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[1990] HCA 17
High Court of Australia
1989-03-15
McHugh JJ, Gaudron JJ, Einfeld J, Lee J
Original judgment source is linked above.
High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17
ORDER Appeal allowed with costs. Set aside the orders of the Federal Court made on 15 March 1989 and in lieu thereof order that the preliminary question be answered: No. Order that the respondent pay the appellant's costs of the notice of motion.
The appellant ("the company") is a corporation which was, in July 1987, constructing a building in Grosvenor Square, Sydney. The respondent ("the worker") was one of the company's employees on the site. He sustained injuries when he fell to the bottom of an air-conditioning shaft while attempting to remove a grate positioned at the entry point of the shaft. He alleges that his injuries were caused by the conduct of the company's foreman who wrongly informed him that the grates at the entry points of the air-conditioning shafts were fixed by three bolts on each side and that it was safe to remove them in the manner explained by the foreman. On the worker's case, he fell down the shaft when "one of the grates gave way by reason of the fact that it was not affixed by bolts or otherwise".
The worker instituted proceedings for damages against the company in the Federal Court. The statement of claim contained the above allegations about the cause of the worker's injury and, attributing the conduct of its foreman to the company, asserted that those injuries were occasioned to the worker "by reason of conduct of the [Company] which was misleading or deceptive or liable to mislead or deceive". By consent, an order was made pursuant to the Federal Court Rules (O. 29, r. 2(a)) that the following question be decided before trial: "Do the facts pleaded and particularized in the Statement of Claim give rise to a cause of action under the Trade Practices Act 1974?" That preliminary question was argued before Einfeld J. in the Federal Court who answered it in the affirmative. The present appeal is brought from his Honour's judgment that the question be so answered. It is common ground that the issue which the question raises is one of statutory construction. Briefly stated, it is whether, accepting all of the worker's allegations about the cause of his injuries and that the misleading or deceptive conduct of its foreman is to be attributed to the company, the conduct constituted a contravention of the provisions of s. 52 of the Trade Practices Act 1974 Cth ("the Act"). If it did, it is not disputed that the worker's action for damages lies, pursuant to s. 82 of the Act, in the Federal Court.
Section 52 is in Div. 1 of Pt V of the Act. That Part is headed "Consumer Protection". Division 1 is headed "Unfair Practices". Section 52 reads:
(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of sub-section (1).
It is common ground that the company is a "corporation" for the purposes of the section. The company's argument that the case does not fall within s. 52 is essentially based upon the combined effect of the heading "Consumer Protection" and the section's express confinement of the scope of its provisions to conduct "in trade or commerce".
There have been numerous cases in which consideration has been given to the scope of s. 52 of the Act. They include decisions of this Court (Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Ltd. [1] ; Reg. v. Federal Court of Australia; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. [2] ; and Parkdale Custom Built Furniture Pty. Ltd. v. Puxu Pty. Ltd. [3] ), decisions of the Federal Court and some decisions of State Supreme Courts. Reference to many of them was made by Lee J. of the Federal Court in the course of a helpful discussion of authority in Merman Pty. Ltd. v. Cockburn Cement Ltd. [4] . To the cases there mentioned, we would add a reference to the decision of the New South Wales Court of Appeal in Wright v. T.N.T. Management Pty. Ltd. [5] . The actual decision in none of those cases is, however, either directly applicable to the circumstances of the present case or decisive of the question whether s. 52's prohibition of misleading or deceptive conduct by a corporation in trade or commerce extends to the internal affairs of the corporation or to purely internal communications between employees of a corporation in the course of their employment. That being so, it is unnecessary that we refer to the decided cases in any detail. It suffices, for present purposes, to say that we regard it as settled by earlier decisions that an action to restrain a contravention of s. 52 can, in appropriate circumstances, be maintained by a person who is not a consumer (see Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Ltd. [6] ; Reg. v. Federal Court of Australia [7] ; Parkdale [8] ) and that we consider that, while the cases make plain that consumer protection lies at the heart of the legislative purpose to be discerned in s. 52, the precise boundaries of the territory within which that section operates remain undetermined (cf. Hanimex Pty. Ltd. v. Kodak Pty. Ltd. [9] ; Industrial Equity Ltd. v. North Broken Hill Holdings Ltd. [10] ).
