely at the constitutional ambit of the

power as discussed by this Court in the TASMANIAN

DAM case. That established, as we understand it, that the scope of the power in section 51 (xx) with respect to trading corporations extended to

legislation which said, "A trading corporation

shall not, for the purpose of trade, do X". That

was held to be within the scope of the constitutional

power but, once again, those were not the words

that were chosen in 51(xx).

Your Honours, in paragraph 2, we seek to make

the submission that not everything done by a trading

corporation is done in trade and commerce even

if it promotes the corporation's affairs or is

essential to its continued trading. I feel that

in this respect we perhaps part some slight company

from my learned friend, Mr Bennett, who proposes

- one of his alternative tests, a test that suggested

that if it was absolutely essential to a trading

activity and so proximate to it it was part of

a trading activity, the tes~ we would submit, does

not look at it that way and, in addition to the

barrister example that has been cited from STREET's

case, there is an example given by Mr Justice French

in MERMAN's case, the issue of a writ by a trading

corporation, we would suggest the filing of a tax

ClT30/1/ND	49	6/2/90
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return by a trading corporation would clearly not

be acts done in trade and commerce no matter how

much they would further the trading activities

or how much, if they were not done, the company

would cease to trade. And the BEAL/GRANNEL analogy

has already been adverted to by my learned friend,

Mr Bennett.

In paragraph 3(a), we refer, and I will not

repeat, to the discussion in this Court as to the

focus of the range of protection given by

section 52. We would submit that consumers in

the relevant context means acquirers of services -

and "services" is defined in the Act as "not to

include the services provided by an employee to

• an employer" - and the acquirer of goods.

Your Honours, in the background material that is referred to in the middle of the page, we would

wish to draw attention to the essential attributes

of the long-standing Australian experience with
respect to compensation for injuries at work where
there was no fault or no negligence and to seek

to emphasize the question, "Could it have been

conceivably part of Parliament's purpose to enter

into this sensitive minefield?" Absent are any
addressing of the issues of compulsory insurance,
fixed levels of compensation, election provisions

between so-called common law rights and statutory

rights, specialized tribunals which applied in

all but two of the States by the mid-1970s and

associated penal legislation controlling safety in the work place which had a common law action

appended to it.

(Continued on page 51)

C1T30/2/ND	50	6/2/90
Concrete(2)

MR MASON (continuing): Your Honours, in section B of our

submissions on page 3, we submit that, although

trade and commerce includes the provision of

services and as my learned friend has accepted the

building of a building by Concrete Constructions is

part of its trade and commerce and is in its trade

and commerce, it does not follow in our submission

that every instruction given within the corporation

and its staff or agents is objectively to be

l."egarded as part of that situation and what is to

be the test then that determines whether it is in
or in the course of and not, we would suggest, that

Mr Justice Merling in GLORIES case in the passage that has been followed in some of the later cases,

came very close to isolating a test, that a

statement, and this would apply to conduct as well,

made in trade or commerce will almost certainly

be addressed directly or indirectly to the market-

place, that is, the consumers of one class or another.

One qualification to that which one can and must

readily accept is that it is not to members of the

public or to the public. _ 3.ame of the .ea:~ly discussion

seems to suggest that a consu..~er had to be a member

of the public and Your Honour Justice Toohey in

MENHADEN V CITIBANK,(1984) 1 FCR 542, in a passage

that was followed by the Full Federal Court in

BEVENARI's case, indicated why it was that a

single consumer can be, nevertheless, in trade and

commerce.

Your Honours, the PATRICK case is distinguishible, in our submission. There the corporate employer was

discussing with employees a change of position. The

employer was in effect offering them a new position.

There were therefore communications in the labour

market and the possibility that if those employees

did not like that new position, the employer would

obviously be seeking employees in the labour market

meant that that was just so much part of being in

a relevant act of trade and commerce, that there is
no difficulty with that case.	ORISON's case was

explained by my learned friend Mr B~nnett in a way

which we are content to adopt, but may we offer an

alternative explanation .... · That,Your Honours will

recall,was the circular sent to shareholders who

were asked to approve the action of a public company

that was proposing to take over a private company.

That communication was, in our submission, in a

very real sense, in the market. These were
shareholders of a public company. Their reaction to

the proposal by their own company to take over this

other entity was something which could easily and

would obviously directly impact upon the business

of that public company. It is not unlike the case

which deals with representations concerning dumping

CIT31/l/CM	51	6/2/90
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provisions, I have forgotten the name of that,
but the judgment of Mr Justice French, the very

recent case where they were held to be in trade

and commerce, because clearly they were going to,

although directed at a particular group of persons

who one would think perhaps are not themselves in

trade and commerce, they would obviously impact

upon the trading or commercial or business work of

the corporation involved.

Your Honours, the parties have exchanged their

submissions in this case and I therefore have the

benefit which Your Honours do not, of paragraph 2

of the written submission of my learned friend,

the Solicitor-General of the Commonwealth.

(Continued on page 53)

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MR MASON (continuing): He, there, addresses a matter which is

connected with the question asked by Your Honour

Justice McHugh about the persons to whom the focus

of protection is made available by section 52.

The submission is made by my learned friend that

section 52 contains no limitation as to the persons

or class of persons who may be misled or deceived.

Now, that is true, of course. It does not follow

from that that section 52 applies to all persons

in all situations.

If I may address the particular question that

Your Honour Justice McHugh put and give two separate

examples related to the facts of this case. In the

course of showing Concrete Construction's customer

the building site in the course of the building work,
if the foreman was showing the customer around and
said, "This is the sort of job we are doing", and

made some connnent about the grate in the course of

promoting the business of a satisfied customer,

then that would be in trade and commerce. Even if

it was the unfortunate Hr Nelson who heard and

acted upon it, if he suffered injury then, on that

view of the matter, he would be entitled,under the

statutory provisions of the Act, to protection.

But if the facts were that, as appears to be in

this case, the direction was given for the purpose

of telling the employee how to get on with the job,

even if they were overheard by the representative of

the customer, then that would not, in our submission,

be a statement in trade and connnerce and would be

actionable at the suit of neither. Now, in our

submission, while that is a fortunate or unfortunate

situation in that in one case people recover and

othersdo not, that is just a factual application of

this'in trade and connnerce'which Parliament saw fit

to put into the legislation. I just have not got

the name of that case, I am sorry, which related
to dumping. It is the MERMAN case, if Your Honours

please. Those are our submissions.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for Victoria.
MR BERKELEY:	Your Honour, there is a limit to what one can

usefully say about a monosyllabic preposition.	We
gratefully adopt what was said by our learned
friend, the Solicitor for New South Wales.

MASON CJ: Thank you, Mr Solicitor. Mr Douglas.

MR DOUGLAS:  May it please the Court. Your Honours, if I

could firstly deal with the question which I could

call the "consumer question" which is raised in

paragraph 1 of my submissioraand also by Mr Bennett.

That matter was considered by this Court in the

HORNSBY decision and I have given the relevant

ClT32/l/DR	53	6/2/90
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references and a majority in that Court was of the

view that the unambiguous words of section 52 should

not be given some unnaturally confined meaning

because of the heading to Part V. Mr Bennett has

drawn the Court's attention to the provisions of

paragraph 4B of the Act and, certainly, it could not

be suggested, we would say, on a proper construction

of section 52 that, for example, section 52 was to

be limited to the types of consumers which are

referred to in the definition sections. They are, for example, persons who acquire goods for personal,

domestic or household use or consumption or goods

consisting of a commercial road vehicle.

So, we would say, it could not be so confined. Therefore, if "consumer" is to have any relevance

in the interpretation of section 52 it must be some

other meaning of "consumer". But what we say is

that the plain and ordinary meaning of the words in

the section should be given their natural and

ordinary meaning. The provisions of this part

of the Act were considered by Mr Justice Stephen

and the other members of the Court in HORNSBY, but

it is worthwhile looking at division 1 of Part V

because there have been a few amendments to that

division since HORNSBY was considered and they are,

in fact, instructive as to the approach which the

Court should take to section 52 in confirming, we

would submit, its earlier decisions that the words

are to be given their wide and natural meaning.

For example, one should go to section 52A

which is the section which deals with unconscionable

conduct.

(Continued on page 54)

ClT32/2/DR	54	6/2/90
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MR DOUGLAS (continuing): That section provides that:

A corporation shall not, in trade or conunerce, in connection with the supply or possible supply of goods or services to a

person, engage in conduct that is, in all the

circumstances, unconscionable.

And subsection (2) provides:

Without in any way limiting the matters to

which the Court may have regard for the purpose

of determining whether a corporation has

contravened sub-section (1) in connection with

the supply or possible supply of goods or services

to a person ..... the Court may have regard to -

(a) the relative strengths of the bargaining

positions -

et cetera. So, in other words, at a time after

HORNSBY had been decided, the Court decided that it

was appropriate in all the circumstances that there
should be another provision in this division dealing

with unconscionable conduct, and they decided to

limit it to conduct"m trade or conunerce in connection

with the supply or possible supply of goods or services

to a person". When one has regard to that limitation

it is quite clear that section 52 is not in any way

by reason of the absence of any such words, to be

limited to conduct "in connection with the supply

or possible supply of goods or services to a person".

Also, if one goes to the other provision which has been referred to - section 53B - that is "Misleading

conduct in relation to employment" - this -was also

inserted in 1986, and it provides that:

A corporation shall not, in relation to

employment that is to be, or may be, offered by

the corporation or by another person, engage

in conduct that is liable to mislead persons

seeking the employment as to the availability,

nature, terms or conditions of, or any other

matter relating to, the employment.

Now, Mr -Bennett conceded, in answer to a question put

to him by Mr Justice Brennan, that in fact the
employer who advertises the faulty vehicle for use in

interstate trade, would in fact be caught by the

provisions of that section, but we would say that,
similarly, the employer would be caught by the provisions

of section 52.

ClT33/l/FK	55	6/2/90
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MR DOUGLAS (continuing): That is a wider prov1s1on in one sense than

section 52 in that it is not limited to conduct in trade

or commerce but it could not be said on any view of the

section that it is limited to conduct which is related to

consumers. So, therefore, whilst it has been said, and

whilst the heading of this division says_ consumer

protection, it is clear there is one provision.at.·l~ast ·

which is not in any way related to consumers unless you

take the widest possible view of what consumer means and

just say that a consumer can be anyone to whom information

is conveyed.

