Village Building Company Limited v Canberra International Airport Pty Limited [2004] FCAFC 240 (31 August 2004)

Last Updated: 31 August 2004

FEDERAL COURT OF AUSTRALIA

Village Building Company Limited v Canberra International Airport Pty Limited [2004] FCAFC 240

TRADE and COMMERCE – Trade Practices Act 1974 (Cth), s 52 – ‘in trade or commerce’ – statements made in the context of public and political debate – representations made for the purpose of securing the performance of statutory duties – representations designed to advance, maintain or protect commercial interests – representations made to persons with whom there is no commercial relationship


Trade Practices Act 1974 (Cth) ss 2A, 52
Airports Act 1996 (Cth) ss 70, 71, 75, 77, 79, 80, 81, 84
Air Services Act 1995 (Cth) s 7


Glorie v WA Chip & Pulp Co Pty Ltd [1981] FCA 224; (1981) 39 ALR 67 considered
Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 applied
Robin Pty Ltd v Canberra International Airport Pty Ltd [1999] FCA 1019; (1999) 179 ALR 449 discussed
Hearn v O’Rourke [2003] FCAFC 78; (2003) 129 FCR 64 cited
Barto v GPR Management Services Pty Ltd [1991] FCA 659; (1991) 33 FCR 389 cited
Martin v Tasmania Development and Resources [1999] FCA 593; (1999) 163 ALR 79 cited
Tasmania Development and Resources v Martin [2000] FCA 414 cited
Stoelwinder v Southern Health Care Network [2000] FCA 444; (2000) 177 ALR 501 cited
Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169 cited
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1 distinguished
Plimer v Roberts (1997) 80 FCR 303 cited











THE VILLAGE BUILDING COMPANY LIMITED v CANBERRA INTERNATIONAL AIRPORT PTY LIMITED
ACD 7 of 2004

FRENCH, SACKVILLE and CONTI JJ
SYDNEY (HEARD IN CANBERRA
31 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 7 of 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	THE VILLAGE BUILDING COMPANY LIMITED ACN 056 509 025 APPELLANT
AND:	CANBERRA INTERNATIONAL AIRPORT PTY LIMITED ABN 14 080 361 548 RESPONDENT
JUDGES:	FRENCH, SACKVILLE and CONTI JJ
DATE OF ORDER:	31 AUGUST 2004
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 7 of 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	THE VILLAGE BUILDING COMPANY LIMITED ACN 056 509 025 APPELLANT
AND:	CANBERRA INTERNATIONAL AIRPORT PTY LIMITED ABN 14 080 361 548 RESPONDENT

JUDGES:	FRENCH, SACKVILLE and CONTI JJ
DATE:	31 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 In 1999, Canberra International Airport Pty Ltd (‘CIA’), which is the lessee and operator of Canberra Airport, published forecasts of aircraft noise levels in the vicinity of the Airport up to the year 2050. This publication was viewed by a land developer in the area as an attempt to inhibit future planning approvals south of Canberra Airport and so to limit possible consequential constraints upon the Airport’s operations. The developer, The Village Building Company Ltd (‘Village’), commenced proceedings against CIA alleging that it had engaged in misleading or deceptive conduct in trade or commerce, in contravention of s 52 of the Trade Practices Act 1974 (Cth) (‘TP Act’). The essence of the complaint was that CIA had inflated its estimates of future noise levels with a view to affecting the deliberations of planning authorities in the area.

2 Finn J held however, that the conduct complained of was not conduct in trade or commerce for the purposes of the TP Act, a finding that was fatal to Village’s claim. Village has appealed, pursuant to leave granted by Emmett J, against that decision. For the reasons set out below, we are of the opinion that Finn J was correct and that the conduct complained of was not in trade or commerce.

PROCEDURAL HISTORY

3 On 13 December 2002, Village commenced proceedings in the Australian Capital Territory District Registry of this Court against CIA and Airservices Australia (‘AsA’) alleging that they had engaged in misleading or deceptive contract in trade or commerce in contravention of s 52 of the TP Act. The conduct complained of arose out of the publication of contour maps showing forecast noise levels in and around Canberra Airport up to the year 2050. Village’s concerns about the forecasts related to their impact on future planning approvals for developments which it wished to undertake on land known as Tralee, located near Queanbeyan in New South Wales, south of Canberra Airport.

