Concrete Constructions v Nelson
Concrete Constructions (NSW) Pty Ltd v Nelson
[1990] HCA 17; (1990) 169 CLR 594
Case details ➤
Court
High Court of Australia
Citations
[1990] HCA 17
(1990) 169 CLR 594
Judges
Mason CJ
Brennan
Deane
Dawson
Toohey
Gaudron
McHugh
Appeal from
Federal Court of Australia
Overview
The case involved consideration of the scope of the ‘in trade or commerce’ element for misleading and deceptive conduct under s 52 of the Trade Practices Act (later s 18 of the Australian Consumer Law)
Catchwords
Trade Practices - Consumer protection - Misleading or deceptive conduct - In trade or commerce - False statement by employer to employee as to condition of work site in course of employment - Resultant injuries to employee - Whether conduct "in" trade or commerce - Trade Practices Act 1974 (Cth), s. 52.
Facts
Nelson worked for Concrete Constructions. His foreman on a building site made false representations about how air-conditioning shafts were affixed on the building site. Nelson was injured when he fell down an air conditioning shaft which was not affixed as described by the foreman.
One of Nelson’s claims was that Concrete Constructions, through its foreman, engaged in misleading or deceptive conduct in trade or commerce. The High Court was called on to determine whether the conduct could be said to have occurred in trade or commerce.
High Court
Mason CJ, Deane, Dawson and Gaudron JJ
Their Honours noted that ‘trade or commerce’ was qualified by the requirement that the conduct occur in trade or commerce. There were two key ways in which in trade or commerce could be construed:
'as encompassing 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' (including, for example, the conduct of employees on work sites)
'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'.
Although the language of the provision could lend itself to either interpretation, read in context (by reference to the part of the Act in which it was located and by the long title of the Act ('An Act relating to certain Trade Practices') the second interpretation was preferable.
Their Honours noted that the section was
'… concerned with [the] conduct of a corporation towards persons, be they consumers or not, with whom it ... has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.’
In the context of this case:
‘the mere ... construction of a building is not, without more, in 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'.'
The foreman’s conduct constituted ‘internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building’ and that was not relevantly in trade or commerce for purposes of the prohibition of misleading or deceptive conduct.
Justice Brennan
Considered section 52 was limited to conduct that misled person(s) in their capacity as consumers:
‘… I would construe s.52 in the light of the heading to Pt V and hold that the conduct it proscribes is limited to conduct which misleads or deceives or is likely to mislead or deceive a person in his capacity as a consumer.’
Justice Brennan disagreed with the majority that the narrower interpretation of ‘in trade or commerce’ should apply:
‘… Although I agree with the majority that the phrase "in trade or commerce" qualifies the operation of s.52, I am respectfully unable to agree that that phrase restricts the operation of s.52 to conduct which is in itself of a trading or commercial character. The question whether conduct is engaged in "in trade or commerce" cannot be answered by reference to the conduct divorced from the circumstances in which it is engaged in; it can be answered only by reference to the surrounding circumstances. Those are the circumstances "in" which the conduct is engaged in. There is no scalpel of principle which can dissect the conduct out of the activity or transaction "in" which it is embedded. Therefore, in my opinion, if misleading or deceptive conduct occurs in the course of carrying on an activity or carrying out a transaction of a trading or commercial character, the test imported by the phrase "in trade or commerce" is satisfied.’
In this case, the conduct occurred in ‘trade or commerce’, but did not mislead or deceive him in his capacity as a consumer.
Justice Toohey
Justice Toohey observed that the words ‘trade or commerce’ were of wide import and that s 52 was aimed at conduct ‘in which a corporation engages when that conduct takes place in a situation which fairly answers the description ‘in trade or commerce’. This is focused on ‘commercial activity, the providing of goods and services for reward’. The word ‘in’ limited the scope of the provision:
‘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’.
Justice McHugh
Justice McHugh considered that the provision was ‘limited to the protection of consumers and not to the protection of members of the community in other capacities’. This was based on the context of the provision in a part labelled ‘Consumer Protection’. Insofar as consumers are concerned his Honour considered the words ‘in trade or commerce’ should not be limited by reference to the trading or commercial character of the conduct, as this would reduce protection for consumers.
‘Once the heading of Pt V is taken into account in determining the scope of s.52, no reason exists for applying the section to conduct beyond that which affects or is apt to affect members of the public in their capacities as consumers or potential consumers. …
I would hold that s.52 is confined to conduct which affects or is apt to affect members of the public in their capacity as consumers, using that term in a broad and general sense. …
It follows that, since the worker's statement of claim does not allege any conduct which affected him in his capacity as a consumer, it discloses no cause of action. …