The other provision to which I wish to refer

which is also an amendment since HORNSBY was considered

is that contained in section 65A of the Act and that
is an important one because it relates to the application

of the provisions of the division to prescribed

information providers. Now, Your Honours may recall

the circumstances in which this particular provision came

to be inserted in the ACT because it was decided by the

Full Court of the Federal Court in the case of

JH GLOBAL SPORTSMAN, (1984) 2 FCR 82, that:.

The publication of statements, including

statements of opinion, made in the ordinary

course of the publication of news in those

parts of a newspaper -

can constitute -

misleading or deceptive -

conduct -

within the meaning of s 52(1) of the TRADE

PRACTICES ACT.

There is no definable boundary between conduct which is misleading or deceptive or

likely to mislead or deceive and material which

is defamatory.

So. you can imagine - and the Court is well aware of the
circumstances which prevailed.	I do not think a case ever

came to be decided by this Court but certainly there'was

great concern at the time amongst media interests that,

in fact, section 52 could give a right of action for

defamation which may not have the same defences applying to

it which had applied generally to the law of defamation

historically.

What the legislature did was to enact section 65A

which provided that in subsection (1):

Nothing in section 52 -

ClT34/l/ND 56 6/2/90

Concrete(2) (Continued on page 56A)

and other provisions -

applies to a prescribed publication of matter

by a prescribed information provider, other

than -

(a) a publication of matter in connection with -

(i) the supply or possible supply of goods or

services;

(ii) the sale or grant, or possible sale or

grant, of interest in land;

(iii) the promotion by any means of the supply

or use of goods or services; or

(iv) the promotion by any means of the sale

or grant of interests in land -

and it goes on so to provide.

(Continued on page 57)

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MR DOUGLAS (continuing):  But what is important to note about

that section is this, that it only applies to

prescribed information providers. So, in actual

fact, the exception - and they are, generally,

if I could put it that way, media interests. Itdoes

not apply, for example, to the servant or agent

of the prescribed information provider which could,

for example, be a corporation in some circumstances.

And the actual limitation on the amendment which

was affected by that provisions is set out quite
well in an article in the Australian Bar Review

to which Your Honours have a reference, but if

I could just give a reference to the page and the

cases: it is in the Australian Bar Review, volume 5,

No 2, an article by Clark at page 134.

Importantly, for example, while section 65A

applies only to media interest, it does not apply

to defamatory conduct engaged in by other corporations

and persons, caught, for example, by the extension

provisions of section 6. Recently - the Court

does not have a reference to this case but it

is FLAHERTY V GIRGIS - the Court had occasion to

consider, 162 CLR 574, the relevant passage is

at 594-595, the regard which should be had to amendments

of a statute after you have already had a prior

judicial interpretation of a statute. I will not

take the Court to that passage but we would say
that those amendments, after the decision in HORNSBY,

and after the decision of the Full Federal Court

in LUBIDINEUSE V BEVANERE, provide a considerable

basis on which it can be submitted that section 52

was intended to have the wide scope which we now

contend for it in this case and that, for example,

notwithstanding the amendments which have been

made or the insertion of section 65A, section 52

still, in some circumstances, would provide a right

of action akin to a right of action in defamation

against certain persons.

So we would say that it was clear at the time

when HORNSBY was decided that the section should
not be confined in the way in which my learned friend, Mr Bennett, seeks to do and, secondly,

that by reason of the amendments which have been

made to that part of the division since that time

it is quite clear that it is not intended - that

is section 52 - to be confined to conduct which

has some relationship to consumers.

(Continued on page 58)

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MR DOUGLAS (continuing): Also, my learned friend has referred

to the reading speeches but I would only wish to refer

to one passage which merely states the obvious and

that is the second reading speech of Senator Murphy

of 27 September 1973 and at page 1118, under the

heading of "The Consumer Protection Provisions",

it is said:

The consumer protection provisions

are to be found for the most part in Part V.

Some of these provisions are expressly

limited to transactions involving consumers.

So, we would say that even then it was contemplated that some of them did not and obviously, on the

construction of section 52, it is not so limited. So,

-hat is what we wish to say about that particular

point.

So far as the second point is concerned, it

does not seem to arise - that is the second point

in the submissions which we make - on what

Mr Bennett has said.

I then turn to the question of whether

what was done was done in trade or commerce.

McHUGH J: Well, just before you leave that. When you

look at section 52, it says that:

A corporation shall not, in trade or

commerce, engage in conduct that ..... is

likely to mislead or deceive.

And so on. Could I ask, likely to mislead

or deceive what persons? Surely there must be

persons who themselves are engaged in trade and

commerce, must there not?

MR DOUGLAS:  But the persons who are likely to be misled or

deceived must be persons -

McHUGH J: - - - who th~elves are in trade or commerce?
MR DOUGLAS:	Who are themselves independently engaged in

trade or commerce?

McHUGH J: Well, who are in the trade of commerce.

MR DOUGLAS:	Yes.
McHUGH J:	Who are affected by it in some way.

MR DOUGLAS: Well, Your Honour, certainly persons who suffer damage

under the provisions of - I think it is section 80 or

82 of the Act can claim damage but it must be a person

who is in some way affected by the conduct in trade or

commerce, yes.

ClT36/l/PLC	58	6/2/90
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McHUGH J:  But engaged in trade or commerce?

MR DOUGLAS:  Not necessarily, Your Honour. We would say - well,

the section is:

A corporation shall not, in trade or

commerce - - -

McHUGH J: Yes.

MR DOUGLAS:  I am thinking of the example which Mr Bennett gave

of the person who is affected by the hand signal on

the road by the interstate lorry driver. That person

is not - that is, a person who is affected by

T36 the conduct is not in trade or commerce. The lorry

driver himself was in the trade or commerce of the

corporation. But we would say that the section

none the less would provide a remedy for the person

who was affected by the hand signal of the lorry

driver.

McHUGH J: Well, is trade or commerce in this section limited

to the corporation's trade or conunerce or is it

really looking at trade or conunerce as a volume

of which the corporation plays a part?

MR DOUGLAS:	Your Honour, probably more the latter.
DAWSON J: That is allied to	the question I was asking

before, does there have to be some sort of commercial
relationship within which the conduct takes place

for the section to apply - something similar, any way?

MR DOUGLAS:  No, Your Honour, because, with respect that puts

a gloss on the section which - - -

DAWSON J: Well, it does not. That would be an

interpretation of in trade and conunerce. Trade and

conunerce cannot be one-sided in one sense.

MR DOUGLAS:  Your Honour, the section supports passing-off actions, for example, between competitors.

Certainly, one competitor is engaged in his own

trade and conunerce and the other competitor is

engaged in its trade and commerce. There is some

public aspect to that in a sense, but what that

really seeks to do, with respect, is to draw either a

distinction between internal and external conduct

which was something, for example, which was done

in the KU-RING-GAI case where Mr Justice Brennan and

Mr Justice Deane were of the view that the mutuality of the relationship between the members of a

co-operative and the co-operative itself

did not matter, whereas the Chief Judge

Sir Nigel Bowen, was of the view that because of the

mutuality of a relationship it was internalized

and it was not really or could not be characterized

as trade or commerce, and we would say th~t the views

expressed by Mr Justice Deane and Mr Justice Brennan in that

case are to be preferred.

ClT37/l/PLC 59 6/2/90

Concrete(2}

DAWSON J: But, you see, here you are dealing with - not just

conduct in trade or commerce,misleading or deceptive

conduct and whilst the conduct itself of driving a

motor vehicle and so on may be in trade or commerce in one

sense, although it would be one-sided, something that

is misleading or deceptive requires two and it is not

misleading or deceptive on one point of view in trade

or commerce unless the other person is engaged in trade

or commerce too.

MR DOUGLAS:  Yes. Your Honour, in this particular case it is

much closer than the example which was given because

you have the individual; that is, the individual

employee, is an integral part or cog of the trade

or commerce of the corporation.

DAWSON J: But, unless you say the employer-employee relationship

is a commercial relationship in the relevant sense, that

would not make any difference.

MR DOUGLAS:  We would say that as an alternative solution,

Your Honour. In other words, we would say, for the

purposes of this particular interpretation of the

provision, that the employer and the employee are

in a commercial relationship.

If you have a consumer - if we just take a consumer - the consumer is not necessarily engaged

in trade or commerce unless the conduct in purchasing

goods or acquiring services be regarded as part of the

reciprocal trade or commerce of the person from whom

those goods or services are acquired.

There is a commercial relationship there but the

consumer is not, if this is just an incidental

transaction, necessarily engaged in trade or commerce.

It is the person who supplies the goods or services

who is engaged in trade or commerce and the prohibition

is upon the corporation in trade or commerce engaging

in conduct which is misleading or deceptive or liable

to mislead or deceive. So, it really - - -

MASON CJ:	Mr Douglas, it may be convenient now to adjourn.
MR DOUGLAS:	Yes, Your Honour.

MASON CJ: But, before we adjourn, Mr Solicitor for the

Commonwealth, would it be convenient to hand in your

outline of submissions?

MR GRIFFITH:  Perhaps I should indicate to the Court that we

deal, of course, with the issue of constitutional

validity which now seems somewhat by-the-by but that

is the second part.

MASON CJ:  Yes. The Court will now adjourn until 2. 15 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

C1T38/l/SH	60	6/2/90
Concrete(2)
UPON RESUMING AT 2 .16 PM :

MASON CJ:	Yes, Mr Douglas.
MR DOUGLAS:	Could I just add as a reference, at the foot of

paragraph 1, Mr Justice Toohey's decision in MENHADEN V

CITIBANK,55 ALR 709, particularly at page 712. I had

which the other authorities there cited make. intended to include it. It also just makes a point

Before lunch,Mr Justice Dawson had suggested to

me that for section 52 to apply there had, in effect, to be

a connnercial relationship between the corporation and the

personal class of persons who maybe misled or deceived.

With respect, we would say that this is demonstrably not

so and is borne out, indeed, by	my learned friend's
submissions.	I gave some examples before lunch but possibly

the clearest example one can give is that of advertising

because, clearly, there is no connnercial relationship
between the corporation, which disseminates a misleading

and deceptive advertisement and a person who sits in his

lounge chair at home watching the advertisement. Other

examples are those actually given by - - -

DAWSON J: Well, there is a potential relationship, is there not? I meat

one does not have to be rigid about it.

