Robin Pty Ltd v Canberra International Airport Pty Ltd (includes summary dated 28 July 1999) [1999] FCA 1019 (28 July 1999)

Last Updated: 30 September 1999

FEDERAL COURT OF AUSTRALIA

Robin Pty Ltd v Canberra International Airport Pty Ltd

[1999] FCA 1019

TRADE PRACTICES - Misleading and deceptive conduct - respondents made statements concerning the effect of aircraft noise upon residents of a proposed subdivision if rezoning of that land was permitted - whether the representations were made "in trade or commerce" - whether representations complained of must occur in the representor's trade or commerce.

WORDS AND PHRASES - "in trade or commerce"

Trade Practices Act 1974 (Cth) ss 51A, 52

Airports Act 1996 (Cth)

Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, applied

Glorie v WA Chip & Pulp Co Pty Ltd [1981] FCA 224; (1981) 55 FLR 310, not followed

Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 27 FCR 149, discussed

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1, distinguished

Fasold v Roberts (1997) 70 FCR 489, referred to

Plimer v Roberts (1997) 80 FCR 303, referred to

Meadow Gem Pty Ltd v ANZ Executors & Trustee Co Ltd [1999] ATPR (Digest) 53,626, considered

Eighth SRJ Pty Ltd v Merity [1996] NSWSC 86; (1997) 7 BPR 15,189, referred to

Meates v Attorney-General [1983] NZLR 308, cited

Unilan Holdings Pty Ltd v Kerin [1992] FCA 179; (1992) 35 FCR 272, cited

O'Brien v Smolonogov (1983) 53 ALR 107, cited

Bevanere Pty Ltd v Lubidineuse [1985] FCA 134; (1985) 7 FCR 325, cited

Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112, cited

ROBIN PTY LIMITED (ACN 008 504 149) v CANBERRA INTERNATIONAL AIRPORT PTY LIMITED (ACN 080 361 548) & ANOR

N566 OF 1999

GYLES J

28 JULY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N566 OF 1999

BETWEEN:	ROBIN PTY LIMITED (ACN 008 504 149) Applicant
AND:	CANBERRA INTERNATIONAL AIRPORT PTY LIMITED (ACN 080 361 548) First respondent TERRENCE MARK SNOW Second respondent
JUDGE:	GYLES J
DATE OF ORDER:	28 JULY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondents' costs of the application, but excluding the costs of and incidental to the application by the respondents to lead further evidence from Mr Sloan.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N566 OF 1999

BETWEEN:	ROBIN PTY LIMITED (ACN 008 504 149) Applicant
AND:	CANBERRA INTERNATIONAL AIRPORT PTY LIMITED (ACN 080 361 548) First respondent TERRENCE MARK SNOW Second respondent

JUDGE:	GYLES J
DATE:	28 JULY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 Robin Pty Limited ("the applicant") owns land to the south of Canberra Airport. The Queanbeyan City Council ("the Council") has approved rezoning of the land for residential subdivision, and the matter is now before the responsible Minister in New South Wales. Canberra International Airport Pty Limited ("the first respondent") is the operator of Canberra Airport, and Mr Terrence Snow ("the second respondent") is its Executive Chairman. The applicant alleges that the respondents have breached s 52 of the Trade Practices Act 1974 (Cth) by engaging in misleading and deceptive conduct in the course of making public statements, in May this year, concerning the effect of aircraft noise upon residents of the subdivision if it is permitted.

Facts

2 The applicant's property, known as The Poplars, is approximately 500 acres near Queanbeyan, and has been used for grazing for many years. It adjoins a residential area known as Jerrabomberra. The land is due south of Canberra Airport, which is approximately 8 kilometres away, and is higher than the airport. The main airport runway runs north/south. The Poplars is divided by Tompsitt Drive, which runs east/west, into northern and southern sections. In 1991, the applicant was approached by the Council with a proposal to rezone The Poplars for future urban expansion of Queanbeyan. There is some evidence that this had been in prospect for many years before that. The rezoning proposal was held up for various reasons, and was still current in 1998. One of those reasons was ascertaining the projected 2020 ANEF 20 contours, which is discussed below.