4 Pre-trial steps were directed and taken, including the filing on 14 May 2003 of a Further Amended Statement of Claim (‘FASC’). The primary Judge made orders for the separate trial and determination of questions relating to whether the conduct of both respondents was ‘in trade or commerce’ and whether the alleged conduct of AsA in providing endorsements of the forecast was engaged in as part of carrying on a business by it: Village Building Co Ltd v Canberra International Airport Pty Ltd [2003] FCA 1195.

5 The hearing at first instance was conducted on the basis that the parties accepted, for the purposes of the trial of the separate issues, that Village could establish that the impugned conduct had occurred. On 25 February 2004, the primary Judge delivered judgment in which he held that the conduct alleged against CIA was not in trade or commerce and that the conduct alleged against AsA was not engaged in as part of carrying on a business by it for the purposes of s 2A of the TP Act: Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133; (2004) 208 ALR 98. On 29 March 2004, he dismissed the claim against CIA.

6 Pursuant to leave granted by Emmett J on 28 April 2004, Village appealed from that part of the judgment of the primary Judge given on 25 February 2004 that related to the characterisation of CIA’s conduct as not in trade or commerce. It also appealed from his Honour’s order dismissing its application on 29 March 2004. No issue arises on the appeal concerning his Honour’s finding that the conduct alleged against AsA was not engaged in as part of carrying on a business.

BACKGROUND FACTS

7 The following account of the background facts is largely taken from the primary Judge’s judgment.

8 Village, the owner of Tralee, is a land development company. Tralee is located within the north/south corridor between Canberra and Queanbeyan in which aircraft movements are concentrated, apparently in consequence of noise abatement procedures imposed by AsA. The land is zoned for rural and environmental uses. Village has applied to the relevant authorities in New South Wales to have the land re-zoned for residential purposes.

9 In 1998, CIA became the lessee of Canberra Airport. It is responsible for the conduct of the Airport’s business in accordance with the requirements of the Airports Act 1996 (Cth) (‘Airports Act’). CIA has opposed residential development at Tralee on the ground that the construction of housing under the flight paths will inevitably lead to noise complaints and conflicts between the operator of the Airport and local communities. CIA has been concerned that conflicts of this kind will generate pressure to impose constraints on the operations of the Airport.

10 AsA is a body corporate established by s 7 of the Air Services Act 1995 (Cth). AsA controls flight paths for aircraft flying into and out of Canberra Airport and implements noise abatement procedures.

11 The requirement to prepare a master plan for Canberra Airport is imposed on CIA by s 70 of the Airports Act. The master plan, a draft of which must be submitted to the Minister for approval (ss 75, 81), must specify, inter alia, forecasts relating to noise exposure levels and CIA’s plans for managing aircraft noise intrusion in areas forecast to be subject to exposure ‘above the significant ANEF levels’ (s 71(2)(d), (e)). A master plan remains in force for five years (s 77(1)).

12 ANEF is an acronym for ‘Australian Noise Exposure Forecast’. An ANEF is expressed as a contour map joining points of projected equal noise levels in the vicinity of an airport. The contours are graded in units of five, from 20 to 40, a higher unit number indicating a greater exposure to noise. The contour set may relate to a particular year, in which case it is based on a forecast of aircraft movement numbers, aircraft types, destinations and a given set of runways for that year. Alternatively the ANEF may be an ‘ultimate capacity’ forecast, in which case it may incorporate several sets of ‘particular year’ forecasts that relate to progressive stages in the development of an airport within a definite time horizon.

13 At all material times, it has been an Australian Government policy that ANEF contours be used as land planning criteria around Australian airports. The ANEF system provides the basis of Australian Standard AS 2021 2000 (Acoustics – Aircraft noise intrusion – Building siting and construction).

14 CIA purchased its lease of Canberra Airport in May 1998. Later that year, it began the process of public consultations which must be undertaken before submission of a draft master plan to the Minister (ss 79, 80). CIA commissioned the preparation of an ANEF for the year 2020 (ANEF 2020). ANEF 2020 was endorsed for technical accuracy by AsA on 2 October 1998 and was included in the draft master plan then in preparation so as to satisfy the noise forecast requirement of s 71(2) of the Airports Act (although the Act does not specifically require that an ANEF be included). The draft master plan was approved by the Minister on 23 August 1999.