MR DOUGLAS: A contractual relationship?

DAWSON J: A potential relationship. The advertisement is

directed at ·these people because of the potentiality of a

connnercial relationship between them.

MR DOUGLAS: Well, there is a potential connnercial relationship

but there is certainly no actual connnercial relationship.

DAWSON J: Yes~ I am searching for what it exactly is but it seems

to me there must be some limit in fact.

MR DOUGLAS:  Your Hor-leur, Mr -Ju&tice DemI&-put· tha proposition as-being objective/

subjected. Some connnentators have referred to a distinction

as being external/internal and so you draw a distinction

between what you could externally describe as being the
trade and connnerce of a company and you do not have regard
to those internal matters to the corporation which are
a necessary incident of Australian connnerce and are, in

actual fact, the very acts of a corporation whereby it is

capable of engaging in trade or connnerce . We would say

that that is a distinction which is there although.not

very explicitly irt the ·judgirents in KU-RING-GAI. I think

Your Honours have a reference to it and I shall not take you

to it unless the Court feels it is necessary but it was

the FUll Federal Court, a de~i~ion of·_. the -Chief;:J:,Jdge Sir Nig-el Bowen anc

Mr Justice Brennan and Mr Justice Deane when they were on

the Federal Court. It is ,36 FLR.

ClT39/l/JL	61	6/2/90
oncrete(2)

MR DOUGLAS (continuing):  It was a case of a co-operative

building society which had a number of members.

The facts are somewhat complicated but the principal

activity of the co-operative building society was

the lending of money to its members and

Mr Justice Bowen was of the view that because there

was a degree of mutuality between the members and

the co-operative the transactions between the members

and the co-operative lacked what you might call was

the essential commercial character which would

enable the conduct to be described as "trade or

commerce". On the other hand, Mr Justice Deane

and Mr Justice Brennan were of a contrary view and

they formed the majority.

DAWSON J:	That is a difficult case but if you take the case of the misleading hand signal by the driver employed by a
corporation,one finds difficulty in seeing if that is deceptive conduct in trade or commerce. Then it is
necessary to draw the line somewhere, or you do not
find it necessary but some might.
MR DOUGLAS:	Your Honour, the legislature has made it quite clear, we would say, that section 52 is to be a
general catch-all provision.  When it has exceeded
the scope which they wished it to have they have been
able to amend the Act, for example, by inserting section 65A into the Act. Otherwise they have not
sought to limit its scope. It is a very general
provision and the words are deliberately intended to
be general and wide.
McHUGH J:	Yes, but there must be some limitations on it.

If your argument is right it would mean that if this

defendant had provided a set of steps up to the fifth

floor and some visitor to the building was injured

because of the defective set of steps, the

corporation would be engaging in conduct within the

meaning of the section. That does not seem - - -

MR DOUGLAS: 

If Your Honour takes a similar example: say,

for example, you had a hotel which was letting out rooms
for hire and a customer comes down-:- it is a
corporation -- and he is directed to go to a particular
room and he opens a door to that particular room and

it turns out that there are renovations being carried out to the hotel and there is a 20-foot drop. That is

mis leading and deceptive conduct in trade or commerce, Your Honour. It is not very different from the example which Your Honour gave.

McHUGH J:  Perhaps it is different because there is some sort

of potential relationship. There is a customer

relationship whereas in the illustration Mr Bennet.t

gave of the hand signal there is no prior relationship

between the parties except that to which is brought about

by the act itself.

ClT40/l/HS	62	6/2/90
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MR DOUGLAS:  It may not be necessary for the purposes of the

argument which I address here to establish that

that example would in fact be successful, although

I do not recile from the proposition that in

fact it could, because it is in fact one step removed

from a situation where an employer gives

instructions to an employee in the very course of the employment of that employer. It is important

to bear in mind - and I have not given the Court a

reference to it - just the actual provision, and

that is section 84(2)(a), because that is the

deeming provision whereby:

Any conduct engaged in on behalf of a body

corporate -

(a) by a director, servant or agent of the

body corporate within the scope of the

person's actual or apparent authority;

shall be deemed, for the purposes of this Act,
to have been engaged in also by the body

corporate.

I am sure that the Court had that in mind and of

course that is a fundamental or stated or unstated premise on which this whole argument is taking

place, because it is the instructions of the

foreman. But they were instructions by the foreman,

given to the employee for the very purposes of the

trade or commerce of that employer.

TOOHEY J:	Why do you focus on the trade or commerce of the
corporation itself, Mr Douglas? I appreciate there are difficulties if you do not in trying to
identify what trade or commerce the section speaks
of. but grannnatically it does not necessarily suggest
that it is trade or commerce of the corporation
itself.

MR DOUGLAS: No, it does not. One could envisage1 I suppose,

situations although I cannot readily tnink of an

example where it could be just a general conception

of trade or commerce although not necessarily the

trade or commerce of a corporation.

TOOHEY J:  I mean is it possible, for instance, that you look

at the conduct which was engaged in and in a general

way answer the question whether that conduct answers

the description of trade or commerce? In many cases

you would answer it by reference to the undertaking

of the employer, but there may be situations where

it can be ansere4 not entirely by reference to

that criteria.

CIT41/l/CM	63	6/2/90
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MR DOUGLAS:  I am not sure that that makes the task any

easier.

TOOHEY J: I am sure it does not.

11R DOUGLAS:  Because if you take the view, and we submit that

the approach of Mr Justice McHugh in WRIGHT

was the correct approach and that is that

everthing done by a corporation for the purposes of its trade or commerce is part of its trade or

commerce and is in trade or commerce. So, at that

level and so far as the particular facts of this

case are concerned we say that what was done by

the corporation was conduct in trade or commerce.

There could be circumstances in which a corporation engages in conduct which is in trade or commerce

but not necessarily its trade or commerce but I cannot think of an example at the present time.

BRENNAN J:  Mr Douglas, the pleading itself is silent as to

what the trade or commerce that is relevant here

is.

MR DOUGLAS: Yes, Your Honour.

BRENNAN J: There was a concession at the opening of Mr Bennett's

submissions that there was a trade or commerce.

MR DOUGLAS:  Yes, Your Honour.

BRENNAN J: What do you identify as the relevant trade or

commerce?

MR DOUGLAS:  I think the basis on which the matter has been

litigated, Your Honour, was that this was a

building company and it was engaged in building

Grosvenor House which is a large building which had

been built in Sydney for reward.

BRENNAN J:  So its trade or commerce was the engaging in a

building for reward?

MR DOUGLAS: Yes, Your Honour, and we say that what was being

done by the employee in this particular case istheiywere

constructing a building for reward.

BRENNAN J: 

So that anything that is done for the purpose of

constructing or facilitating the construction of the
building, I take it, would fall within the section?

MR DOUGLAS: Yes, Your Honour, on our submission and therefore

instructions given to an employee for that purpose

are part of the trade or commerce of the employer,
being instructions given by the foreman which are

deemed by virtue of section 84(2)(a) to be the

instructions of the employer.

ClT42/.l/LW . 64 6/2/90

Concrete(2) (Continued on page 64A)

BRENNAN J: Is it for that purpose, that is for the purpose

of promoting the commercial activity of the company?

MR DOUGLAS:  Yes, Your Honour.

BRENNAN J: Because whether that instruction was given or not

the company had its contract, the work was to be done.

What was happening here was a particular instruction

being given internally by the company in order that

the company could perform that which was its trade

or commerce.	The question is whether that is "inlf it
or not.

(Continued on page 65)

ClT42/2/LW	64A	6/2/90
Concrete(2)

MR DOUGLAS: Well, my learned friend has placed considerable

emphasis upon the words "with respect to" and so

on, but in reality one can hardly think of something

which is more in trade and commerce that this

particular example unless one is going to draw some

sort of distinction between the external manifestations

of a trade and commerce as that relates to, for example,

the client of a building company, the company for

which the building is being constructed, and the

internal management of a building company. If one is

to draw that sort of distinction, it excludes cases

such as those which have been referred to by Mr Bennett as possibly within the section as relationships between

a corporation and its shareholders. For example -

BRENNAN J: 

The antonym of "in" is "out", and so one has to

put some kind of scope around the notion of the
"trade or commerce"~ not as a general legal conception
but as a practical reality in the CONCRETE case.

MR DOUGLAS: 

Yes, but it is not as all-embracing as one would

have thought, but it does include everything which is
done by corporation for the purpose of its trade or

commerce and you have to identify what the trade or

commerce is and identify whether that particular

activity is something which is being done by the

corporation for that purpose.

BRENNAN J:  Is there any case which takes it as far as extending

to'ror the purpose of"?

MR DOUGLAS:  No, I do not think anyone has actually identified

different formula of words to identify trade or

the words, "for the purpose" as being synonymous with of

"in" in any of the authorities, although in FINUCANE

commerce was really a very profitable endeavour.

McHUGH J: Well, the actual decision in GLORIE's case, the

forestry cases, has to be really supported on that

basis, I think, does it not?

MR DOUGLAS:  It does, Your Honour. On one view it is even wider

that what we seek to contend for here because it was

just the showing of films for a promotional activity

and an ecology group commenced proceedings saying it

was misleading and deception, and in fact the examples

which have been given by Mr Bennett in paragraph 8 of

his submission - one is relationships between a company

MERMAN, which was a submission to the Australian

and its shareholders, the other is GLORIE's case which was

Customs Service, seeking the imposition of counter

measures pursuant to the CUSTOMS TARIFF -(ANII-DalPING) ACT
and a trade competitor brought proceedings - well, actually

brought proceedings in relation to the submission which had it was the person who was the subject of that complaint -

been made to the Australian Customs Service.

ClT43/l/FK	65	6/2/90
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MR DOUGLAS (continuing):  Now, we would say that all of these

things are things which are done in trade or conrrnerce
because they are all done as a necessary incident of
the trade or conrrnerce of the particular corporations

which are in question on those occasions.