3 Mr David Larcombe, a director and shareholder of the applicant, had had discussions from time to time on behalf of the applicant with Mr Colin Alexander, the Managing Director of Jerrabomberra Park Pty Limited, a company which had developed an adjoining residential area. Those discussions concerned the possible purchase by Jerrabomberra Park Pty Limited, or an associated company, of that part of The Poplars property which might be rezoned residential, or some other joint arrangement whereby the applicant would provide land, with the capital and expertise being provided by Mr Alexander's company.

4 Mr Larcombe says that in view of the lack of experience or expertise of the applicant as a subdivider or developer, he had always anticipated that the actual development of the property would be undertaken by an experienced developer, either after sale of the property to that developer or through some joint arrangement whereby the applicant provided the land. Accordingly, he expected that any transaction in furtherance of the subdivision of the property would take place shortly after finalisation of the rezoning, such transaction being either a joint venture arrangement or a sale of the property.

5 On 29 May 1998 the Commonwealth Government awarded a long-term lease of Canberra Airport to the first respondent, including the right to operate the airport. To adopt current parlance, the airport was thus privatised. The second respondent has been the Executive Chairman of the first respondent at all material times.

6 The Airports Act 1996 (Cth) required that the first respondent submit a draft Master Plan for the approval of the Minister for Transport and Regional Services, for a 20-year horizon to 2019. The first respondent decided to extend its draft Master Plan to the year 2020. Amongst the matters required to be specified in the draft Master Plan were the following:

"...

(d) forecasts relating to noise exposure levels; and

(e) the airport-lessee company's plans, developed following consultations with the airlines that use the airport and local government bodies in the vicinity of the airport, for managing aircraft noise intrusion in areas forecast to be subject to exposure above the significant ANEF levels;

..."

7 The reference to "ANEF" relates to Australian Standard 2021 - 1994, Acoustics - Aircraft noise intrusion - Building siting and construction ("the Standard"). The objective of the Standard, according to its preface, is that:

"it provides guidance to regional and local authorities, organizations and others associated with urban and regional planning and building production on the location and construction of new buildings and on the acoustic adequacy of existing buildings in areas near aerodromes."

"ANEF" stands for Australian Noise Exposure Forecast, which is a single-number index for predicting the cumulative exposure to aircraft noise in communities near aerodromes during a specified time period. The higher the ANEF value, the greater is the noise exposure. Equivalent ANEF values at individual positions around an airport are combined on a map to form ANEF contours. If a building site is outside the ANEF 20 contour, noise from sources other than aircraft will usually dominate. In that case, there is usually no need to proceed further in the Standard as the construction of the building need not specifically be designed to provide protection against aircraft noise intrusion. I should say that there is an issue in the particular circumstances of this case as to whether being outside the ANEF 20 contour was sufficient to exclude further consideration of the Standard.

8 In October 1998 Airservices Australia endorsed an ANEF plan for Canberra Airport for the year 2020 ("the 2020 ANEF"), upon what was described as accelerated growth forecasts, representing more traffic than was in fact estimated by the applicant. It mapped the contours ANEF 20, 25, 30 and 35. This plan was included in the draft Master Plan and there were plans depicting how the 2020 ANEF varied from the 1997 ANEF (which had been made in 1987) and the 1998 ANEI 20 (taken from the actual 1998 experience).

9 A substantial portion of the northern part of The Poplars was included within the 2020 ANEF 20 contour, but the southern portion was outside this contour. The applicant decided to defer the rezoning application for the northern part of The Poplars.

10 The first respondent made clear in the draft Master Plan that it was strongly opposed to any residential development of The Poplars. This was no doubt because it anticipated that complaints about noise from residents of the area would impede the future 24-hour operation of the airport and would be likely to inhibit the proper expansion of the airport. By this means, and by direct communication, the first respondent made it known to the Council that it was opposed to the rezoning application.

11 On 15 September 1998, the first respondent's noise consultant, Mr Cooper, briefed the Council on the topic of noise. The first respondent established a noise reference group, which held meetings at the airport on 15 December 1998 and 1 March 1999, attended by persons from the first respondent, the airlines, RAAF, Airservices Australia, Federal and local governments and the community. The Council was invited to send representatives, but none attended the meetings.

12 On 3 March 1999 the Council resolved to defer the draft Local Environmental Plan in relation to the northern part of The Poplars, but to proceed with the draft Local Environmental Plan in relation to the southern part of The Poplars and to prepare a Development Control Plan and various other things for that purpose. To be effective, the draft Local Environmental Plan required (and still requires) the approval of the relevant New South Wales Minister.