The general heading "Consumer Protection" at the commencement of Pt V is part of the Act (Acts Interpretation Act 1901 Cth, s. 13). It constitutes part of the context within which the substantive provisions of Pt V must be construed and should be taken into consideration in determining the meaning of those provisions in case of ambiguity. The heading does not, however, control the permissible scope of the substantive provisions of Pt V and cannot properly be used to impose an unnaturally constricted meaning upon the words of those substantive provisions (see Hornsby Building Information Centre Pty. Ltd. [11] ; Parkdale [12] ). As a matter of language, s. 52 prohibits a corporation from engaging in misleading or deceptive conduct "in trade or commerce" regardless of whether the conduct is misleading to, or deceptive of, a person in the capacity of a consumer. In these circumstances, it is not permissible to give to the heading of Pt V the effect of confining the general words of s. 52 to cases involving the protection of consumers alone. So to constrict the provisions of s. 52 would be to convert a general prohibition of misleading or deceptive conduct by a corporation, be it consumer or supplier, in trade or commerce, into a discriminatory requirement that a corporate supplier of goods or services should observe standards in its dealings with a corporate consumer which the consumer itself was left free to disregard. That being so, the general words of s. 52 must be construed as applying even-handedly to corporations involved in a transaction or dealing with one another "in trade or commerce". So to say is not, however, to deny the significance of the heading "Consumer Protection" for the purposes of the present case. In particular, as will appear, that heading is of importance in determining the effect of the words "in trade or commerce" in s. 52 (see Hornsby Building Information Centre Pty. Ltd. [13] ).
It is well established that the words "trade" and "commerce", when used in the context of s. 51(i) of the Constitution, are not terms of art but are terms of common knowledge of the widest import. The same may be said of those words as used in s. 52(1) of the Act. Indeed, in the light of the provisions of s. 6(2) of the Act which give an extended operation to s. 52 and which clearly use the words "trade" and "commerce" in the sense which the words bear in s. 51(i) of the Constitution, it would be difficult to maintain that those words were used in s. 52 with some different meaning. The real problem involved in the construction of s. 52 of the Act does not, however, spring from the use of the words "trade or commerce". It arises from the requirement that the conduct to which the section refers be " in " trade or commerce. Plainly enough, what is encompassed in the plenary grant of legislative power "with respect to Trade and commerce" in s. 51(i) of the Constitution is not of assistance on the question of the effect of the word "in" as part of the requirement that the conduct proscribed by s. 52(1) of the Act be "in trade or commerce".
The phrase "in trade or commerce" in s. 52 has a restrictive operation. It qualifies the prohibition against engaging in conduct of the specified kind. As a matter of language, a prohibition against engaging in conduct "in trade or commerce" can 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. If the words "in trade or commerce" in s. 52 are construed in that sense, the provisions of the section would extend, for example, to a case where the misleading or deceptive conduct was a failure by a driver to give the correct handsignal when driving a truck in the course of a corporation's haulage business. It would also extend to a case, such as the present, where the alleged misleading or deceptive conduct consisted of the giving of inaccurate information by one employee to another in the course of carrying on the building activities of a commercial builder. 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 [14] , 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.
As a matter of mere language, the arguments favouring and militating against these alternative constructions of s. 52 are fairly evenly balanced. The scope of the prohibition imposed by s. 52 is, however, governed not only by "the terms in which it is created" but by "the context in which it is found" (see Yorke v. Lucas [15] ; and, generally, Bank of N.S.W. v. The Commonwealth [16] ). In that regard, it is of particular significance that the words "trade" and "commerce" have "about them a chameleon-like hue, readily adapting themselves to their surroundings" (O'Brien v. Smolonogov [17] , quoting Federal Commissioner of Taxation v. Whitfords Beach Pty. Ltd. [18] ). Section 52(2) precludes limiting the scope of s. 52(1) by implication drawn from the contents of other provisions of Pt V. Nonetheless, when the section is read in the context provided by other features of the Act, which is "An Act relating to certain Trade Practices", the narrower (i.e. the second) of the alternative constructions of the requirement "in trade or commerce" is the preferable one. Indeed, in the context of Pt V of the Act with its heading "Consumer Protection", it is plain that s. 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section 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. 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. 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, trade 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 for the purposes of, some trading or commercial dealing between the corporation and the particular employee.