TOOHEY J:  But your submission, Mr Douglas, has the consequence

that if you identify what the trade or commerce of

the particular corporation is and then find that the

conduct engaged in does not fall within that trade or

conrrnerce but certainly answers, in a general way,

the description of conduct engaged in trade or

conrrnerce, section 52 would not provide any relief.

MR DOUGLAS:  Your Honour, that distinction has escaped me, I

am sorry. Could Your Honour just ask me the question

again?

TOOHEY J: Well, you focus, at each stage of your submission,

on the trade or conrrnerce of the corporation and you
said, in answer to a question addressed from the

Bench, that the trade or conrrnerce of this particular

corporation was building.

MR DOUGLAS:	Yes, Your Honour.
TOOHEY J:	Now, the next step seems to be that you look at the

particular conduct and say was that conduct engaged

in for that purpose, or is it incidental to or whatever

yardstick you like to use. But, what then of conduct

which is engaged in which is misleading or deceptive

but which does not fit into any of those pigeon-holes -

it is conduct engaged in by the corporation but it

may have nothing to do with the purpose for which it

was formed.

MR DOUGLAS:  Your Honour, it may be that one has to broaden

the submission to just have regard to what one might

call the conception of trade or conrrnerce generally

and then - - -

TOOHEY J: That is what I was suggesting to you a short time

ago because the argument that you are putting to us

may take the Court from time to time into an

examination of the primary activity of the

corporation which seems to me raay not -have

been the sort of thing that section 52 contemplated.

MR DOUGLAS:	Your Honour, I would accept that suggestion and embrace it and if·, in fact, I have put the put the
proposition too narrowly then I would seek to put it
in a broader way.

TOOHEY J: It was not really meant as a suggestion; it was just an

expression of puzzlement, really, as to what the

section intends to embrace.

ClT44/l/DR	66	6/2/90
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MR DOUGLAS:	I suppose when one looks· back historically,	the prov1 s 10n

was put in at a time when it may have been thought

that the only activities of a trading or financial

corporation which could be prescribed were

activities in trade or commerce. So the provision

may have been put there for a constitutional reason.

McHUGH J:  Well, does it indicate that? Does it not rather

indicate the opposite because it would have been

simpler for the Parliament to have said ''a trading

or a financial corporation shall not engage in

conduct which is likely to mislead", but instead

they said, "a corporation shall not ..... in trade II

or commerce .

MR DOUGLAS:	Certainly in this day and age I do not think there would be any doubt that such a law would be
valid but perhaps in 1974 when it was first enacted
there may have been some doubt about that. I think
at the end of the day I cannot put the proposition
any more clearly than as was put by Mr Justice McHugh
in WRIGHT and to say that there should not be a
distinction drawn between what could be characterized
as external or internal activities and one has to have regard to all of the activities which are
engaged in by a company for the purposes of its trade or commerce.
McHUGH J:	I think you might be right about that constitutional

basis because I think in STRICKLAND's case the

Chief Justice said that a law which spoke about a

trading or financial corporation doing something

was not necessarily a law with respect to

section 51(xx).

MR DOUGLAS:  Yes, Your Honour. Going to the same but related

aspect of the topic, Mr Bennett has sought to rely referred to the fact that in GRANNALL the words "with respect to" - that is in paragraph 6 of his submission.
upon some of the constitutional cases, in particular

He says: 

The cases based on Section 5l(i) of the

CONSTITUTION are a fortiori to the present

situation because of the words "with

respect to" in Section 51 of the CONSTITUTION.

Since GRANNALL and BEAL have been decided this Court has had occasion to consider for question again,

incidentally possibly, in COLE V WHITFIELD, and it

was made quite clear in that case in 165 CLR 360 at 398,

that the opening words "with respect to" in section 5l(i)

were not a basis on which - at page 398, a joint

judgment of this Court, it said:

ClT45/l/HS	67	6/2/90
Concrete(2)
MR DOUGLAS (continuing):

We do not accept the explanation

the relationship between s.5l(i) and s.92

suggested in GRANNALL V MARRICKVILLE

is to be found in the presence of the words

"with respect to" in the opening words
of s.5l(i). The consequence of reconciling

the two constitutional provisions in that

way is to treat the legislative power

conferred by s.5l(i) as essentially

peripheral in character. In our view,

any acceptable appreciation of the
interrelationship between the two sections must

recognize that s.5l(i) is a plenary power on

a topic of fundamental importance.

Secondly my learned friend has referred to

GRANNALL'and BEAL in so far as they seek to say

that the conception of interstate trade or commerce

does not include within it a manufacture or

production. But that is a very different question

from the question whether manufacture or production

themselves are trade or connnerce, and that is

something, for example, which was considered by

Mr Justice Fullagar in O'SULLIVAN V NOARLUNGA MEAT

and so these sorts of distinctions which Mr Bennett

has sought to draw based upon those constitutional

authorities, we say are not of much assistance.

The authorities on section 5l(i) are of some

assistance in· determining what may be included,

however, within the conception of trade or commerce,and

·I have given a reference to those authorities on

page 3 of our submission. For example in

~LEAKES V DIGNAN, regulations made there with

respect to the engagement, service and discharge of

transport workers and persons who could be engaged

as transport workers ,are regulations made restrictng

the loading and unloading of interstate and

overseas vess.els to members of a specified

industrial union and to returned sailors and soldiers
and it was held that that was a valid law pursuant to

section 51(i) of the CONSTITUTI9N.

Another good example is that of JOYCE V

AUSTRALASIAN UNITED STEAM NAVIGATION CO. LTD,

(1939) 62 CLR 160. The law in question there was

one which prevented the recovery of compensation

independ~tlyof the~·JZN'S· 'COMPENSATION ACT - if

you in fact had recovered compensation under the

SEAMENS COMPENSATION ACT and that was held to be a

valid law of a Commonwealth pursuant to section 51(i)

of the CONSTITUTION. I have referred in the

submission to cne relevant passages in those judgments

on which we would rely. I would wish simply to add

CIT46/l/CM	68	6/2/90
Concrete(2)

a reference to the SEAMEN'S UNION OF AUSTRALIA V

UTAH DEVELOP:MENT CO (1978) 144 CLR 120,

particularly at pages 127, 138, 152 and 157.

McHUGH J: Those cases are not all that helpful though,are they

becanse of · the presence of section 98 saying

that trade and cormnerce extends to laws in respect

of navigation and shipping?

MR DOUGLAS:	Some have sought to explain the ambit of those cases on the basis of that provision in the
w=t1IT~""TI-Ol!~ Your Honour, but we would say that
in fact they are of some assistance in determining
what is included within the conception of trade or cormnerce, and then from that, by analogy,
trying to determine what the legislature had in mind
when they said that something had to be conduct in
trade or cormnerce.
DAWSON J:	That seems to me :I may be ha'Iking back a little

bit, - places ;• the emphasis wrongly. It is not so much a question of whether the corporation is

engaged in trade or cormnerce .- assume that it is,

· that everything it does is trade or cormnerce - but

it is really the misleading or disception that

has to be in trade or cormnerce, that is,it has

to mislead or deceive in trade or cormnerce.

(Continued on page 70)

CIT46/2/CM	69	6/2/90
Concrete(2)

DAWSON J:  And that means the section has to be of a commercial

character.

MR DOUGLAS:  Your Honour, that is really putting a gloss

on the words which is not there, with respect.

DAWSON J: No, it is not, it is the conduct which it engages

in which has to be in trade or commerce and that

conduct has to be misleading or deceptive.

MR DOUGLAS:  Yes, but, Your Honour, we are driven back, however,

to the question of whether the conduct was in trade

or commerce and it is again seeking, with respect,

to draw what one might call an external or internal

distinction - - -

·DAWSON J:	I wonder.
MR DOUGLAS:	- - - between the activities which are involved in by the corporation. It really does come back,
with respect, to the same sort of distinction.

DAWSON J: Probably because it takes two to be mislead or

to be deceived, even actually or potentially, and

that does lead you to a relationship, that does

lead you, in some way or another to the requirement

that the relationship should be of a commercial

kind. If you say that the employer/employee

relationship is not a commercial relationship,

in the sense of being part of trade or commerce
or part of the trade or commerce of the employer,

then that would provide the answer.

MR DOUGLAS:  But, Your Honour, earlier decisions of this·

Court have established that you do not even have

to establish that there was, in fact, someone who

was misled or deceived.

DAWSON J:  No, I know, but potentially there has to be someone.

You cannot mislead in the abstract.

MR DOUGLAS:  No, but that surely must mean that there need

not be a relationship.

DAWSON J: Well, a potential relationship which is commercial,

that would do.

MR DOUGLAS:  Your Honour, I am repeating myself but it really

does come back to whether what was done was done

in trade or commerce.

DAWSON J:  Yes, exactly, and that might be a different question

from whether the company is a commercial company

and therefore all its activities are directed towards

commercial ends.

ClT47/1/ND	70	6/2/90
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MR DOUGLAS:  And so it really comes down to this, that the

mischief at which the section is aimed could,

for example, apply to the proposition which

Mr Justice Brennan put, namely the company which

advertises for drivers and misleadingly suggests that its trucks are fit to drive. But once that

employee is employed and a similar representation is made to[him he is not protected by the section

because there would be no reason, in logic, for

excluding from the ambit of the section the example

given by Mr Justice Brennan.

DAWSON J:	The second one?
MR DOUGLAS:	Well, the circumstance where the employee is

not yet an employee but there is an advertisement

which suggests that he can have a job with the

company driving safe trucks. If there is a relationship

there, there is no existing relationship, there

is a suggestion that he should enter into a

relationship.

DAWSON J: There is an arms length relationship which does

not exist when you have an employer and employee

relationship which is governed by different legal

principles.

MR DOUGLAS:  And similarly would be the situation with

shareholders and members of the company; and so

on. So it really is getting down to a distinction

between what is done innernally by a corporation

for the purposes of its trade or commerce and the

actual engaging in the trade or commerce in so

far as a relationship is thereby established with

persons in that trade or commerce and we see, .with

respect, no logical grounds for drawing any such

distinction because the words "in trade or commerce"

are ample to cover both the external and internal
manifestations of the trade or commerce of the

corporation.

BRENNAN J: Mr Douglas, I think this is perhaps just going

around w~tb words, but the choice, I suppose, lies

between seeing whether the conduct impugned in

the particular case is in its nature trading or

commercial conduct as distinct from the question

of whether there is conduct engaged in for the
purpose oi incidental to, whatever the preposition

may be, the trade or commerce of the corporation.