13 On 12 March 1999 the first respondent wrote to the Council, referring to the Queanbeyan Age report of the Council's decision of 3 March, making a number of complaints both as to substance and as to the process which had been followed. The letter was copied to a number of persons in public office, together with the applicant and Mr Alexander. By letter of 26 March 1999 Mr Larcombe, for the applicant, replied to the first respondent's letter of 12 March in kind, copying it to a similar but wider group of persons holding public office. By this time, there had been some media discussion of the aircraft noise issue.

14 The respondents then took the view that, as the councillors apparently had closed minds on the topic, it would be necessary to take steps to mobilise local public opinion to influence either the Council or the Minister or both to nip the subdivision in the bud. It engaged the services of a public relations and media consultant to assist in devising a campaign for this purpose.

15 On 24 May 1999 the first respondent caused to be published in the Queanbeyan Age a full-page advertisement commencing:

"AN OPEN LETTER TO THE CITIZENS OF QUEANBEYAN FROM TERRY SNOW, EXECUTIVE CHAIRMAN OF THE CAPITAL AIRPORT GROUP.

Why would anyone want to live under a flight path?"

The final paragraph was as follows:

"So, would anyone want to live under a flight path? I don't believe they would. The Queanbeyan Council appear to think that about 500 householders would be happy to do so. Tell us how you feel by filling in the coupon below."

A cut-off coupon appeared below, under the words "Have your say, have your say, have your say". The text was highly critical of the proposal.

16 The Queanbeyan Age of 26 May 1999 included an article headed:

"Airport owners attack moves to develop The Poplars

´It's a recipe for a slum'"

The article quoted Mr Snow verbatim expressing some highly critical views about the subdivision, and ended (under a photograph of Mr Snow pointing to a map):

"BE WARNED: Capital Airport Group executive chairman Terry Snow has warned the proposed development of The Poplars, to the west of Jerrabomberra, would make life ´a misery' for everyone."

The first and second respondents each accept the correctness of the statements attributed to the second respondent on behalf of the first respondent.

17 The Canberra Times of Saturday, 29 May 1999, included on the front page of the portion of the newspaper known as "Saturday Forum" a half-page colour advertisement with a diagram showing The Poplars development and its relationship with the airport, with the heading:

"Can you imagine anyone wanting to live in a housing development just 340m under an airport's main flight path?"

The text was again vigorous in its criticism of the proposal.

18 On 3 June 1999 the solicitors for the applicant sent a letter by facsimile to the second respondent, complaining about a number of the statements made and seeking undertakings and the publication of a corrective advertisement.

19 On the same day, Mr Larcombe received a leaflet in his letterbox, published by the respondent, which was four pages and in colour. It repeated much of the material which had been included in the earlier advertisements and included further critical material. Mr Larcombe was informed by real estate agents and a consultant in Canberra that the same leaflet was distributed to households throughout the Canberra/Queanbeyan region.

20 On 4 June 1999 the solicitors for the respondent refused to give the undertakings sought. These proceedings were commenced promptly thereafter.

Proceedings

21 After earlier mentions before Einfeld J, the matter came before me for substantive interlocutory relief on 21 June 1999. Once the issues were outlined and the evidence read on an interlocutory basis, it seemed to me that the proceedings should be dealt with by way of urgent final hearing, rather than by way of interlocutory hearing, if that were practical. The parties agreed. I then fixed the matter for hearing. This necessarily involved a tight timetable for preparation. The parties kept to that timetable and the matter proceeded as listed. Although it took a little longer than expected, and was interrupted by other commitments, the hearing was completed on 22 July 1999.

22 The applicant complains of a number of the statements made in the various publications. It says some are simply misleading or deceptive, some are misleading or deceptive because they are not properly qualified, and some are made misleading or deceptive by reason of facts which are omitted. The applicant relies upon s 51A in relation to most of the statements it complains about. The applicant in particular relies in various ways upon the circumstance that the respondent said nothing about the Standard, the 2020 ANEF 20 contour or the draft Master Plan in any of these publications. The applicant put that the first respondent, as the lessee and operator of the airport, was in a special position of knowledge and responsibility in relation to dissemination of information about aircraft noise.