The alleged misleading or deceptive conduct of the Company's foreman in the present case consisted of an internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building. It follows from what has been said above that that conduct was not, for relevant purposes, conduct "in trade or commerce" and would not, if established, constitute a contravention of s. 52 of the Act. That being so, the appeal must be allowed and the preliminary question which was answered by the learned primary judge in the affirmative must be answered in the negative.
Section 52 is the leading provision in Pt V of the Trade Practices Act 1974 Cth. Part V is headed "Consumer Protection"; Div. 1 is headed "Unfair Practices". For the reasons stated by McHugh J., 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. That is not to say that s. 52 protects only the interests of consumers. Section 52 is enforceable by civil proceedings, pursuant to provisions in Pt VI: ss. 80, 82, 86. As persons other than consumers - for example, trade competitors - may protect their own interests by taking proceedings, the joint operation of s. 52 and the enforcement provisions in Pt VI confers protective rights on persons other than consumers. That consideration, however, does not affect the construction of s. 52 or alter the character of the conduct it proscribes. As Mason J. said in Reg. v. Federal Court of Australia; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. [19] :
There is, in my view, no incongruity in making the provisions of Pt V of the Act, notwithstanding they have been enacted for the protection of consumers, enforceable at the instance of a competitor who is not a consumer. The enforcement, at least by injunction, by such a person of the Pt V provisions enhances the protection which they give to consumers. Indeed, it constitutes the most effective sanction for that protection because the consumer who is misled or deceived in consequence of an unfair practice is unlikely to be a suitor for an injunction against the contravening corporation; he is more likely to seek damages. Non-consumers acquire (by ss. 80, 82 and 86) a right to take proceedings to protect their own interests, but the conduct on which the proceedings are founded must answer the s. 52 description, that is to say, conduct which misleads or deceives or is likely to mislead or deceive a person in his capacity as a consumer. 1. (1978) 142 C.L.R. 113, at p. 128.
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.
The activity in which the defendant corporation was engaging in this case - building construction for reward - was its business and was clearly a trading activity. It is therefore unnecessary to consider the different meanings which may be attributed to the terms "trade" and "commerce" in differing contexts. The conduct on which the plaintiff relies was engaged in in the course of and as an integral part of the defendant corporation's trade.
There is only one argument of substance which might be thought to justify a reading down of the general language of s. 52 by restricting the meaning of the phrase "in trade or commerce", namely, that s. 52 can hardly have been intended to apply across the broad canvas of activities which reach out to the periphery of trade or commerce. An example was offered of a truck driver who, driving in the course of his employment by a corporation in its carrying business, gives a misleading traffic signal. Would the misleading signal be a contravention of s. 52? That argument would have some cogency if, but only if, s. 52 were construed without reference to the heading "Consumer Protection". Once it is understood that the section prohibits only that conduct which misleads or deceives or is likely to mislead or deceive a person in his capacity as a consumer, there is no warrant for reading down s. 52 by imposing some artificial restriction on the meaning of the phrase "in trade or commerce". True it is that that construction does not impose on corporations which are engaged in trade or commerce as consumers an obligation not to mislead or deceive but, with great respect for the contrary view, it is unlikely that the Act intended to impose that obligation on corporate consumers. If the Act imposes an obligation on corporate consumers not to mislead or deceive, it imposes the same obligation on consumers who are natural persons and who mislead or deceive when they are using the postal services or the telephone: s. 6(3). It is unlikely that a Part which is headed "Consumer Protection" contains what is, in combination with s. 6(3), a fertile source of consumer liability.
To give "in trade or commerce" its ordinary meaning does not render the qualification otiose. No doubt the greater proportion of conduct engaged in by foreign corporations, trading or financial corporations formed within the limits of Australia or the holding companies of such corporations is likely to be in trade or commerce, so that the qualification in the case of those corporations is of little practical importance. But the definition of "corporation" includes any body corporate incorporated in a Territory, whether it ordinarily engages in trade or commerce or not, and its holding company (s. 4(1)), and there is significant work for the qualification to do in the case of non-trading, non-commercial Territorial corporations. Section 52 will apply only if such corporations engage in activity falling within the general meaning of "trade or commerce".