15 Later in 1999, Mr Byron, the managing director of CIA, decided that CIA should prepare an ultimate capacity ANEF for Canberra Airport. He considered such a move to be sensible for CIA because of CIA’s desire to be able to inform relevant authorities, the community and other interested parties about the forecast growth of the airport and the resulting likely long-term impact of aircraft noise within the region. The year 2050 was selected as the outer year for the new ANEF. AsA endorsed the new ANEF (ANEF 2050) for technical accuracy on 11 January 2002.

16 CIA is currently investigating the possibility of obtaining approval for a new ‘off-set landing’ flight path. The effect would be to reduce aircraft noise over some 700 households located at Jerrabomberra and increase noise over Tralee.

17 The primary Judge found that CIA has sought positively to influence public opinion and political and governmental decision-making in matters of land use and planning, particularly in relation to development in the north/south corridor. His Honour also noted (at 106 [32]) that Mr Byron in cross-examination:

‘(i) accepted that CIA had sought to ensure that on the southern approaches to the airport land remained zoned rural or commercial;

(ii)	disclaimed that ANEF 2050 was produced to influence land use planning decisions though he accepted that via the Australian Standard AS2020-2000 the ANEF would have an impact on land use planning; and
(iii)	indicated that he did not consider either that community hostility to CIA on account of aircraft noise would affect the commerciality of the airport or that further restrictions resulting from moving flight paths, noise sharing or curfews would affect the long-term value of the airport (seemingly because of the manner in which airports are regulated as businesses).’

18 The master plan itself records that Canberra Airport is conveniently located close to the city centre, but well away from residential areas. The plan states that:

‘[i]t is important for the long term sustainability of the airport that these planning principles continue and that future aircraft operations take account of the increasing community sensitivity about aircraft noise.’

THE PLEADED CASE

19 Village pleads that CIA engaged in conduct in contravention of s 52 in four respects.

20 First, par 13 of the FASC pleads the following:

‘[CIA] has engaged in misleading and deceptive conduct or conduct which is likely to mislead or deceive by publicly claiming that the ANEF contours which are applicable and are "in force" at Canberra Airport are the ANEF 2050 when those ANEF contours are not properly or validly applicable to the Canberra Airport in accordance with AS 2021’.

21 The particulars of falsity allege that the ANEF 2050 for Canberra Airport does not comply with the requirements for an ANEF set out in Australian Standard AS 2021 2000 and relies on an improper method of determining average aircraft movements for the purpose of assessing the ‘ultimate capacity’ of the Airport. It is also alleged that the ANEF 2050 has never been validly endorsed by AirServices Australia (‘AsA’) in accordance with AS 2021 2000.

22 The occasions on which CIA made the public claims referred to in par 13 are alleged to include the following:

• On 11 January 2002, as soon as the ANEF 2050 had been endorsed for technical accuracy by AsA, it was published on CIA’s website.
• On 30 August 2002, CIA wrote to the Minister for Transport and Regional Services withdrawing a draft minor variation to the master plan lodged for approval on 13 June 2002. The letter stated that the ANEF 2050 had been endorsed by AsA and had replaced the ANEF 2020 for Canberra Airport.
• On 23 October 2002, CIA wrote to Mr Winnele of Village. This letter also stated, inter alia, that the ANEF 2050 had become the ANEF for Canberra Airport.
• In December 2002, Mr Byron of CIA made claims concerning flight paths to and from Canberra Airport at a residents’ meeting convened by the Jerrabomberra Residents Association.

23 Secondly, the FASC pleads that (par 15):

‘In July 2002, [CIA] circulated a letter to members of the public, members of the Queanbeyan City Council and to members of Parliament:

a)	stating, "AirServices Australia has now advised us that ICAO (the International Civil Aviation Organisation) will be approving procedures facilitating the use of GPS precision approach paths into airports within the next three years".
b)	stating, "We believe this would see landing aircraft fly over the rural properties of Tralee and Environa before joining the runway centre line at approximately 3.5 nautical miles from the airport" and
c)	attaching a map showing an offset approach flight path intercepting the runway centreline at a point one nautical mile out from the airport.’

24 These statements are said to be misleading and deceptive because AsA did not make the statement attributed to it; because it was and is not permissible for an approach path to intercept the runway only 3.5 nautical miles from Canberra Airport; and because the map was inaccurate.

25 Thirdly, the FASC pleads that (par 17A):

‘On 9 October 2002, [CIA], its servants or agents displayed overhead projections and circulated charts to people at a public meeting, which indicated that Brisbane, Melbourne and Adelaide flights landing at Canberra Airport from the south could join the runway centreline at 2.5 to 4 miles from Canberra Airport.’