23 The respondents deny that any statements were misleading or deceptive, assert reasonable grounds to satisfy s 51A where that is applicable, and say that this was, in effect, a public debate on a public issue and that the reasonable reader would recognise the publications complained of as being the vigorously stated opinions of a company with a legitimate partisan commercial interest.

24 The respondents also raised the threshold question as to whether the conduct in question was "in trade or commerce" within the meaning of s 52. It is logical and convenient to deal with that issue first.

Trade or Commerce

25 Both parties agree that the principles to be applied are those laid down by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, particularly in the judgment of Mason CJ, Deane, Dawson and Gaudron JJ, at 602-604. The general principle was stated in the following way (at 603):

"... Alternatively, the reference to conduct "in trade or commerce" in s. 52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. So construed, to borrow and adapt words used by Dixon J. in a different context in Bank of N.S.W. v. The Commonwealth, the words "in trade or commerce" refer to "the central conception" of trade or commerce and not to the "immense field of activities" in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business." (footnote omitted)

26 This was further elucidated when their Honours said (at 604):

"... What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. In some areas, the dividing line between what is and what is not conduct "in trade or commerce" may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character."

27 As Toohey J said, at 614:

"... The question is not whether the conduct engaged in was in connexion with trade or commerce or in relation to trade or commerce. It must have been in trade or commerce."

28 Mr Nicholas QC, for the respondents, argued that the trading and commercial activities of the first respondent are the provision of the services and amenities of Canberra Airport and that s 52 is properly limited in its application to the conduct of the first respondent in its trading or commercial dealings with people in the course of the provision of those services and amenities. He put that the fact that the development of The Poplars is considered not to be in the best interests of the airport or of its profits was not to the point. He submitted that accepting that the representations were made for the business purposes of the first respondent, and, indeed, to protect the trading or commercial activities of it from being adversely affected in the future, this did not constitute conduct which, of its nature, bore such a trading or commercial character as to be within the essential conception of trade and commerce referred to by their Honours. The conduct of the first respondent was not towards persons with whom it has or may have dealings in the course of its central commercial activities or transactions, but was rather directed to the ratepayers and voters of Queanbeyan and, indirectly through them, the Council and the Minister.

29 Mr Ellicott QC, for the applicant, pointed to the fact that the High Court in Nelson (supra) contemplated that promotional activities in relation to, or for the purposes of, supply of goods and services to potential customers would be included, even though directed to an unidentifiable section of the public. He submitted that once the Council had passed the resolution on 3 March approving a draft Local Environmental Plan, the respondents set out on a course of conduct for the purpose of stopping the applicant's proposed residential subdivision in order to protect the first respondent's business and to ensure that it continued to trade profitably in the future. It was put that the respondents perceived that the proposed residential development would hinder the existing business and its proposed development of that business by reason of residents making complaint about the operation of the airport. These submissions as to the facts are plainly correct and are not really in dispute. Mr Ellicott then submits that these facts are indistinguishable in principle from those considered by Morling J in Glorie v WA Chip & Pulp Co Pty Ltd [1981] FCA 224; (1981) 55 FLR 310.

30 In that case, the respondents were sued as representatives of the Forest Products Association of Western Australia, an association of companies engaged in the timber and woodchipping industries. The Western Australian Forests Department joined with the association and its members in paying for the production of a documentary film called "Forests Forever", intended to explain to the public the basis upon which the Forests Department was managing the South West Forest for various uses, and as a renewable resource for commercial purposes. The critical factual findings made by his Honour on this issue were as follows (at 320):

"... He [counsel for the respondents] contended that the film was not exhibited in trade or commerce. He described the film as being in the nature of a political exercise. He argued that viewers of the film were addressed as members of the electorate with the object of educating them in matters of forest management so that they would become sympathetic to the industry. However, this submission does not take sufficient account of all the circumstances in which the film came to be made. The film was produced as part of the activities of the trade association of which the first respondent was a member. The impetus for its production came, in part, from the desire to answer criticism of the industry. It was prudent, if not necessary, that such criticism be answered in order that the commercial interests of members of the association might be protected. The evidence clearly shows that the production of the film was seen as a public relations exercise, which plainly it was. The involvement of the Forests Department in the production of the film did not make it any the less a trade or commercial activity of the association. The first respondent carries on substantial wood-chipping operations in Western Australia. 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."

