Concrete Constructions (NSW) Pty Limited v Nelson

[1989] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S50 of 1989

B e t w e e n -

CONCRETE CONSTRUCTIONS (NSW)

PTY LIMITED

Applicant

and

GRANT ANTHONY NELSON

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Concrete

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 7 AUGUST 1989, AT 10.08 AM

Copyright in the High Court of Australia

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

with my learned friends, MR D.A. COWDROY and

MR R. GRACIE, for the applicant. (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)

MASON CJ:	Yes, Mr Bennett.
MR BENNETT:	Your Honours, I have an outline of submissions

which I hand to the Court.

MASON CJ:  Thank you.

MR BENNETT:  Your Honour, the deferral f the decision in

the first matter means I have to deal with both

1 and 2 of this document.

MASON CJ:	Yes.
MR BENNETT:	Your Honours, if I can deal first with the

objection taken in the other case, in this case
there was, in effect, a total demurrer because

the question at page 1 of the application book

which was decided by Mr Justice Einfeld was:

"Do the facts pleaded and particularized in

the Statement of Claim give rise to a cause

of action under the Trade Practices Act 1974?"

If that is answered favourably to my client on

any appeal the action is over so it is not a case

like my learned friend's case where there are further

issues still to be tried.

It is true, of course, that deciding that

issue the way it has been decided does not finally

determine the matter. It is an issue which finally
determines it one way but not the other . But

we would submit that is true of any demurrer and

this is analogous to a simple demurrer to the whole

of the statement of claim. And as was said in

SWISS ALUMINIUM, one looks to the substance, not

to the form, in determining whether it is a matter

which involves a real issue.

Your Honours, the issue itself is of enormous

importance. The short issue raised in this case,

perhaps in starker form than that in the other

case, is whether representations made in the course

of employment are representations in trade and

commerce.

The facts here were very simple:  a workman

was asked to remove a grate which was fixed vertically

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in an air-conditioning shaft; he was told by his

foreman that there were three bolts on top and

three bolts underneath; he undid the three bolts

on top, there were no bolts underneath and the

grate on which he was standing fell and he fell

into the shaft.

So there was a simple representation of fact

which is said, against us, to be misleading or

deceptive in trade and commerce. And we simply

say that the representation was not made in trade

and commerce at all; it was made in and about

the relationship of employer and employee. And

when one looks at the classic formulations of trade

and commerce it just cannot be stretched to this

sort of situation.

There have been some decisions in the Federal

Court getting close to it. There is one decision

of Mr Justice Wilcox in the STEEL MAINS case in

which there was a representation to an intending

managerial employee about the nature of his duties

of where they be performed and how important they

were and that was held to be in trade and commerce.

And there is a number of cases, one involving

the sale of an egg run and one involving the sale

of a beauty salon which were said to be in trade

and commerce.

But nothing suggests and none of these cases

suggest that a mere representation by a foreman

to a worker in the course of a contract of employment

can be in trade and commerce. That is clearly an important issue. As we have said, it is an issue which potentially affects a large number

of possible claims in New South Wales. The matter
is urgent; it should be decided now before it
goes to the Full Court because many of those claims

may be barred as the three year period gets closer

and the work cover legislation was enacted in 1987.

The issue for employers and insurers, of course,

is also urgent because people do not know how to

organize their affairs and adjust premiums and

so on without knowing whether claims of this sort

can be brought under the TRADE PRACTICES ACT.

So the matter is of great importance.

The normal objection that this Court will

not have the benefit of the views of the Full Court

does not apply, Your Honours, we would submit

because while it is true that the New South Wales

Court of Appeal in the other case did not deal

with the trade and commerce question we would submit

that Your Honours do have the benefits of the views

of three judges on that issue, Mr Justice Lee,

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in the other case, Mr Justice McHugh, dissenting
in the other case, and Mr Justice Einfeld in this

case. So Your Honours do have the views of

three judges even though Your Honours do not have

the view of a Full Court on this question.

MASON CJ:  No, and we do not have the view of the Full Court

which might be regarded, in effect, as the principal

court that deals with questions arising under the

TRADE PRACTICES ACT.

MR BENNETT:  Your Honours do not but, of course, under the

cross-vesting legislation these questions can be

decided as these two cases illustrate by either

a State court or the Federal Court and we would

submit that the counterva ing factors going to the irr. ortance of the is ue, the urgency of the

issue ~ad the extent really to which the issue

is one of constitutional law ultimately - it does

not depend on the day to day administration of

the TRADE PRACTICES ACT, it depends on rather broader

issues as to what trade and commerce mean and we

would submit that bearing in mind the judicial
opinion Your Honour has at the moment that factor
is outweighed by the urgency and importance of

the issue.

DEANE J:  Mr Bennett, the Federal Court has ordered that

the appeal be expedited. What effect does that

have in the sense of what time frame are we looking

at?

MR BENNETT:	Your Honours, as I understand it - and this is not based on any inquiries I have made in this
case - one would expect to have it heard well before the end of the year but, of course, there is then
a period in which judgments have to be written
and then another application for special leave
brought and the practical situation is you would
not be back here before next year and then, of
course, there would be a further delay until the
appeal were heard.

The only other factor I wanted to mention

is that referred to in l(b) and l(c) and that is that if leave is granted in right there would be

a distinct advantage to this Court in having the

two matters heard together because they would be

able to look at the question of section 52 in trade

and commerce, A, in the applied representation

case, B, in the express representation case.

If, in the other case, Your Honours were to

grant special leave because of the importance of

the issue and then decide it on the same basis

as the majority of the Court of Appeal, the presence

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of this case would enable the important TRADE it might, in that way, be avoided in the other

case. And we would submit, in all the circumstances,

it is appropriate that special leave be granted.

I understand the grant of special leave is not

opposed by the respondents.

MASON CJ: Is that correct, Mr Douglas?

MR DOUGLAS:  That is so, if Your Honour pleases.

MR BENNETT: If the Court pleases.

MASON CJ:	The Court will stand these matters down until 2. 15; that is the first and second matters in
the list.

AT 10. 17 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

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UPON RESUMING AT 2.17 PM:

MASON CJ:  Mr Bennett, does this application raise a

constitutional question?

MR BENNETT:  No, Your Honour, it raises the - only indirectly.

It would not directly.

MASON CJ: Yes. Well, there is no need for us to determine

the question at this stage but it may be necessary

to give attention to that possibility because in the

event that it does raise a consitutional question

it would be necessary to give notice, - - -

MR BENNETT:  But for more abundant caution we will certainly

do that, Your Honour.

MASON CJ: Yes. Well, you might give attention to that.

There will be a grant of special leave in

this case.

MR BENNETT: If the Court pleases.

AT 2.18 PM THE MATTER WAS ADJOURNED SINE DIE

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