MR DOUGLAS:  That is the distinction which was being sought

to be drawn. So, you could say, for example, that

what is done vis-a-vis the owner of the building,

if there is something unsafe about the building

and there is a misrepresentation concerning that,

that has some trading or commercial flavour but because the other communication is internalized

it does not.

ClT47/2/ND	71	6/2/90
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BRENNAN J: I do not know whethe; the external/internal dichotomy

is helpful.

MR DOUGLAS:	No.
BRENNAN J: Except in	so far as it may illuminate the

character of the conduct.

MR DOUGLAS:  To take the example which had been given in argument

before of the communication to the owner of the building
about the safety, or otherwise, of the air-conditioning

vent in the presence of an employee or if the ambit of the

section is going to depend upon whether it was not, as

Mr Mason has suggested, a communication made with the

purpose of communicating to the owner as distinct from the

employee who overheard it, it really is "we will be dancing

on pins" and really the legislature has inserted a very

broad provision into the Act. If, in fact, it wants to

truncate the operation of a section it can, but it has made

it clear that it wishes to have a very general prohibition

and if, in fact, the general prohibition catches

conduct of the nature which is her~ in question,

if they decide that that was against their legislative

policy they can deal with it,but it is not for this Court
to seek to detract from the natural and ordinary meaning

of the words.

DAWSON J: And you say that meaning is that any commercial or

trading company that engages in conduct that is misleading

or deceptive, or is likely to mislead or deceive, is

guilty of an offence under the section?

MR DOUGLAS:	If it is conduct "in trade or commerce", yes.
DAWSON J: No, no, no.	I am rephrasing it and that is the way

you would rephrase it, is it not? "Any_ trading or commercial

company which engages in conduct that is misleading or

deceptive would be guiltv'.', on your argument, "of an

offence under the section"?

MR DOUGLAS:  No, Your Honour, because that states a proposition

more broadly than I have put it because - - -

DAWSON J: Well, you say that anything that a trading or commercial

company does is directed towards the trade or commerce

which is the reason for its existence.

MR DOUGLAS:  I do not know that I have said that,Your Honou~ If

I have, I withdraw it because there could be possibly things which are done by a trading or commercial company which

are not trading or commercial activities.

DAWSON J: Such as?

MR DOUGLAS: Giving gifts to charity, yes, that is one.

ClT48/l/JL	72	6/2/90
Concrete(2)

DAWSON J: But that aids its - - -

MR DOUGLAS:  It may, it may not, it is a question of

characterization.

DAWSON J: See everything that it does is directed to its trade.

MR DOUGLAS: Well, I am not sure that I am ready to embrace

that proposition, I cannot - - -

DAWSON J: It seems to me you do go as far as that.

MR DOUGLAS:	Yes, well undoubtedly trading and -financial corporations mostly engage in trade or comm.erce, that
is what they are set up to do.

DAWSON J: Everything that they do is incidental to their

trade or commerce but not necessarily in the trade

or comm.erce in which they engage.

MR DOUGLAS: Well, one can draw a distinction between that which

is incidental and that which is "in the trade or commerce"

DAWSON J: Indeed.

MR DOUGLAS:  But we would say that the giving of instructions

to an employee as to how to do particular work is

clearly something which is "in trade or comm.erce". There

may be matters which are incidental to it but that is not

one of them.

DAWSON J: And if it is merely incidental to trade or commerce you

would concede that that is not enough?

MR DOUGLAS:  If matters which are incidental to trade or comm.erce

are not caught up within the complexion of "in trade or

commerce". Our submission is that anything which is done,

and I am just repeating what Mr Justice McHugh said

in WRIGHT, for the purposes of its trade or commerce is

really trade or commerce.

DAWSON J: Well,that is what I thought you were saying, in which

case you would rephrase the section as I put it to you

first.

MR DOUGLAS:  No, Your Honour, because one could imagine things

which it does which are not for that purpose.

DAWSON J: Yes, and.they would be things which are merely incidental

to trade or comm.erce but not "in the trade or commerce''

which is the reason for its being.

MR DOUGLAS:  Not necessarily, Your Honour, because they could be of

a purely private character.

DAWSON J: Well, they could,but they could be merely incidental

in other ways, such as an instruction to an employee, which

of itself does not produce buildings in this case, merely

incidental to it.

C1T48/2/JL 73 6/2/90

Concrete(2)	(Continued on page 73A)
MR DOUGLAS:	But, Your Honour, it is only by the very activity

of the employees doing work and machines operating

that the company can, in fact build the building. The

building of the building - - -

DAWSON J: That does not really say more than the activities

are incidental to production of the final product.

(Continued on page 74)

ClT48/3/JL	73A	6/2/90
Concrete(2)

MR. DOUGLAS:  We are probably just going round and round,

Your Honour.

DAWSON J: Yes, but it demonstrates that a line has to be drawn

somewhere, if you will not accept the proposition

which I put to you.

MR. DOUGLAS:  If the activities are not in trade or connnerce,

obviously a line has to be drawn if the activities

are of a purely private nature and not in the

company's trade or connnerce. For example, one could

imagine a building as a building for the managing

director, or for a charity. That may not be trade or

connnerce. In those circumstances that may not be

within the contemplation of the section.

DAWSON J:  I think we understand.

MR. DOUGLAS: Otherwise, Your Honour, the necessary

elements of the section are made out, we say, and

whilst this may be thought novel, there is a large

amount of academic writing and we have given a

reference to the Court of those articles: two

articles have been written by Mr Justice French

and there is a helpful article by Mr Clark in the

Australian Bar Review article to which I have

referred, and Mr Justice McHugh refers to some of

that academic writing in his judgment in WRIGHT,

and this shows the scope which the section now has,

at least in the Federal Court and,subject to whatever

this Court says in this case, what it will have in the

future. For example, in a shareholding situation,

in the ORISON case, it has been found that there was

no restriction by reason of the rule in FOSS V

HARBOTTLE. You have got the passing-off action;

you have had a defamation action in GLOBAL SPORTSMAN

which has only been partially removed and there is

the case of GLORIE which we have referred to. It is

expanded into the area of professional negligence

and there are many other examples which I can ~--c
and which are included in those articles.

Mr Bennett, lastly, raised the question of

the constitutional validity of the provision. The

argument which he sought to raise in relation to its

constitutional validity does not seem to have any

particular relevance to this case and, therefore, I

do not address any submissions to it but as a

general matter we,, would say that that the section

is clearly valid in so far as it relates to

corporations. Unless there is anything further,
those are the submissions which we would wish to put

before the Court.

MASON CJ: Yes, thank you, Mr Douglas. Mr Solicitor for the

Connnonwealth.

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MR GRIFFITH:	The Court already has our contentions. As to our propositions in paragraph 1 as to the approach
of construction, it is perhaps sufficient if we
refer to the additional references we give. Firstly, to Your Honour the present Chief Justice in
PARKDALE CUSTOM BUILT FURNITURE V PUXU, 149 CLR 191
at 205.  As to the extent to which the construction
of section 52(i) should be infected by Part V of the
Act in which appears, we refer to the various judgments of Their Honours in the K & SLAKE CITY
FREIGHTERS PTY LIMITED V GORDON & G9TCH , 157 CLR 309
at the various page references given in paragraph 1.2 and I will not take the Court to those statements.

Turning to contention 2, it is our submission

that once a view is rejected that section 52(1) of

the Act is limited to statements or conduct directed

to consumers or to members of the public, no further

limitation can be read into its provisions.	We
would submit, picking up the exchange with

Your Honour Justice Dawson between Your Honour and

my learned frien4 Mr Douglas, that, in essence, for the

operation of section 52, there may be a victimless

contravention of the law, we would submit.

(Continued on page 76)

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MR GRIFFITH (continuing):  It is possible, of course, to

obtain relief by way of injunction and that is

commonly done by trade competitors. But we would

submit that it matters not that one isolates someone

who may hear an advertisement as being a potential

person affected. We would submit that just as in the

case of advertising one can say there is not an ele~ent
of mutuality of engagement in trade and commerce

between the person making the statement and any

potential recipient who may be affected in a commercial

way.

Perhaps another example of this is the position of Mrs Patrick, Mr Patrick's wife, in the STEELMA.INS case where she was regarded as being affected because

her personal life was affected: she gave up her job,

she moved to a new environment, et cetera. And,

of course, there is no limitation on the persons or
class of persons who may bring an action under

section 82 and the other sections of the TRADE

PRACTICES ACT.

Turning to contention 3, we would submit that

the terms trade and commerce are not terms of art

but should be given the broad construction

commensurate both with their meaning as a matter

of ordinary language and also their constitutional

signification. If we could pause here and make a

proposition which perhaps has not clearly yet been

made to the Court. We submit that for the purposes

of section 52(1) the expression extends to include
all matters comprehended within the expression

trade and commerce and section 51(i) of the

cONSTITU'iION, That is demonstrated, we submit,

because the same language is applied by -

section 6(2}(a)(i) and section 6(2)(a)(ii) of the

Act.- that is the extending provisions of the

Act.In accordance with those provisions

section 52(1) has an additional operation of applying

to any person who engages:

in conduct that is misleading or deceptive

or is likely to mislead or deceive -

in trade and commerce between Australia and places

outside Australia or in trade and commerce amongst the

States. We submit there is no reason to doubt that

the words trade and commerce be used consistently
throughout the Act so that their constitutional

signification in these parts of section 6(2)(a),

we submit, must carry over into the use and

section 51(i) of the Act in its primary operation.

And perhaps while we are referring to

section 6(2}(a), if we could make a point which would

seem to meet a theoretical ultimate contention of

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my learned friend,Mr Bennett, namely, there may

be an issue of validity arising in respect of
the operation of the Act under section 6 extended

by section 6(2)(h) in respect of persons other

than corporations, we would observe that the

extensive provisions of section 6(2) are
conjunctive and not disjunctive. That appears

from the "and" which is after paragraph (g).

So that, in that situation, we would submit that

the conjunctive operation could not have the effect,

even theoretically of making any constitutional

difficulty by reason of operation of section 6(2)(h)
but we agree with my learned friend that that

question does not seem to arise in this case for the

Court to consider.