31 The gravamen of his Honour's reasoning is found later on the same page, where he said:

"... In the present case, a real reason for exhibiting the film was to protect indirectly the commercial interests of the members of the association, including the first respondent. In these circumstances, I think it is correct to characterize the exhibition of the film as being in trade or commerce."

32 Mr Nicholas sought to distinguish Glorie. I shall deal with that submission later. He then submitted that Glorie would have been decided differently if heard after the decision in Nelson. There is undoubtedly much to be said for this point of view, but, sitting as a single judge, I must have regard to the manner in which Glorie has been dealt with both in, and subsequent to, the decision in Nelson. Glorie was referred to by each of counsel for the appellant and the respondent in Nelson, but the only reference to it in the judgments is by McHugh J (who was in dissent) in the following way (at 619):

"... But if the conclusion that a section found in a Part enacted to protect consumers creates a cause of action against corporate consumers produces some surprise, it is no greater than the surprise that is produced by holding that s. 52 also regulates the conduct of a corporation in its relations with members of the community in their capacities as government officials, shareholders and environmentalists or electors: see Merman Pty. Ltd. v. Cockburn Cement Ltd.; Orison Pty. Ltd. v. Strategic Minerals Corporation N.L.; Glorie v. W.A. Chip & Pulp Co. Pty. Ltd." (footnotes omitted)

33 In Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 27 FCR 149, Morling J was again the trial judge. The Tobacco Institute of Australia Ltd had published an advertisement in 1986 in several Australian newspapers on the topic of the health effects of passive smoking. The Australian Federation of Consumer Organisations Inc ("AFCO") complained that there were misleading statements in the advertisement. The advertisement was framed as "A message from those who do ... to those who don't". It dealt with what is known as "passive smoking". It contended that there was little evidence and nothing which proved scientifically that cigarette smoke caused disease in non-smokers. It concluded in the following way:

"Alright, cigarette smoke may be annoying to some non-smokers, but how shall we deal with these problems? Confrontation? Segregation? Legislation?

No.

We think annoyance is neither a government nor a medical problem. It's a people problem. Smokers can help by being more considerate and responsible. Non-smokers can help by being more tolerant. And both groups can help by showing more respect for each others rights and feelings.

Don't let intolerant minority pressure groups use you to create divisions between Australians."

34 His Honour, after setting out the relevant passage from the majority judgment in Nelson, said (at 157):

"Cigarettes are articles of commerce and restrictions on their use by consumers may render them less attractive as such, resulting in adverse economic consequences for their manufacturers and distributors. No doubt the participation by a trading corporation in a debate on a matter of public or social controversy will often not be conduct in trade or commerce. But the publication of the advertisement in the present case should not be viewed in isolation. It was published by a trading corporation which, so it may be safely inferred, was concerned to ensure that the sale of cigarettes would not be adversely affected by a belief on the part of the public as to a possible causal link between cigarette smoke and disease in non-smokers. The existence of such a link, or of evidence suggesting it, could affect the sale of cigarettes in various ways, for example, public pressure to restrict the smoking of cigarettes in places where non-smokers are present.

The advertisement had the potential, and was no doubt intended, to protect the commercial interests of cigarette manufacturers and distributors. Accepting that conduct "in trade or commerce" is confined to conduct which is itself an aspect of activities which, of their nature, bear a commercial character I think the proper conclusion is that the publication of the advertisement was conduct "in trade or commerce". Advertising products for sale is an aspect or element of the selling of those products. The selling of the products is indisputably a trading or commercial activity. Advertising may serve a number of purposes. One purpose may be to refute criticism of the seller's products thus protecting the market for them. The advertisement published by the respondent was calculated to achieve such a purpose"

His Honour did not refer to Glorie but his reasoning is consistent with it.

35 On appeal to the Full Court (Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1) the decision below was upheld. Sheppard J did not examine the authorities on this point but concluded (at 16):

"... that the most likely reason for the publication of the advertisement was to promote or maintain sales of cigarettes for commercial reasons, ie gain. In my opinion this inference, if not the only one open, is the most compelling and the most likely."

36 Foster J said (at 25):

"... Even the most cursory reading of it would, in my view, have been sufficient to convey to an ordinary reader a message favourable to the consumption of cigarettes as an article of commerce. The advertisement was persuasive in tone. It sought to allay fears which it suggested were commonly and erroneously held that the inhalation of tobacco smoke in the air could be harmful. The name of the appellant, appearing as the authoriser of the advertisement, would, in my view, when coupled with its obvious message, be quite capable of conveying to such a reader that the appellant had a commercial interest in assuaging community concerns about the harmful effects of inhaling environmental tobacco smoke. The general tenor of the advertisement, its wide exposure, and the name of the appellant combine to create an irresistible impression that it was promotional material designed to advance the cause of cigarette smoking and to assist in the sale of cigarettes."

