Concrete Constructions (NSW) Pty Limited v Nelson

Concrete Constructions (NSW) Pty Limited, the applicant, sought special leave to appeal from a decision of Einfeld J in the Federal Court of Australia. The respondent, Mr Nelson, a workman employed by the applicant, suffered injuries when a grate he was standing on fell in an air-conditioning shaft. Mr Nelson alleged that his foreman had made a misleading or deceptive representation regarding the grate's fastenings, in contravention of the Trade Practices Act 1974 (Cth). The applicant contended that the facts pleaded did not give rise to a cause of action under the Act.

The central legal issue before the High Court was whether a representation made by an employer to an employee concerning the nature of work to be performed, in the context of their employment relationship, could constitute conduct "in trade or commerce" for the purposes of the Trade Practices Act 1974. The applicant argued that such representations were purely incidental to the employer-employee relationship and fell outside the scope of "trade or commerce" as contemplated by the Act.

The applicant submitted that the representation made by the foreman to Mr Nelson about the bolts securing the grate was not made "in trade or commerce". They argued that the representation was made in the course of the employment relationship, which is distinct from the broader concept of trade and commerce. While acknowledging that some Federal Court decisions had extended the reach of "trade or commerce" to representations made in the context of employment negotiations or business sales, the applicant contended that these cases did not support the proposition that a simple factual statement by a foreman to a worker during the performance of their duties could be considered conduct in trade or commerce. The applicant sought to have this issue determined definitively, as it had the potential to dispose of the entire claim.