26 The representations made at the public meeting are said to be false because such a procedure is not permitted and would be unsafe.

27 Fourthly, the FASC alleges that (par 18):

‘On or about 27 September 2002, [CIA], its servants or agents informed relevant members of staff of Queanbeyan Age newspaper or caused to be published in the Queanbeyan Age newspaper matter, the import of which was that the Federal Minister for Transport agreed that complaints from future residents of Tralee would mean a redistribution of aircraft flight paths and that there was a Federal bi-partisan support that Tralee should not be re-zoned.’

28 The statement in the newspaper article is said to be misleading or deceptive because the Minister had not made any such agreement and there had been no expression of ‘federal bi-partisan support’ for Tralee not being re-zoned.

THE PRIMARY JUDGE’S REASONING

29 Village argued before the primary Judge that the conduct engaged in by CIA was designed to protect and maintain CIA’s business. The conduct went beyond mere participation in public debate and was aimed at protecting ‘the ongoing operational integrity of the airport’ and ‘the long-term sustainability of the airport’. Insofar as the representations related to the ANEF 2050, they were made in trade or commerce because the ANEF was inextricably linked with CIA’s business.

30 The primary Judge rejected Village’s contention that a corporation making public representations does so ‘in trade or commerce’ if the representations are designed to advance, maintain or protect its commercial interests. This contention was largely based on the decision of Morling J in Glorie v WA Chip & Pulp Co Pty Ltd [1981] FCA 224; (1981) 39 ALR 67, which predated the High Court’s decision in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594. His Honour expressed agreement with the view of Gyles J in Robin Pty Ltd v Canberra International Airport Pty Ltd [1999] FCA 1019; (1999) 179 ALR 449, that Glorie was inconsistent with Concrete Constructions and should not be followed. The primary Judge thought that Village’s submission effectively subverted the reasoning of the joint judgment in Concrete Construction which required the impugned activity to be within the ‘central conception’ of trade or commerce. It was not enough to satisfy that test for the activity simply to protect or promote the corporation’s business interests.

31 The primary Judge also rejected Village’s submission that because an ANEF is inextricably linked with CIA’s business, even if CIA is not required by legislation to have one, statements about ANEF 2050 were made in trade or commerce. His Honour considered that a representation that the ANEF 2050 was in force could not amount to conduct in trade or commerce just because an ANEF was indispensable to Village’s business.

32 The primary Judge then considered the four species of conduct alleged against CIA. The representations made to the Minister about the ANEF 2050 being in force could not be said to be aspects or elements of activities or transactions which, of their nature, bore a trading or commercial character (as Concrete Constructions required). The representations were indistinguishable, for example, from statements made in a corporation’s tax return, which could not be said to be ‘in trade or commerce’.

33 In his Honour’s view, the publication of the ANEF 2050 on CIA’s website was an activity ‘divorced from any relevant actual or potential trading or commercial relationship or dealing’, and thus outside the scope of Concrete Constructions.

34 The primary Judge found that all remaining representations (including the two further instances in which the ANEF representations were made) should be regarded as communications made in the context of the debate and public manoeuvring about aircraft noise, airport operations and rezoning in which both CIA and Village were engaged. His Honour pointed out that CIA had made the representations in the context of a planning application to rezone Tralee, which CIA had consistently opposed in its own business interests. In seeking to continue or influence outcomes by representations made in public debate, or in the processes of informing the public, CIA was engaged in activities of a political, not of a commercial or trading character. This was so notwithstanding that CIA’s activities were informed by a degree of self-interest.

35 The primary Judge concluded as follows:

‘It is notable that the impugned representations were not made in circumstances in which it could properly be said that CIA was promoting, directly or indirectly, the services provided by the airport. It was, nonetheless, acting to protect its business. As I earlier indicated, action so taken is not for that reason alone in trade or commerce. It would be surprising if the legislature had intended the contrary to be the case in the Trade Practices Act. Corporations engage directly and indirectly in public and political debate on a myriad of matters that do or might impact actually or prospectively on their own interests. While all such debate will not be beyond the reach of s 52 of the Trade Practices Act: see e.g. Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1; much will be as it will not be directed at consumers (actual or potential), or will not be an incident of an activity which bears a trading or commercial character.