BRENNAN J:  Why do you say that trade and commerce are not

terms of art? Are they not very much terms of art?

Must they not be?

MR GRIFFITH:  I am sorry, Your Honour. Did I slip in a "not"?

BRENNAN J:	I thought ·- perhaps I misheard you.
MR GRIFFITH:	Your Honour, if I could slip the 11not"_out.

What we say is that they should be given a broad

construction which is consistent with them

being so regarded. Your Honour, one

could pick that.up both.in respect of discussion

of- trade and commerce in connection with the

words themselves and also in the constitutional

sense.

BRENNAN J: What construction do you place upon them?

MR GRIFFITH:	Your Honour, we say that for the purpose of section 52 one should place the same construction
as is placed on trade and commerce for the purposes
of section 51 (i) of the CONSTITUTION.,
BRENNAN J: But the problems that we have faced other times

with regard to trade and commerce in the
constitutional context may not be precisely the

problem that arises in this case. Here we are

concerned with a particular kind of conduct and

given that it is incidental to,or for the purpose of,

a commercial undertaking, whether it is part of it or

not.

(Continued on page 78)

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MR GRIFFITH:  Yes, Your Honour. Well, as to that aspect,

Your Honour, our submission is that it is sufficient to say that it is in trade and commerce if it is with

respect to trade and commerce and we would submit,

Your Honour, that that could be freely translated

to say if it is with respect to business.

BRENNAN J:  But if you equate "in" with "with respect to"

you include in "with respect to", I should imagine,

that which is not within but without.

MR GRIFFITH:  Your Honour, if I use another expression -

"in the course of". We would say that is directly

in the heart, so that if activity is in the course

of we would submit, Your Honour, that is sufficient

in itself to be within the reach of the section.

BRENNAN J:  Perhaps that term in itself may be ambiguous.

I realise I am pressing you a little here but to say

that something is in the course of something else

may mean either that it happens contemporaneously

with the activity and is some way related to it or

that it is an integral part of the activity.

MR GRIFFITH:  Yes. Your Honour, we would substantially adopt

the exchange between my learned friend Mr Douglas and

Mr Justice Dawson as to some of the difficulties

which arise in this sort of issue.

DAWSON J:  But if you take your paragraph 3, that must be too

wide because you take someone who sets out to establish

a. business, has not a customer, has not advertised

to anyone, invests his capital, gets things together

and then dies and the enterprise falls to the ground;

your paragraph 3 would cover his activities but

he had never done anything except prepare to engage

in trade or commerce.

MR GRIFFITH:	Your Honour, there may well be no conduct then.
DAWSON J:	There is certainly conduct and he has done it for

.that· one has· to - if I can put this to you, what	purpose of providing goods or service8, particularly	is in my mind - draw a distinction between acts which
are in trade and commerce and acts which are preparatory to or incidental to, whatever the
appropriate phrase may be. It probably was
inappropriate in the cases, or at least I always found difficulty in understanding it in cases like
MARRICKVILLE and BEAL because there you were concerned
with the effect upon the freedom of the trade or
commerce which was ultimately going to take place, a
different question.

MR GRIFFITH:	Yes.	We would agree with Your Honour as to that.
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DAWSON J:  But acts which are preparatory to trade or commerce

are not in trade or commerce. Acts which are

incidental to trade or commerce are not in trade or

commerce.

MR GRIFFITH:  Yes. Of course, in the MARRICKVILLE case,

Your Honours, the extra issue that there the concern

was whether it was interstate trade and commerce.

So really, we would say, they did not deal with the

issue of trade and commerce at all but whether it

was interstate. So for that reason - - -

DAWSON J:  Well, whether it impeded the freedom of interstate

trade or commerce and, of course, if you impede the

preparation there is at least a good argument that you

impede the ultimate trade or commerce, but that is

•	another argument.	Here it is a much simpler
distinction.

MR GRIFFITH:	Your Honour, of course, the first task is to say what is trade and commerce.
DAWSON J:	No, what is "in trade or commerce".
MR GRIFFITH:	Your Honour, one starts with trade and commerce

and then what is "in trade or commerce", Your Honour.

Your Honour, once one has identified something as being trade and commerce in itself, we submit that

that is in the heart of the power and one does not,

adopting the MURPHYORES approach, have to go any further

to decide whether or not it is "in respect of' ,

"in the course of", or "in". We say that it must

follow, if it is identified as trade and commerce

in itself that that is sufficient.

DAWSON J:  I will just put this one last thing to you - and

the real question is whether the deception is "in

trade or commerce"?

MR GRIFFITH:  Yes. Well, Your Honour, perhaps if I could pick

up Your Honour's hand signal example which is an

interesting one, Your Honour, to show that one may

have an action which is just ordinary conduct as a

user of the road which one may say may constitute

conduct in the course of trade or commerce.

Your Honour, it may well, but we would submit it is

not, in that circumstance, conduct for the purpose of

the operation of section 52. There is a definition of "conduct" which would seem under section 4(2) of

the Act to exclude mere inadvertence. So that,

Your Honour, one does not have to say that the application of that example, in our submission, exposes a difficulty as to the approach of construction which is being submitted by the

respondent.	When one goes to section 4(2)(c),
Your Honour,	one sees a reference to doing or refusing
t o do an a c t ,	e t c e t er a , w i th an inclusion of refraining but

then saying "otherwise than inadvertently from doing

that act".

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DAWSON J:  The crux of what you say, Mr Solicitor, is that the

hand signal was inadvertent?

MR GRIFFITH:  Your Honour, if it is a case of inadvertence in

giving a hand signal - - -

DAWSON J: Well no, you positively give the wrong one: you

signal that you are going to turn right and you turn

left.

MR GRIFFITH: Well Your Honour, that may be relevant to the

question of whether or not it is "conduct", but

there could be two views about whether that is

inadvertence or not, Your Honour, it is the wrong

hand signal, but it might have been done because it

is inadvertent within the meaning of paragraph (c).

It is a matter of construction.

BRENNAN J: It is not refusing to do an act.

MR GRIFFITH:	Your Honour, the point we seek to make from this is that there is an issue of what is requisite
conduct for the purpose of the Act, and, Your Honour,
there are other qualifications: one - to pick up a point
raised by His Honour Justice McHugh when he said,
"Well, would it not have been possible to say a
trading or financial corporation"; well, we submit
Your Honour, that is already said by picking up the
definition of "corporation" which limits "corporation"
to basically trading or financial corporations and
territory corporations, et cetera, so that it is
necessary in considering the operation of section 52(1) to follow through these restrictions and extensions of definition, of course, in section 6, but we would
submit that it is -

DAWSON J: Well, just so that I understand it completely; if a

driver employed by a corporation, a trading corporation,

intentionally gives, on the road, a wrong - a misleading

hand signal, would you say that was within section 52?

MR GRIFFITH: Well, Your Honour, I would say that I would	have to consider the operation of the various provisions	of the Act, but there may well be an issue as to whether
that is conduct for the purpose of section -

DAWSON J: Well, he intentionally does it to mislead.

MR GRIFFITH: Well, Your Honour, I suppose possibly it could,

but it is a question of whether or not these various extensive provisions would pick it up or exclude it. We are dealine with possibilities rather thari absolute

answers to Your Honour's question, but, Your Honour, if

it does fall within the definition having regard to the

various extensions, well then, Your Honour, we would

submit that, for that reason, it would be within power.

If it is in - - -

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DAWSON J:  It is not a question of being within power; within

section 52.

MR GRIFFITH: Within section 52 as being within the course

of the business of the corporation, and, Your Honour,

we would submit that there - in Your Honour's example,

perhaps there is nothing surprising that that should

be the case, and we have referred to,in our first

two contentions,	what we submit is the appropriate
approach of	construction is to accept an extended

operation of one of the provisions in Part V, although

one can see that many of the other provisions have a

narrower operation. But the meaning, we would submit,

Your Honour, is clear enough in that context, once

one has identified the element, we would submit, of

what is trade and commerce and whether one says "in"

trade and commerce or whether one says, "in the

course of" trade and commerce, Your Honour, we would

submit that there is no problem in either case if one

has identified a particular activity which can fairly

be described as trade and commerce, and we would

submit, Your Honour, that does not have to be defined

by reference to the specific business activities

with which the corporation is engaged in, but talking

more generally of its business, as distinct from what
might be, as my learned friend Mr Douglas referred to,

other activities such as altruistic charitable

activity, or something of the sort, and, Your Honour, it

is not unnatural that the TRADE PRACTICES ACT should

have some words of direction to say, well, this Act is

concerned with corporations in their business activities,

just speaking generally. We submit, Your Honour, that

is sufficient to come within the reach of section 52.

So that, Your Honour, perhaps getting back to the

point where we were starting to make in contention 4

we say nothing turns upon the difference in section 52(1)

referring to conduct in trade and commerce, and the

expression, "with respect to", or we say, "in the course

of", we say it all really means the same thing in

operation and, as to this approach we accept the

dichotomy or the two-step approach that Your Honour the

present Chief Justice stated in the TASMANIAN DAM case,

158 CIR 1 at page 150;. where we say that the question of definition

of the subject-matter of the grant of power in section 51

is distinct from the question of whether a law answers

the description of being with respect to that subject-

matter so defined.

(Continued on page 82)

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MR GRIFFITH (continuing): And Your Honour there said, at

page 150, 158 CLR:

The argument presented in the present

case tends to obscure the difference between

two distinct and separate questions: (1) what

is the scope of the power; and (2) is the
law in truth a law with respect to the subject-
matter of the power, once its scope has been
ascertained. Characterization, the name given
to the process of arriving at an answer to

the second question, cannot begin until the

first question is answered.

We submit that this case is concerned with the

first question, namely what is the scope of the

powe~ and we submit that it is necessary merely

to ask, "What is included in the constitutional

conception of trade and commerce? Does the relevant

conduct incur in the course of that trade and

commerce?", and we say that the section does not

require that the conduct itself be trade and commerce

but merely that it occur in the course of trade

and commerce.

So that to read in a requirement that the

prohibited conduct must occur in relation to external

dealings of the corporation, we submit, introduces

an unwarranted and excessively technical distinction

that would rob the section of a substantial degree

of force. We say it is not confined to any particular

event which may occur in the conduct of the business

and this would seem to be reflected in the situation

when one has regard to analysis of, say, the manufacturing activities of the corporation.

