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Concrete Constructions (NSW) Pty Limited v Nelson

Concrete Constructions (NSW) Pty Limited v Nelson

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Case Copied 6 February 1990 142 min read

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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

ClT 1/1/HS 1 6/2/90

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)

ClTl/2/HS 2 6/2/90
Concrete(2)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1990] HCATrans 3
Decision Date

CaseChat Overview and Summary

Concrete Constructions (NSW) Pty Limited (the appellant) appealed to the High Court of Australia against a decision concerning the application of section 52 of the *Trade Practices Act 1974* (Cth). The dispute centred on whether a misleading or deceptive statement made by a foreman to a labourer regarding the condition of a worksite constituted conduct "in trade or commerce" for the purposes of the Act. The appellant argued that while the statement was misleading and made by a corporation engaged in building construction, it did not fall within the scope of section 52.

The central legal issue before the High Court was the interpretation of the phrase "in trade or commerce" as it applies to section 52 of the *Trade Practices Act 1974* (Cth). Specifically, the Court had to determine whether a statement made by an employee of a corporation to another employee, in the context of carrying out the corporation's business activities, could be considered conduct "in trade or commerce" within the meaning of the section. The Court was not concerned with the definition of "trade" or "commerce" themselves, but rather the prepositional phrase that limits the scope of conduct to which the section applies.

The High Court reasoned that section 52 of the *Trade Practices Act 1974* (Cth) is concerned with conduct that affects the public or a section of the public in their dealings in trade or commerce. The Court held that a statement made by a foreman to a labourer, even if misleading and made in the course of the employer's business, was an internal communication between employees and did not engage with the public or a section of the public in their commercial dealings. Therefore, such conduct was not "in trade or commerce" for the purposes of section 52. The appeal was allowed.

Orders