What Village is seeking to do in this proceeding is to have imposed on CIA "by a side wind": cf Concrete Constructions; a form of legislative control in circumstances in which s 52 has no role to play. One may desire conduct in public and political debate to be not misleading or deceptive. Section 52 is not designed to secure that state of affairs. In saying this I express no view on whether or not CIA’s conduct was misleading or deceptive.’

GROUNDS OF APPEAL

36 The grounds of appeal as set out in the Amended Notice of Appeal were as follows:

‘1. His Honour erred in holding in paragraph 57 of the judgment that the submission of the ANEF 2050 to the Minister and the subsequent letter to the Minister were not activities or transactions which were "in trade or commerce" as that phrase is understood in s 52 Trade Practices Act 1974 for the reason that the activity was part of its business activity which was sufficiently connected to and part of the supply of services by [CIA].

2. His Honour erred in holding at paragraph 59 that publishing ANEF 2050 on [CIA]’s website was not an activity in ‘trade or commerce’ in the relevant sense for the reason that the activity was a promotional activity which was sufficiently connected to or part of the supply of services of [CIA].

3. His Honour erred in holding that the other activities described in paragraph 60 of the judgment were not activities "in trade or commerce" in the relevant sense for the reason that aircraft noise, airport operations, flight paths and landing paths were directly part of the core business of [CIA] and the representations concerning them were made in trade or commerce of [CIA].

4. His Honour erred in finding that the present case was indistinguishable from Robin Pty Ltd v Canberra International Airport Pty Ltd [1999] FCA 1019; (1999) 179 ALR 449.

5. Alternatively, the decision in Robin is incorrect and should be overruled.’

THE SUBMISSIONS

37 Village submitted that the primary Judge had erred in holding that none of the matters alleged against CIA could be regarded as an activity ‘in trade or commerce’ for the purposes of s 52 of the TP Act. Mr Hodgekiss SC, who appeared with Ms Kumar for Village, contended that CIA’s conduct was in trade or commerce for four distinct reasons:

• First, publication by CIA of the ANEF 2050 on its website and its statements about the ANEF 2050 to the Minister and others amounted to ‘promotional activities’ on behalf of CIA. Such activities, which had the effect of advancing or protecting the commercial operations and long-term viability of Canberra Airport, were ‘in trade or commerce’. In particular, so Mr Hodgekiss argued, promotional activities of this kind were recognised by the High Court’s reasoning in Concrete Constructions as conduct in trade or commerce.
• Secondly, acts may be in trade or commerce if their effect, independently of the corporation’s purpose in undertaking them, is to maintain or protect a business. CIA’s actions had this effect since they would necessarily influence decision-makers and mould public opinion to oppose residential development to the south of Canberra Airport. This in turn would eliminate or reduce pressure by residents to impose curfews, limit the number of aircraft movements or restrict the selection of runways. Ultimately, the conduct would have the effect of protecting CIA’s business as the operator of Canberra Airport.
• Thirdly, acts undertaken by a corporation which are necessary to obtain a licence or authority to conduct or modify the corporation’s business constitute conduct ‘in trade or commerce’. While the preparation of the ANEF 2050 was not specifically required by the Airports Act, it had been prepared in order to ensure that CIA complied with its statutory obligations.
• Fourthly, the appellant contended that if it was not enough for CIA’s conduct merely to have the effect of promoting, maintaining or protecting its business, a finding should be made that’s its actions were intended to achieve that result. Conduct undertaken with such a purpose in mind was ‘in trade or commerce’.

38 Finally, Mr Hodgekiss submitted that his Honour erred in holding that the present case was indistinguishable from Robin v CIA. In the alternative, Mr Hodgekiss contended that Robin v CIA, insofar as it held that conduct to protect a party’s commercial interests was not necessarily ‘in trade or commerce’, was wrong and should not be followed.

39 CIA in essence, sought to uphold the reasoning of the primary Judge. Ms McCallum, who appeared with Ms Morgan for CIA, stressed that CIA’s public claims in respect of the ANEF 2050 occurred in the context of exchanges with AsA and the Minister responsible for the administration of the Airports Act 1996. They were communications pursuant to the respondent’s statutory obligations as the lessee and operator of Canberra Airport. Such conduct bore no ‘trading or commercial character’ as that expression is used in Concrete Constructions.

40 The remaining categories of conduct had occurred in the context of the CIA’s participation in the public debate concerning the rezoning of Tralee. According to Ms McCallum, the primary Judge correctly held that conduct in opposition to the rezoning was not directed at the trade or commerce of Canberra Airport, but with the rezoning of Village’s land.