As I construe s. 52 to apply only to conduct which (relevantly to the present case) misleads a person in his capacity as a consumer, and as the conduct complained of did not affect Mr. Nelson in his capacity as a consumer, nor did it affect any other person in that capacity, the case as pleaded is not supportable by s. 52. The appeal must be allowed.
The language of s. 52 of the Trade Practices Act 1974 Cth ("the Act") is deceptively simple. It reads:
(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of sub-section (1).
However, a glance at the reports of Australian trade practices cases soon discloses the volume of litigation spawned by this provision. Reference in summary form to many of the decisions may be found in Miller, Annotated Trade Practices Act, 10th ed. (1989), pp. 135-162.
The present appeal arises from a novel use of s. 52(1). The respondent was employed by the appellant company in the construction of a building in Grosvenor Square, Sydney. The respondent's work necessitated the removal of grates positioned at the entry points of air-conditioning shafts. The respondent was instructed how to do the work by the appellant's foreman who told him that each of the grates was secured on either side by three bolts. One of the grates was not so secured and it gave way, causing the respondent to fall into the shaft and sustain serious injuries. The respondent brought action against the appellant, claiming damages pursuant to s. 82 of the Act.
These are not facts as found by a court. They are the facts pleaded in a statement of claim. The matter came before the Federal Court of Australia on motion by the appellant to have determined as a separate question whether "the facts pleaded and particularized in the Statement of Claim give rise to a cause of action under the Trade Practices Act 1974". That question was determined separately and favourably to the respondent. From that decision the appellant appeals to this Court.
About certain matters there is no dispute. The appellant is a corporation. On the facts pleaded, there was conduct by the appellant in the form of statements made by its foreman to the respondent and it was conduct that was misleading or likely to mislead him. The issues now before the Court are the extent to which the language of s. 52(1) is controlled by or gains meaning from the context in which the sub-section appears, namely in Pt V of the Act, and whether the conduct which was misleading or likely to mislead was in trade or commerce within the meaning of the sub-section.
As Fox J. pointed out in Brown v. Jam Factory Pty. Ltd. [20] , s. 52(1) "does not purport to create liability at all; rather does it establish a norm of conduct, failure to observe which has consequences provided for elsewhere in the same statute, or under general law". Section 82(1) of the Act is expressed in the widest terms:
A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention. A contravention of a provision of Pt IV or V may lead to the grant of an injunction on the application of "the Minister, the Commission or any other person": s. 80(1). With certain exceptions, contravention of a provision of Pt V also constitutes an offence punishable on conviction and attracts a monetary penalty. Section 52 is one of those exceptions: s. 79. This is perhaps not surprising; the nature of the section does not lend itself particularly to criminal sanctions. 1. (1981) 53 F.L.R. 340, at p. 348; 35 A.L.R. 79, at p. 86.
Section 52(1) does not exist in a vacuum. It is to be found in Pt V of the Act, headed Consumer Protection. The section is in Div. 1 of Pt V, headed Unfair Practices. By reason of s. 13(1) of the Acts Interpretation Act 1901 Cth, the headings of parts, divisions and subdivisions of an Act "shall be deemed to be part of the Act". It is of some interest to note the other divisions of Pt V. They are Div. 1A - Product Safety and Product Information; Div. 2 - Conditions and Warranties in Consumer Transactions; Div. 2A - Actions against Manufacturers and Importers of Goods; Div. 3 - Miscellaneous.
It is well settled that, notwithstanding the heading to Pt V, a person is not precluded from asserting a breach of s. 52(1) because that person does not answer the description of consumer: Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Ltd. [21] ; Reg. v. Federal Court of Australia; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. [22] ; Parkdale Custom Built Furniture Pty. Ltd. v. Puxu Pty. Ltd. [23] . But the extent to which the section is concerned with consumer protection and with conduct directed at consumers is still occasion for debate.