His Honour only referred to Nelson when considering the issue. Glorie was referred to by him but in passing and in another connection.

37 Hill J said (at 44):

"... it may be inferred, that the corporation which placed the advertisement did so to allay the fears of those who smoked and thus discourage them from quitting and to discourage those who did not smoke from applying pressure on those who did to reduce the occasions on which they smoked, or perhaps give up altogether. In either way the advertisement on its face was designed either to promote the further sale of cigarettes or to arrest a decline in such sales.

...

There can be no doubt that a corporation, formed to promote the interests of a particular industry or whose activities are directed at representing members of that industry in promotional activities, acts "in trade or commerce" when conveying representations about that industry's product to the general public."

The only reference that his Honour made to Glorie was in relation to another issue.

38 The effect of these two cases was summarised in the following way by Sackville J in Fasold v Roberts (1997) 70 FCR 489 at 531:

"A person undertaking public presentations, such as exhibiting films or publishing advertisements, engages in conduct in trade or commerce if the presentations are designed to advance or protect the commercial interests of the exhibitor or the publisher, or of trading entities represented by the exhibitor or publisher."

Mr Ellicott adopts this and says that the advertisements and interview here were plainly of that character.

39 Mr Nicholas contends that each of these cases stands for a narrower proposition, namely, that the presentations must be designed to actually promote the core commercial activities - in this case, the services provided by the airport. In my view, the decision in Glorie cannot be limited in the way proposed by Mr Nicholas. It is clear from the passages that I have set out from the judgment that the film in that case was a public relations exercise, designed to deflect criticism of the methods of logging which were being utilised, and was designed to counter public antipathy which might pose 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. In my view, this is properly seen as activity designed to protect the continuing operations of the company and its ability to log timber in the way it wished, rather than promoting the sale of timber.

40 Analysis of AFCO is a little more difficult. AFCO was decided after Nelson. All of their Honours brought the conduct under the promotion umbrella opened by the High Court and, in effect, concluded that the advertisement was a promotion for the sale of cigarettes. Mr Nicholas can certainly gain comfort from the manner in which their Honours expressed their respective reasons. However, the terms of the advertisement raise a question. I have set out what I regard as the most important parts of the advertisement above and a copy of the advertisement as it appeared can be seen at 38 FCR 21 in the judgment of Sheppard J. In my view, it is most naturally seen as a plea to non-smokers not to press for confrontation with or segregation of smokers particularly by legislation, rather than promotion of the sale of cigarettes. The message was that smokers should not support the pressure groups who were active in proposing regulatory controls upon smoking in public to government. It is odd that this aspect of the advertisement was not referred to by any of their Honours. I must take it that their Honours, for the purposes of the section, had regard to the indirect rather than the direct effect of the advertisement.

41 I have read both the decision of Sackville J in Fasold v Roberts (supra) and the decision on appeal sub.nom Plimer v Roberts (1997) 80 FCR 303 and, because of the very different factual basis, do not find them to be of any particular value in resolving the problem before me. I do note, however, that both Sackville J, and Lindgren J on appeal, refer to Glorie without any disapproval.

42 Glorie is a long-standing decision of this Court which did not receive any hint of disapproval in Nelson itself or any of the subsequent cases. If it were to be overruled, AFCO would have been an occasion to do so. On the other hand, it predates Nelson. The actual decision in AFCO proceeds on the basis that the conduct in question was the promotion of the sale of cigarettes, and was therefore consistent with Nelson. The correctness of Glorie on the present issue was not considered in any of the decisions to which I have referred.

43 In these circumstances, I am not relieved of the responsibility of deciding whether Glorie is consistent with Nelson. In my opinion, the better view is that it is not. A public relations exercise of the kind explained by Morling J cannot be categorised as the promotion of the sale of timber or as otherwise within the central conception of trade or commerce as explained by the High Court. It is not an aspect or element of transactions which of their nature bear a trading or commercial character. I cannot find the kind of indirect promotion of timber products in that case that was found about cigarettes in AFCO. That is certainly not the manner in which Morling J analysed the matter, as the passage cited above reveals.