REASONING

Concrete Constructions v Nelson

41 It was common ground that the principles governing construction of the expression ‘in trade or commerce’ in s 52 of the TP Act are those laid down by the joint judgment in Concrete Constructions. These principles have been restated and followed by this Court on many occasions. The difficulty is not so much in stating the principles but in applying them to the circumstances of particular cases.

42 In Concrete Constructions, a construction worker alleged that while employed by a construction company his foreman had instructed him to remove certain grates from entry points to air conditioning shafts. The foreman was alleged to have said, incorrectly, that each grate was secured by bolts. The worker sustained injuries when attempting to remove a grate. He claimed damages from his employer on the ground that the foreman’s incorrect statement constituted misleading or deceptive conduct in trade or commerce, in contravention of s 52 of the TP Act.

43 All members of the High Court held that the facts pleaded in the statement of claim did not give rise to a cause of action under s 52 of the TP Act because the employer’s conduct was not in trade or commerce. Brennan CJ, Toohey and McHugh JJ, in separate judgments, expressed the view that s 52 is concerned with protecting persons in their capacity as consumers. Since the foreman’s conduct did not affect the construction worker in his capacity as a consumer of goods and services, his action had to fail. The joint judgment (Mason CJ, Deane, Dawson and Gaudron JJ), by contrast, held (at 601-602) that s 52 of the TP Act, on its proper interpretation, prohibits a corporation from engaging in misleading or deceptive conduct ‘in trade or commerce’, regardless of whether the conduct misleads or deceives a person in the capacity of consumer.

44 The joint judgment addressed the meaning of the expression ‘in trade or commerce’ in s 52. The following propositions emerge from the judgment (cf the judgment of Dowsett J, dissenting, in Hearn v O’Rourke [2003] FCAFC 78; (2003) 129 FCR 64, at 72-73 [28]):

(i) The phrase ‘in trade or commerce’ in s 52 has a restrictive operation (at 602).

(ii) Two competing constructions of the phrase are available. The broader view would encompass (at 602-603):

‘conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business.’

This would extend, for example, to a case where one employee gives inaccurate information to another in the course of carrying on the building activities of a commercial builder. The narrower view is that the phrase ‘in trade or commerce’ refers only (at 603):

‘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...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.’

The narrower view is the correct construction of s 52.
(iii) Accordingly, what s 52 is concerned with is (at 604):

‘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 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.’

(iv) In some areas the dividing line between what is and what is not conduct in trade or commerce may be less clear and (at 604):

‘may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character. The point can be illustrated by reference to the examples mentioned above. The driving of a truck for the delivery of goods to a consumer and the construction of a building for another pursuant to a building contract are, no doubt, trad or commerce in so far as the relationship between supplier and actual or potential customer or between builder and building owner is concerned. That being so, to drive a truck with a competitor’s name upon it in order to mislead the customer or to conceal a defect in a building for the purpose of deceiving the building owner may well constitute misleading or deceptive conduct "in trade or commerce" for the purposes of s 52. On the other hand, the mere driving of a truck or construction of a building is not, without more, trade or commerce and to engage in conduct in the course of those activities which is divorced from any relevant actual or potential trading or commercial relationship or dealing will not, of itself, constitute conduct "in trade or commerce" for the purposes of that section. That being so, the giving of a misleading handsignal by the driver of one of its trucks is not, in the relevant sense, conduct by a corporation "in trade or commerce". Nor, without more, is a misleading statement by one of a building company’s own employees to another employee in the course of their ordinary activities. The position might well be different if the misleading statement was made in the course of, or the purposes of, some trading or commercial dealing between the corporation and the particular employee.’

45 Since the alleged misleading or deceptive conduct in Concrete Constructions itself consisted of an internal communication between employees in the course of their ordinary activities in constructing a building, the conduct was not in trade or commerce (at 605). Thus the employer had not contravened s 52 of the TP Act.

46 In applying the principles laid down by the High Court it is helpful to bear in mind the context in which Concrete Constructions was decided. As Wilcox J observed in Barto v GPR Management Services Pty Ltd [1991] FCA 659; (1991) 33 FCR 389, at 393:

‘It is easy to understand the policy reasons underlying Concrete Constructions. A contrary result would have led to s 52 being used as a vehicle for the recovery of personal injury damages in a large number of industrial and motor accident cases; even cases where the respondent was not negligent, but only if it happened to be a "corporation" as defined in s 4 of the Trade Practices Act. And this development would have occurred at the very time that some States were legislating to exclude personal injury damages claims in industrial and/or motor accident cases.’