The Act contains no definition of "consumer". Section 4B provides that, unless the contrary intention appears, a person shall be taken to have acquired particular goods or particular services as a consumer only where the price does not exceed the prescribed amount, or otherwise in the circumstances there mentioned. While the section provides no definition of "consumer", it is relevant as suggesting that a consumer will ordinarily be a person who acquires goods or services. This of itself has some significance, if only to make it clear that "consumer" is not confined to one who acquires goods: see Stephen J. in Hornsby [24] . This wider notion is carried into certain sections within Div. 1 - ss. 52A, 53, 53C and 54 in particular - which speak expressly of various forms of conduct "in connexion with the supply or possible supply of goods or services". These words do not appear in s. 52. In passing, it should be noted that the expressions "goods" and "services" are defined in s. 4(1), the latter in particularly wide terms.
To interpret the provisions of Div. 1 in the light of the quasi-definitions [in s. 4B], applied, through this heading, to the entire Part, will be to distort in numerous respects the otherwise clearly apparent legislative pattern manifest in Pt V. It has been said also that the general words of s. 52(1), the generality of which is emphasized by s. 52(2), are not to be read down by reference to the heading of Pt V: Stephen J. in Hornsby [25] ; Mason J. in Parkdale [26] . 1. (1978) 140 C.L.R. 216, at p. 226. 2. (1978) 140 C.L.R., at p. 225. 3. (1982) 149 C.L.R., at p. 202.
Nevertheless, there are dicta which set s. 52(1) within a framework of consumer protection. In Hornsby [27] , Barwick C.J. said: "Section 52 is concerned with conduct which is deceptive of members of the public in their capacity as consumers of goods or services." And Stephen J., contrasting s. 52 with s. 5 of the United States Federal Trade Commission Act (15 U.S.C. 45) said [28] : "Section 52 of our Act is on the contrary exclusively concerned with consumer protection." Jacobs J. agreed generally with Stephen J. and Aickin J. agreed generally with Barwick C.J. On the other hand, Murphy J. said [29] that s. 52 was "not limited or qualified" by the heading of Pt V. In Parkdale [30] , Gibbs C.J. spoke of s. 52 as "intended for the protection of consumers". Mason J. commented [26] : "Although s. 52(1) is intended to protect members of the public in their capacity as consumers of goods and services " and [31] , that the conduct complained of "must mislead or deceive or be likely to mislead or deceive members of the public in their capacity as consumers". The notion of consumer protection is implied, rather than expressly stated, by Mason J. in Reg. v. Credit Tribunal; Ex parte General Motors Acceptance Corporation [32] .
To a large extent the various observations set out in the preceding paragraph were made to stress, in the circumstances of the particular case before the Court, that s. 52 is not directly concerned with unfair methods of competition in commerce or with the protection of the reputation or goodwill of competitors. At the same time they were made so as to put beyond doubt that any remedy deriving from the operation of s. 52 is not confined to consumers but is available as well to competitors in business. In Reg. v. Credit Tribunal [32] , referring to the context in which s. 52(1) appears, Mason J. said that "the prohibition contained in the sub-section emerges as an important general prohibition against a corporation in the course of trade or commerce engaged in a form of conduct, a trade practice, which is unfair".
The justification for bringing within the scope of s. 52(1) actions which in character differ little from passing off actions is explained by Stephen J. in Hornsby [33] in terms of "the very direct relationship which necessarily exists between the deception of consumers in the course of trade and the injury caused by the unfair practices of a trade rival" and by Mason J. in Parkdale [34] in these words: "The remedy to prevent deception of the public often has the incidental effect of protecting a competing trader's goodwill which would be also injured by that deception."
There can be no doubt that Pt V of the Act is intended to protect consumers against unfair trading practices. The very structure of the Part makes that clear, as do its contents. Part V achieves this end by proscribing in various ways, and most widely in s. 52(1), conduct which if left unchecked may constitute an unfair trading practice. I take it that this is what Stephen J. had in mind when in Hornsby [35] he said that the heading in Pt V, Consumer Protection, "does colour the meaning to be given to the sort of conduct against which the section is aimed." The breadth of s. 52(1), when contrasted with ss. 52A, 53, 53C and 54, has already been noted, as has the very clear direction given by s. 52(2). And, as already stated, a person who suffers loss or damage by the conduct of another which answers the language of s. 52(1) may invoke s. 82(1) even though that person may not be a consumer in respect of the transaction in question. But that conduct will not answer the language of s. 52(1) unless it is conduct of a character which misleads or deceives or is likely to mislead or deceive persons in their capacity as consumers of goods or services.