We would submit that everything done for the

purpose of carrying out trading or commercial

activities is done in trade and commerce and that

includes, say, manufacture for the purpose of trade,

so that for BHP it would include the purchase of

of conversion of steel and it would also include	iron ore and we say it would include the process
activities in dealing with the relationships of
employers and employees. And perhaps it is sufficient to say that we, with respect, would adopt the approach
of Your. Honour Justice McHugh in the WRIGHT case. We have already had some part of that read to the
Court in (1989) 15 NSWLR 679, at page 694, at
part C of the page where Your Honour said:

But everything done for the purpose of

carrying out its trading or commercial

activities is in my opinion done as part of

a corporation's trade or commerce ..... its

trading and commercial activities is in my

opinion near the centre of a corporation's

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trade and commerce. Those concepts do not

exist independently of the sum of the

activities of the corporation and individuals

who engage in them.

But can we also refer to what Your Honour said on the next page also at part C, page 695:

Further, the failure to provide a reasonably

safe system of work and reasonably competent

staff in breach of an obligation to do so

is clearly an act done in trade or commerce.

And we would submit that this approach is supported

by the cases, some of which were referred to by

my learned friend, Mr Douglas, by reference to

the shipping cases and the others - we have some

supplemental citations which appear in our contentions,

paragraph 6.l which we would submit are apt in

considering the construction of section 52(1).

So that when one has regard to the construction of section 51(i), the trade and commerce provisions,

and bearing in mind, of course, that some of these

cases refer to section 98 as Justice McHugh referred

to in exchange with my learned friend, Mr Douglas,

we would submit that none the less that the line

of cases support laws dealing with aspects of the

employment relationship between an employer who

is engaged in trade and commerce and its employees

as being within trade and commerce.

The Court already has the citation to AUSTRALIAN

STEAMSHIPS LIMITED V MALCOLM, 19 CLR 298, where

the SEAMEN'S COMPENSATION ACT 1911 was held a valid

law and also, of course, HUDDART PARKER V COMMONWEALTH,

44 CLR 492, where the Court held valid provisions

of the TRANSPORT WORKERS ACT 1928, dealing with

the employment of persons engaged in interstate

and overseas trade.

(Continued on page 84)

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MR GRIFFITH (continuing): In the later case, to which the Court

has already been briefly referred~JOYCE V

AUSTRJ...LASIAN UNION STEAMSHIP NAVIGATION CO LTD,

(1939) 62 CLR 160, Chief Justice Latham reviewed

AUSTRALIAN STEAMSHIPS LTD V MALCOLM and at page 167-

I will not read all that is relevant, but after

reviewing what Their Honours said in the MALCOLM

case, the Chief Justice went on:

The Commonwealth Parliament, therefore, has

power to make laws with respect to the

relations of employers and employees who

are engaged in inter-State trade and commerce. And similarly Justice Evatt at page 175 said:

The case of HUDDART PARKER LTD. V THE

COMMONWEALTII, cited with approval by the

Privy Council in JAMES V THE COMMONWEALTH,

illustrates the wide reach of the commerce

power in Australia and suggests that it

includes a power to regulate the incidents

of the relationship of master and servant

where master and servant are co-operating

in the carriage of goods or the provision

of services in inter-State or overseas trade.

And we would submit that that proposition by

Justice Evatt is one which does not turn upon the

relevance of section 98 in situations where that

has been relevant. So that our submission is that

for the purpose of construction of section 52 of

the TRADE PRACTICES ACT, the employment relationship

should be regarded as central to trade and commerce

and once it is recognized that this is the

relationship in the heart of trade and commerce, we

would submit that that is sufficient. If the

employment relationship is trade and commerce, well

then we submit a law which operates on that thing

is necessarily in the course of trade and commerce or

with respect to trade and commerce, and no further

inquiry or examination as to remoteness or mutuality

is relevant. We note that the present Chief Justice

in the UTAH DEVELOPMENT CO .case which was also

referred to by my learned friend,Mr Douglas,

144 CLR 120. Mr Douglas gave citations to pages

127, 138, 152 and 157, but Your Honour the present

Chief Justice said:

There can be no doubt that the trade and

commerce power extends to the provision of

services in berthing and deberthing ships

travelling between foreign ports and

Australian ports and to the employment of workers in the provision of those services,

just as the pc:Mer extends to stevedoring operations

and to the employnait of waterside ,;..-orkers in

such operations in cormexion with such ships:

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And it is our submission that that discussion

in respect of the trade and commerce power is

apt to identify what we submit here is the heart

of trade and commerce for the purpose of the

TRADE PRACTICES ACT provision and for that reason

we would support the construction put by my learned

friend,Mr Douglas. Having said that, if I could

again point out to the Court that our intervention

was excited by the fact that my learned friend, challenge to validity of section 52 and our contentions in dealing with that aspect we no

longer need rely on for the purpose of our

submissions.

BRENNAN J: What role do you attribute to the word "consumer"

in the heading, if any?

MR GRIFFITH:  Your Honour, we would say really none. Your Honour,

we would adopt the approach of HORNSBY. We would

adopt the approach of construction of the provision

and,Your Honour, we would say that there is in no

way a limiting effect of the clear words of the

provision.

BRENNAN J: What then is the meaning of section 13 of the

ACTS INTERPRETATION ACT?

MR GRIFFITH:	Your Honour, we would say that it is not necessary to be invoked in this case because of the
fact that one has a clear meaning of the provision
which, perhaps if I could use the words of - - -
BRENNAN J: Yes,	I appreciate the force of that submission

in its traditional form. I jus.t do not understand

what is meant by saying that a heading is part of an Act, but yet it can be disregarded if you have

got clear words in the text.

MR GRIFFITH:  Your Honour, it is a question of looking at the

whole. I did not take the Court in detail to K & S

LAKE CITY FREIGHTERS which,we would submit,

Your Honour, in an apposite and relevant way, deals

with these issues of juxtaposition between heading;

particular sections; sections as a part of a

division, Your Honour, which has sections which by

and large are of narrower aspect. I could take the

Court in detail to that, but I was hoping it was

sufficient if I indicated that we agree with what

Your Honour Justice Brennan said at page 319;

what the Chief Justice said at page 312; what

Justice Deane said at page 3Zl..to324 and what

Justice Dawson said at page 325, but perhaps it is

summed up in a sense, Your Honour, to refer to what looking at the provision itself,he said:

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MR GRIFFITH (continuing):

that section goes beyond, but does not

contradict the purpose of, the other

provisions of Pt IV and does not render

those other provisions in any way less

effective.

Now, I appreciate, Your Honour, that is not

referring particularly to the heading. But,

Your Honour, we would submit that when one has regard

to the nature in which the Court has dealt with these

issues in HORNSBY; in PARKDALE CUSTOM BUILT FURNITURE

and also the heading is a matter dealt with in detail

by Justice Deane in K & SLAKE CITY FREIGHTERS. We

would submit, Your Honour, there is no inhibition to

the construction which we say is one which appears

complete on themce of the provision and we say there

is nothing to indicate, Your Honour, that there is

any narrowing operation dependent upon the interaction

with either the headings, the surrounding sections, or

some other part of the Act. Now, that is a matter of

judgment, Your Honour, but here our submission is,

Your Honour, one is dealing with provisions which do

seem to have the requisite lack of ambiguity as did

section 133 in the LAKE CITY FREIGHTERS case.

If, of course, one approaches it and_says, "There is a great ambiguity, it is necessary to do what we

can to resolve it." well, then, Your Honour, of

course the ACTS INTERPRETATION ACT provisions, the

other parts of the Act; can be called in too as aids.

But our submission is, Your Honour, that this is one

of these cases where one has the advantage of clear

meaning and it is not necessary to go there. One does

not cross-check back and say, as my learned friend, surprising if Parliament, when asked whether or not

the situation was covered by this provision, it said

that it was. In our submission, Your Honour, that

is not the relevant inquiry for this issue of

construction before the Court.

Or course, Your Honour, it is a fruitless

inquiry because one cannot ponder at all what would

have been the answer to that when one is talking

about a situation of closer to two decades ago,

Your Honour, and one must give the connotation now,

as it were, in our submission. If the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Bennett.

MR BENNETT:	Mr learned friend, the Solicitor-General for Victoria, did not speak to his submissions but he
handed up a document, two paragraphs of which I
feel bound to say something very brief about. I
will endeavour to emulate his brevity, perhaps not
to the same extent.  He says in paragraph 4 that

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It cannot be said on demurrer that the conduct

could under no circumstances be "in trade or

connnerce".

I only feel bound to deal with that because I would

be concerned if the case were to go off on the basis

of that submission by some revocation of special

leave or a failure to decide it. The issue, we

would submit, is fairly raised and clearly raised by

the statement of claim, perhaps with the addition

of the concession which was made, effectively, below

and certainly in this Court. It is true that the

statement of claim, at page 2, uses the words:

The said injuries and loss and damage were

occasioned to the Applicant by reason of

conduct of the Respondent in trade and connnerce

which was misleading or deceptive -

but the issue which was debated and which has been

the issue debated in this Court, is whether the

particulars support that mixed statement of fact and

law. What is, in effect, raised by the motion,

with the preliminary question of law rather demurrer, appearing on page 4, is whether, on the facts pleaded

in the particulars, this was in trade and connnerce

within the meaning of the section.

That issue, we would submit, is squarely raised.

The Court does not need to know exactly what the

nature of the building was; exactly what its purpose

was; exactly what function the task of the particular

worker had in relation to that building. The question,

we would submit, which has been debated adequately

in the Court today on all sides without knowing that

does not require that degree of knowledge.

The second matter is that my learned friend,

Mr Douglas, referred first to the definition of

"consumer!

(Continued on page 88)

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MR BENNETT (continuin&):  We concede that the word "consumer"

in the heading Consumer Protection"does not have the

same meanin?i as it does in the definition of "consumer".

The heading 'Consumer Protection"is a general subject-

matter giving a general indication of the nature of the
sections which follow. It certainly was not intended to
be confined to the definition of "consumer" and we would
not submit that it does, but nevertheless one can give

the words "c:ansumer protection", perhaps treated as a

phrase rather than as two individual words, a meaning

which has relevance in the present case.