47 The context assists in understanding the import of remarks in the joint judgment, which sometimes appear to be treated as though they are contained in a statute rather than a judgment construing a statute. For example, their Honours observed (at 604) that s 52 was

‘not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities’.

Clearly enough, this observation was directed at the construction worker’s attempt to use s 52 of the TP Act to circumvent restrictions imposed by State law on the recovery of damages in personal injury cases. It should not be regarded as an independent principle of construction intended to narrow the scope of s 52 beyond what follows from the construction adopted by the joint judgment.

48 The joint judgment in Concrete Constructions acknowledged that the ‘dividing line’ between conduct that is or is not in trade or commerce, according to the narrower construction of s 52 of the TP Act, may be difficult to draw. However, once the narrower construction of s 52 was adopted, the facts of Concrete Construction clearly fell outside s 52. Other fact situations will be much closer to the line.

49 The difficulty that can arise in applying the principles in Concrete Constructions is illustrated by the different views expressed in this Court as to whether representations made by a corporation to an employee in connection with the employee’s terms of employment constitute conduct in trade or commerce. In Barto v GPR Management, in the context of a strike out application, Wilcox J held (at 395) negotiations with a prospective or present employee in respect of that person’s employment contact is conduct capable of falling within s 52 of the TP Act. In Martin v Tasmania Development and Resources [1999] FCA 593; (1999) 163 ALR 79, at 96-98 [70]-[77], Heerey J disagreed, holding that a communication to an employee asserting that termination of his employment was required on operational grounds was not a dealing of a trading or commercial nature. (This issue was not addressed on appeal: Tasmania Development and Resources v Martin [2000] FCA 414.) In Stoelwinder v Southern Health Care Network [2000] FCA 444; (2000) 177 ALR 501, Finkelstein J preferred Barto to Martin. In Hearn v O’Rourke [2002] FCA 1179; (2002) 193 ALR 264, a case involving a different fact situation, Kiefel J at first instance expressed a preference for the reasoning in Martin. The Full Court allowed an appeal (Finn and Jacobson JJ; Dowsett J dissenting), but did not find it necessary to resolve the conflict: Hearn v O’Rourke [2003] FCAFC 78; (2003) 129 FCR 64.

Applying Concrete Constructions v Nelson

50 In the present case it is difficult to see how the representations made by CIA (assuming the truth of the pleaded allegations) can be said to have been made in the course of a trading or commercial relationship or of activities that bear a trading or commercial character as required by Concrete Constructions.

51 Some of the representations were made by CIA to the Minister in the course of requesting and then withdrawing a request for Ministerial approval of a draft variation to the Year 2020 Master Plan for Canberra Airport. The Minister’s approval was required pursuant to s 84 of the Airports Act. The relationship between the Minister and CIA was not of a trading or commercial character; if anything, it was a relationship between a regulator and a regulated industry or business. Nor were CIA’s representations made as part of the process designed to secure approval to a commercial transaction or dealing. Rather, they were made in the course of requesting (and withdrawing the request for) a variation to the Year 2020 Master Plan, by disclosing that the ANEF 2020 had been replaced by the ANEF 2050.

52 It is true that this variation, if approved by the Minister, might have contributed to CIA being able to prolong and perhaps expand its operations at Canberra Airport (by minimising the likelihood that planning approval would be granted for a residential development under the flight path for the Airport). But the fact that the representations were made as part of an application or campaign designed to prolong and expand CIA’s operations at Canberra Airport is not enough, of itself, to justify concluding that the representations were made in the course of a commercial transaction or dealing. It is plainly essential to maintaining the operations of a construction company that a foreman give instructions to a worker to carry out building activities. But, as Concrete Constructions decides, the fact that the foreman’s instructions are in the interests of a corporation, or even essential to its operations, does not necessarily mean that the transaction or dealing is in trade or commerce. The conduct must have occurred in the course of a trading or commercial relationship or otherwise to bear a trading or commercial character.