Despite the emphasis placed in some of the judgments on deception of members of the public, it does not follow that s. 52 is confined to statements directed to the public or some identifiable section of it: see Bevanere Pty. Ltd. v. Lubidineuse [36] . Certainly, Yorke v. Lucas [37] proceeded on the assumption, which was not challenged at any stage of the proceedings, that a statement made by a land agent to the potential purchaser of a business concerning the turnover of that business fell within s. 52. And there have been a number of decisions of the Federal Court in which an oral or written representation made directly to the applicant has been held misleading or deceptive conduct within s. 52: see Menhaden Pty. Ltd. v. Citibank N.A. [38] . Such a representation may readily possess the character referred to in the preceding paragraph of these reasons, that is, be capable of misleading or deceiving persons in their capacity as consumers of goods or services. In this context we are not concerned with the acquisition of particular goods or services or in turn with the limitation in s. 4B by reference to the price or nature of the goods or services. See, for instance, Jillawarra Grazing Co. v. John Shearer Ltd. [39] and Atkinson v. Hastings Deering (Queensland) Pty. Ltd. [40] , where s. 4B(1)(a)(ii) was invoked in support of implied warranties under Div. 2 of Pt V. It is with consumers in the widest sense of that term that s. 52 is concerned.
Before this Court, counsel for the appellant attacked the decision of Wilcox J. in Lubidineuse v. Bevanere Pty. Ltd. [41] , a decision which was upheld by the Full Court of the Federal Court: Bevanere Pty. Ltd. v. Lubidineuse. In particular, criticism was made of the following statement by Wilcox J. [42] :
I hold that there is no implication in s. 52(1) limiting the relevant conduct to conduct which affects a person properly to be described as a "consumer". It is enough that the conduct of the corporation be misleading or deceptive and that it has occurred in trade or commerce. 1. (1984) 3 F.C.R. 1. 2. (1984) 3 F.C.R., at p. 17.
If Wilcox J. meant no more than that it was unnecessary that the applicant answer the description of "consumer", the statement is unexceptionable. If, on the other hand, his Honour was suggesting that s. 52(1) is not concerned with protecting persons in their capacity as consumers, the statement is at odds with the dicta of this Court referred to earlier in these reasons and indeed with dicta mentioned by his Honour earlier in his judgment. It is therefore likely that it was the first of these possibilities to which he was referring. The primary issue in Lubidineuse was whether the sale of a business used and intended to be used for commercial gain was a transaction in trade and commerce. And it is significant that the passage in the judgment of Wilcox J. to which exception was taken by the present appellant was not even mentioned in the judgment of the Full Court when that case went on appeal. It can hardly have been the linchpin on which the judgment depended.
The generality of the language of s. 52(1) must be accorded full weight within the framework of consumer protection in the sense described in these reasons. But, at the same time, the conduct complained of must be conduct in trade or commerce within the language of the provision, for only then is s. 52(1) attracted. The expression "in trade or commerce" recurs throughout Div. 1. There is a definition of trade or commerce in s. 4(1) of the Act but it is geographical and does not assist in resolving the issue presently before the Court. Heydon, Trade Practices Law (1989) comments at par. 11. 210:
The better view is that "in" means "within, as part of". It does not mean "in connection with" or "in relation to". The view that "in" means "within" is supported by Larmer v. Power Machinery Pty. Ltd. [43] . Even so limited, the expression "in trade or commerce" is a broad one, as the s 52 cases indicate.
While the conduct must be in the trade or commerce of the defendant, the party deceived need not be in actual or prospective trading relations with the defendant.
The present appeal proceeded on the assumption, tacit if not express, that the conduct said to have been misleading or deceptive must have been conduct in the trade or commerce of the appellant. No doubt, in most cases the focus will be on the nature of the defendant's business but the section is not so limited. It does not, in terms, refer to the trade or commerce of the particular corporation. It seems unlikely, given the nature of the activities with which Pt V, Div. 1 of the Act is concerned, that it should be necessary to consider closely the character of a corporation's business and in particular to determine whether or not the conduct relied upon by an applicant or plaintiff can fairly be said to be in the trade or commerce of that corporation. Notions of ultra vires can hardly have a part to play in this area of the law. The position of the expression "in trade or commerce" in s. 52(1), and indeed in other sections in Pt V, Div. 1, suggests that it is trade or commerce in general terms with which the statute is concerned.