44 Even if I be wrong about that, in my view the present conduct is one step removed from Glorie. In that case, it was the timber industry which was being promoted and explained. Here, the conduct is not directed to the trade or commerce associated with the airport at all - it is concerned with the potential subdivision of the applicant's land. Even if it were possible to categorise the conduct in Glorie as being the indirect promotion of timber products, the conduct here cannot be seen as the indirect promotion of the services provided by Canberra Airport. It was political in purpose and effect, albeit with the aim of protecting the business from interference in the future. In my opinion, to hold otherwise would be to ignore the reality that the High Court in Nelson made a deliberate choice between a wide and narrow view of the phrase "in trade or commerce" in s 52 and chose the latter.

45 Mr Ellicott advanced the alternative submission that the conduct complained of occurred in his client's trade and commerce, citing Meadow Gem Pty Ltd v ANZ Executors & Trustee Co Ltd [1994] FCA 1222; [1994] ATPR (Digest) 53,626 and the reference to it by Sackville J in Fasold v Roberts (supra) at 531. I have considerable difficulty in accepting that as a matter of construction of s 52 a party may be in breach where that party is not a participant in the relevant trade or commerce. For example, I would not have thought that disparagement of goods manufactured by nuclear power by a conservationist with no commercial interest in the outcome would be caught by the section (cf Eighth SRJ Pty Ltd v Merity [1996] NSWSC 86; (1997) 7 BPR 15,189 at 15,203 (line 48)-15,204 (line 10)).

46 Meadow Gem was a strike-out application on the basis that no cause of action was disclosed, and so is of limited application. The plaintiff sued on assurances given by government representatives as to the solvency of the Pyramid Building Society Ltd ("Pyramid"). It was apparently conceded that conduct engaged in for the purpose of promoting the business (sic) for some other corporation would be caught, and it was held to be arguable that the statements were made with the intention of encouraging investors to maintain their trading relationship with Pyramid, citing Glorie and Meates v Attorney-General [1983] NZLR 308.

47 The concession would, no doubt, be correct if the representor was acting as agent for the corporation, or if it were acting in the course of its own business in making the representations. As counsel who made the concession in Meadow Gem relied upon Unilan Holdings Pty Ltd v Kerin [1992] FCA 179; (1992) 35 FCR 272, it is difficult to imagine a wider concession being made by him as it would have been in the teeth of the effect of Unilan as he put it. The authorities cited do not, in my opinion, assist. Glorie was a case where the party making the representations was, for all relevant purposes, the agent of the timber companies and, in any event, I have held the representations were not made in trade or commerce as now to be understood. The reference to Meates is puzzling, as that was a case of alleged negligent misstatement, having nothing to do with trade or commerce.

48 Whilst Meadow Gem may have been correct so far as a strike-out application was concerned, I cannot agree that the making of statements by a "detached ... bystander who had conducted its own objective studies" but was not an agent of Pyramid would be in the trade or commerce of Pyramid. In the present case, this alternative argument is only being considered because I have held the conduct was not in the first respondent's trade or commerce. That being so, the first respondent is the equivalent of an officious bystander so far as the trade or commerce of the applicant is concerned.

49 In any event, I regard the question as academic in the present case. I cannot discern any relevant existing trade or commerce of the applicant. The applicant no doubt intends to dispose of its property to best commercial advantage. I have set out the effect of the evidence of Mr Larcombe on this issue. However, in the absence of a rezoning, it cannot be said that there is any relevant trade or commerce in the land, either in globo or in subdivided lots. It may be that some of the persons who read the first respondent's material are potential purchasers of the land - either in globo or in subdivision - if it comes onto the market. It may also be that some of them may retain a memory of these advertisements at that time. However, I do not regard that nexus as causing the conduct to be in any existing trade or commerce of the applicant. In some cases, there may be a nice question as to when trade or commerce begins, but potential trade or commerce is not sufficient. The objective of the relevant conduct of the respondents is to prevent rezoning. It is only upon rezoning that the potential for trade or commerce may be realised. I therefore do not need to decide the issues which would have arisen had there been a transaction or transactions in the land. That would have involved considering cases such as O'Brien v Smolonogov (1983) 53 ALR 107, Bevanere Pty Ltd v Lubidineuse [1985] FCA 134; (1985) 7 FCR 325, Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112 and Eighth SRJ Pty Ltd v Merity (supra), the first three of which predated Nelson.