53 The remaining representations relied on by Village were made by CIA to members of the public and to elected councillors and Parliamentarians as part of a campaign to resist the application to rezone Tralee to facilitate residential development. There was no relevant trading or commercial relationship between CIA and the persons to whom the representations were made (although doubtless some would have occasion to use Canberra Airport from time to time). The representations could not be described as promotional activities designed to persuade consumers to use the services offered at Canberra Airport. Nor were they made as part of a process designed to secure approval to a commercial transaction or dealing, such as the sale of a component of CIA’s business (cf Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169).

54 The primary Judge drew a distinction between activities of a political nature and those of a commercial or trading character. He considered that CIA’s campaign to revisit the rezoning application amounted to a political activity and therefore was not conduct in trade or commerce. The two categories are not, however, necessarily mutually exclusive. There may be activities which are ‘political’ in the sense that they are designed to influence public opinion or achieving a particular regulatory outcome, but which might nonetheless form part of transactions bearing a commercial or trading character (as where a public relations company makes representations to a Minister on behalf of a client). The ultimate question is whether the impugned conduct has the requisite commercial or trading character.

55 Village’s submissions, in their various formulations, advanced tests for determining whether conduct is in trade or commerce that go beyond the principles endorsed by the High Court in Concrete Constructions. Village’s submission that CIA’s conduct was in trade or commerce because it amounted to ‘promotional activities’, seized on observations in the joint judgment in Concrete Constructions that certain promotional activities bear a trading or commercial character. But the joint judgment said (at 604) only that such activities include

‘promotional activities in relation to, or for the purpose of, the supply of goods or services to actual or potential consumers’.

Conduct by a corporation which does not otherwise bear a trading or commercial character is not brought within s 52 simply because it may be thought in some way to benefit the corporation’s business or because it can be labelled as ‘promotional’. Village’s submission is at odds with the ratio decidendi in Concrete Constructions, which rejects the broader construction of s 52 of the TP Act in favour of the narrower approach.

56 Mr Hodgekiss cited Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1 in support of his first submission. But in that case the advertisement, which asserted that there was little evidence that passive smoking was unsafe, was directed, inter alia, to consumers of cigarettes and, as Sheppard J inferred (at 16):

‘the most likely reason for the publication of the advertisement was to promote or maintain sales of cigarettes for commercial reasons, ie gain.’

Similarly, Foster J concluded (at 25) that the advertisement was ‘promotional material designed to advance the cause of cigarette smoking and to assist in the sale of cigarettes’. See, too, at 44, per Hill J. The facts in Tobacco Institute were quite different to those of the present case.

57 Village also relied on the decision of Morling J in Glorie v Chip & Pulp Co [1981] FCA 224; (1981) 39 ALR 67. That case involved a film produced by a trade association, including woodchippers. The film was a ‘public-relations exercise’ designed to answer criticism of the forestry industry and also preserve the supply of timber from the South West Forest for woodchipping operations. Glorie was decided before Concrete Constructions. As we have noted, the primary Judge in the present case agreed with Gyles J in Robin v CIA that Glorie would now be decided differently.

58 It is not necessary to determine whether Glorie would be decided the same way today. In Robin v CIA, the facts of which were similar to the present case, Gyles J pointed out that Glorie was distinguishable because it arguably involved conduct promoting the sale of timber products. In any event, Glorie, although it has been referred to without apparent disapproval (see, for example, Plimer v Roberts (1997) 80 FCR 303, per Lindgren J), has not been specifically approved by a Full Court or the High Court.

59 Each of the three alternative formulations by Mr Hodgekiss suffers from the same defect as the first. The fact that conduct has the purpose or effect (or both) of maintaining or protecting a business is not, of itself, enough to ensure that the conduct is in trade or commerce. Similarly, acts necessary to obtain a licence or authority to conduct the corporation’s business may be in trade or commerce, although we think this would be unusual. The question is whether the conduct falls within the central conception of trade or commerce as explained in Concrete Constructions. In the present case the conduct alleged against CIA did not.

CONCLUSION

60 No error has been shown in the primary Judge’s conclusion that the conduct alleged against CIA was not in trade or commerce. The appeal must be dismissed, with costs.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Sackville & Conti JJ.

Associate:


Dated: 31 August 2004

Counsel for the Appellant:	CC Hodgekiss SC with M Kumar
Solicitor for the Appellant:	JS O’Connor Harris & Co
Counsel for the Respondent:	L McCallum with K Morgan
Solicitor for the Respondent:	Mallesons Stephen Jacques
Date of Hearing:	3 August 2004
Date of Judgment:	31 August 2004