My learned :q;iend then referred.to the defamation situation arid he

made the submission that there was a case where the Act

was being construed, as if section 52 was applied for

the protection of someone with whom there was no trade

and commerce, namely the person defamed. But, of course,

the trade and, commerce that is involved in that

situation is slightly different. It is analogous to

the passing-off case. The person defamed is like the

rival trader. He is not the person for whose benefit the

section was enacted. Che has to find conduct which is
misleading or deceptive vis-a-vis the public in the

case of passing-off and the reader in the case of

defamation. However, that having occurred the rival

trader or person defamed is then entitled, by virtue

of section 82 and the surrounding sections,to obtain a

remedy for damage he suffers because of the public being

misled or deceived. So the trade or commerce is that

between the person defamed and the members of the public

who read it and cause him to be affected in his trade

or commerce. That is the area one is talking about. Now,

whether the case on defamation would have survived had

it come to this Court again is a question one does not have

to decide. There are a number,as I indicated in my

submisRions, of Federal Court decisions which have taken

a very wide view.

(Continued on page 89)

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MR BENNETT (continuing): What I have put to this Court is

that it is possible for this Court to take one

of two approaches to those cases. It may either

say, "They all ought to be overruled and the

section has a narrower meaning.", or it may say,

"Those cases are distinguishable, they have to

be decided on the basis of particular facts and

the particular test but this is the test which

is now laid down.", and what we stress is that

none of the cases, except PATRICK V STEEL MAINS

are cases which go so far as to justify the decision
in this case.

My friend then referred to the reference in the second reading speech to some sections not

referring to consumers. We would submit it is clear that Senator Murphy, in that context, as

he then was, was referring to consumers in the

technical sense as opposed to the remarks where

he was referring to consumer protection.

My learned friend made, just before lunch,

a very short submission which he made in one sentence and then said nothing more about. It was inconsistent

with the way the case was conducted below and it

was inconsistent with what I had submitted or what

I had indicated I believed to be the case of the

respondent. My friend submitted that even if there

were no underlying trade and commerce, nevertheless

the engagement of an employee and the agreement

to pay a salary in exchange for services was itself

trade and commerce.

In other words, if a person such as a barrister,

to take the example in STREET's case, who was clearly

not in trade and commerce, engages a secretary,

even though the barrister is not engaged in trade
and commerce, because he is paying the secretary
money in exchange for services, that relationship

becomes trade and commerce. That submission,

we would submit, is not supported by a single case

and is totally contrary to the whole line of authority,

both constitutional and trade practice~ in relation

to the meaning of trade and commerce.

Those words simply do not and have never been

held to include every case where an employer engages

the services of an employee and we would submit

that the trade and commerce in that sense cannot

be invoked in that way. Indeed, it is certainly

inconsistent with the passage in STREET's case.

I referred this morning to Mr Justice Dawson's

judgment in that case.

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MR BENNETT (continuing):  It is 63 ALJR 745 - it was not

necessary for me this morning to deal with the first

part of His Honour's remarks in relation to trade and

commerce but I should perhaps do so now very briefly. The first way it had been put in that case, that the barrister was engaged in trade and commerce, is

referred to by His Honour at page 745c, in the first

column against the word "regarded" just below the

letter C, and it is the paragraph beginning "the plaintiff's

argument" if Your Honours have the Australian Law Reports.

His Honour Justice Dawson there said, against the letter C:

As I understand it, this is said to be so

for two reasons. First, because the
charging of a fee is now sufficient to
bring the provision of any service within

the description of trade or, at any rate,

commerce.

Then, a few lines lower down:

Both of these contentions are, I think,

fallacious. In any event, they involve

ascribing to the words "trade" and

"commerce" in section 92 a new and

different meaning - an enlarged

connotation - beyond that which they

originally bore. Upon any accepted view

that is impermissible.

And, we would respectfully adopt what fell from

His Honour in that remark. But, in any event it would

be a totally novel proposition to accept what my learned

friend put to Your Honours just before lunch and then

said no more about.

My learned friend referred to the judgment of

Justice Toohey in MENHADAN's case,

1 FCR 542, and I should very briefly remind Your Honours

that what His Honour said in that case was that it was

the trade and commerce of the advising bank that was

involved not the trade and commerce of the parties who
were parties to the underlying transaction.	So, the case

is not authority at all which assists my friend in relation

to how far back trade and commerce goes.

(C9ntinued on page 91)

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MR BENNETT (continuing):  It appears at page 545 where, at about

point 3 against the words "not identify" in the left-hand

margin, His Honour said:

However, when the statement of claim is read

in its entirety, it is apparent that what is

alleged against Citibank is that it was carrying

on the business of banking, that Pima or

Northlake ..... was a customer of Citibank and

a borrower from it of money to finance a mining

project. In those circumstances I am satisfied

that the provision of information to Menhaden

was capable of constituting conduct in the trade

or commerce of Citibank. I express it that way

because of the nature of the motion before the

court and because, in the absence of evidence,

it would be inappropriate to go further.

That was an interlocutory application but it is important

that it was its own trade and commerce, not some extension

of the trade and commerce of someone else in relation to

which it was performing an advisory role. My learned

friend submitted that there was no commercial

relationship between the advertiser and the viewer.

That, in my respectful submission, does not matter.

There is a potential relationship between them and in

that sense the trade and commerce of the viewer with

the advertiser are involved and that is sufficient to

invoke the section.

In relation to the exchange between Your Honour

Justice Dawson and my learned friend Mr Douglas, we

would respectfully adopt what fell from Your Honour and,

in particular, that the misleading and deceptive conduct

must itself be of a commercial character or, if one can en vis ion the adjective, of a trade and commerce character

and that, we would submit with respect, is the true

construction of the section. That brings me, if I may

jump ahecrl a moment, to the final submission of my learned

friend, the Solicitor-General for the Commonwealth, because he put to Your Honours that one reason why one

cannot look at the headings and one cannot use section 15AB
is that there is no question of ambiguity here.	We

would submit, with respect, that one finds the ambiguity

in the very matter which has been the subject of debate between the two sides with the Court in these proceeclings.

0.ne can read sect ion 52 as meaning that any conduct while one is engaging in trade and commerce is sufficient;

in other words, one takes the objective view which

Justice Deane referred to and says so long as one is

engaging in trade and commerce that is sufficient,

anything one does is capable of being conduct within

section 52, or one can take the other view. Now,

there is an arguable proposition both ways. That is

sufficient to invoke whatever is necessary for the

ambiguity to look at the headings.

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MR BENNETT (continuing):  And we would submit that looking

at the headings, looking at the second reading

speeches, and so on, makes it clear which meaning

is intended.

My learned friend, the Solicitor, also referred

to section 6. He submitted, and it may have been

a slip of his tongue, I am not sure, but he submitted

that subparagraph 6(2)(a)(i) is the subparagraph

referring to trade and commerce between Australia

and places out of Australia and the other suhparagraphs

of that paragraph were matters which extended the

operation of the section. They are, in fact, matters

which restrict the operation of the section.

What is important about that is that one reads

them in conjunction, as he later submitted, with

paragraph (h) so that when one reads (h) and takes

out "the corporation" one then provides the

constitutional background by inserting one of the

provisions in 6(2)(a)(i). But the importance of

that is it shows that reference to trade and commerce

in section 52 was not put there to achieve
constitutional validity. That was achieved by

the confining of trade and commerce in the manner

done in section 6(2)(a)(i) and by the other means

in section 6.

But the words themselves were not inserted

to have there a meaning coincident with the meaning

of section 5l(i) of the CONSTITUTION. And that,

again, suggests that they are intended to have

a narrower meaning as the word "in" itself suggests.

There was some debate between the Bench and

my learned friend the Solicitor-General for the

Commonwealth about the hand signal example and

it is significant that both of my learned friends

on that side of the bar table were ultimately forced

to put the proposition that the misleading or

deceptive hand signal hypothesized in the example

was something which fell within section 52 and

it is almost impossible on their argument in this

case to exclude it.

(Continued on page 93)

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MR BENNETT (continuing):  We would submit it is that which

illustrates very clearly the reductio ad absurdum of

the argument because there one has something which

happens to be misleading or deceptive conduct which,

itself, has no relationship except a temporal one

with the carrying on of trade and commerce, which

cannot possibly have been in the contemplation of

the legislature. The problems arising in the

inconsistencies between that and State motor vehicle

legislation are enormous. It would have to have the

consequence, for example, that there was real

difficulty in the validity of some State legislation

on that subject and where it applied to conduct in

driving which happened to be misleading or deceptive.

We would submit that that perhaps more clearly

than anything else illustrates that one must take

the more restrictive view of the meaning of the

section, a view which requires nothing more than

reading the subsection as a whole rather than taking

each word and giving each word its maximum literal

meaning.

My learned friend then referred to the transport

union cases, the cases involving seamen's compensation

and control of trade and commerce in that sense. Those

cases, I would submit, are ones which fit into the
category of cases that have been held to fall within
the constitutional provision, certainly partly because
of other placita of section 51 to some extent, but

also because they were matters that were seen as

necessary to trade and commerce. That is a long way

from this case. The Commonwealth has not in this

legislation sought to impose a code upon the

work ~ace in relation to trade and commerce nor

on the highway in relation to misleading and

deceptive conduct where trade and commerce is being

carried on.

That, perhaps, is ultimately the reason why the

case put by the respondents must, in my respectful

submission, fail because how can it be said that

there was an intention in this legislation to impose -
to control - so much of conduct in the workolace as
happened to be misleading or deceptive conduct but

to separate that from all other forms of negligent

conduct in the work~ace; to say where there is

conduct in the workplace which causes injury, if

it is ordinary negligence, ordinary absence of

safe system of work, any of those things; that is

a matter for the existing State legislation but

the moment there is something that one can say happens to be misleading or deceptive, that is

something which will be taken out of that legislation

and dealt with by the TRADE PRACTICES ACT in the middle

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of a section headed "Consumer Protection" and we

would submit that construction really has to be

stated to be rejected and, in our respectful

submission, the appeal should be allowed, may it

please the Court.

MASON CJ:  The Court will reserve its decision in this matter.

AT 3.40 PM THE MATTER WAS ADJOURNED SINE DIE

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