50 Even if I be wrong in this, the publications were plainly made in order to influence the readers, as members of the community, for political purposes. Any effect upon them as potential purchasers would be a side wind. They were not made in relation to, or for the purposes of, the supply of goods or services to actual or potential customers as required by Nelson.

Other Issues

51 This conclusion of law is sufficient to dispose of the case. The remaining issues going to the merits of the case are of some detail and difficulty, raising important aspects of s 52 proceedings both as to liability and relief. The matter has been accorded considerable priority by reason of its urgency, as it involves controversy concerning a rezoning application presently before the responsible Minister in New South Wales. I do not believe that it is appropriate to delay delivery of this judgment whilst I deliberate upon the remaining issues and formulate reasons in relation to them. I also take into account that many of the primary facts are documentary or are deposed to in affidavits and are not the subject of contest. In case the matter goes further, it is convenient that I indicate my findings in relation to some contentious issues which were raised in cross-examination.

52 I regard Mr Larcombe as a witness of truth. He was pressed by Mr Nicholas as to the reasons for not proceeding with rezoning of the northern portion of the land. Although there is scope for debate about the effect of all his answers, in my view he did not accept that the reason was actual unsuitability because of aircraft noise. Rather, he made a tactical withdrawal in order to concentrate on the southern portion which would have less noise affectation than the northern portion.

53 I regard the second respondent, Mr Snow, as, generally speaking, a witness who told the truth. He made a number of concessions in the course of cross-examination, which I need not summarise. However, I am not satisfied that he was completely frank in relation to the omission of reference to the Standard, the 2020 ANEF 20 contour and the draft Master Plan from all of the publications. I have little doubt that such reference was omitted deliberately as it did not assist the cause. I am also not satisfied that Mr Snow genuinely believed that the subdivision would become a slum or that all the evidence available to the respondents clearly indicated that any (meaning all) future residents of The Poplars would be exposed to an unacceptably high level of aircraft noise.

54 I was not assisted by any particular impressions gained from the demeanour of other witnesses.

Conclusion

55 I dismiss the application. I order that the applicant pay the respondents' costs of the application, but excluding the costs of and incidental to the application by the respondents to lead further evidence from Mr Sloan which occupied the time of the Court on 6 and 7 July 1999. Although the respondents were successful, the application was belated and the applicant was perfectly entitled to oppose the granting of what was an indulgence to the respondents.

I certify that the preceding fifty five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 28 July 1999

Counsel for the Applicant:	Mr RJ Ellicott QC Mr DB Studdy
Solicitor for the Applicant:	Gilbert & Tobin
Counsel for the Respondents:	Mr WH Nicholas QC Ms L McCallum
Solicitor for the Respondents:	Mallesons Stephen Jacques
Date of Hearing:	5, 6, 7, 8, 9, 21 and 22 July 1999
Date of Judgment:	28 July 1999

FEDERAL COURT OF AUSTRALIA

ROBIN PTY LTD v CANBERRA INTERNATIONAL

AIRPORT PTY LTD

[1999] FCA 1019

SUMMARY

Introduction

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court's reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but does not form part of and is no substitute for the judgment of the Court.

Summary of Judgment

Robin Pty Limited ("the applicant") owns land to the south of Canberra Airport. The Queanbeyan City Council has approved rezoning of the land for residential subdivision, and the matter is now before the responsible Minister in New South Wales. Canberra International Airport Pty Limited ("the first respondent") is the operator of Canberra Airport, and Mr Terrence Snow ("the second respondent") is its Executive Chairman. The applicant alleges that the respondents have breached s 52 of the Trade Practices Act 1974 (Cth) by engaging in misleading and deceptive conduct in the course of making public statements, in May this year, concerning the effect of aircraft noise upon residents of the subdivision if it is permitted.

For conduct to be in breach of s 52, it must be conduct "in trade or commerce".

The respondents successfully argued that the conduct complained of was not in trade or commerce.

It was thus unnecessary for the Court to decide whether, on the merits of the case, the respondents had been guilty of misleading or deceptive conduct as alleged by the applicant.

Gyles J

Sydney

28 July 1999

The full text of the judgment and this summary are available at www.fedcourt.gov.au