In my view, s. 52(1) is 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". The words "trade or commerce" are of wide import: see Re Ku-ring-gai Co-operative Building Society (No. 12) Ltd. [44] . But their focus is on commercial activity, the providing of goods and services for reward. There is no reason why they should bear a different meaning to that which they bear in s. 51(i) of the Constitution, particularly when regard is had to s. 6(2) of the Act which seeks to give the Act an additional operation by reference to various heads of power in s. 51 of the Constitution. It is of interest to note that in Larmer , which was decided fairly soon after the Act came into operation, Nimmo J. said [43] :
I do not think that the expression "in trade or commerce" should be given the narrow interpretation contended for by counsel for the company. On the contrary I think the provisions of the Trade Practices Act, including the definition given to the expression in s. 4, demand that a very wide meaning be given to it. In my view, the expression is intended to cover the whole field in which the nation's trade or commerce is carried on. I reject the view that it is confined to any particular event which may occur in the conduct of a business which operates within that field. 1. (1978) 36 F.L.R. 134, at pp. 139, 167. 2. (1977) 29 F.L.R. 490, at p. 493.
Even taking such a broad view of s. 52(1), the preposition "in" clearly operates by way of limitation. 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. While there are dangers in seeking for the meaning of an expression through the substitution of another, the phrase "as part of trade or commerce" does, I think, come close to what is intended. Thus, when the appellant's foreman described the grates as being secured on either side with bolts, that statement must have been made as part of trade or commerce before an action could lie under s. 52(1).
This appeal must succeed. To begin with, the assurance given by the appellant's foreman to the respondent cannot, on any view of the matter, be regarded as conduct which was deceptive of persons in their capacity as consumers of goods and services. This is not because the assurance was given only to the respondent; it is because the assurance was not capable of misleading or deceiving persons in their capacity as consumers. It was given to a workman employed by the appellant and for the purpose of carrying out that employment.
Secondly, the appellant's conduct was not in trade or commerce within s. 52(1). If it is the trade or commerce of the appellant with which we are concerned, it may be said that the assurance given by its foreman was in relation to or in respect of that business. But so to conclude does not answer the question whether that assurance was in the trade or commerce of the appellant. In my view it was not, for the conduct was not part of the appellant's trade or commerce, which was that of constructing buildings for others for reward. It was, at most, incidental to that business. Likewise, if the question is whether the assurance was given in trade or commerce generally, the answer must be no. Again, it may have been given in relation to or in respect of trade or commerce in the sense that it was incidental to a commercial activity. But it was not given as part of trade or commerce in any general sense; rather, it was given by an employer to an employee, only for the purpose of the latter carrying out the work for which he had been engaged.
Unless s. 52(1) is confined in the manner suggested in these reasons, it becomes an overriding norm of conduct, a departure from which in any circumstance may give rise to a cause of action. The structure of the Act and its intent, as found in the language used and the legislative history, as well as its judicial history to date, tell strongly against such an operation.
The appeal should be allowed and the question asked of the Federal Court answered in the negative.
Concrete Constructions (N.S.W.) Pty. Ltd. ("the employer") appeals against a decision, made by Einfeld J. in the Federal Court, that the facts pleaded and particularised in a statement of claim filed by Mr. Grant Nelson ("the worker") gave rise to a cause of action against it pursuant to the Trade Practices Act 1974 Cth. In his statement of claim, the worker alleged that in July 1987 he was employed by the employer on a building site in Sydney. His duties included the moving of grates positioned at the entry points to air-conditioning shafts. Before he carried out that work his foreman informed him that each grate was secured by three bolts on either side. That statement was untrue. While the worker was removing one of the grates, it gave way and caused him to fall to the bottom of an air-conditioning shaft. He suffered serious injuries. The issue in the appeal is whether s. 52 of the Trade Practices Act applies to representations made by an employer to his employee concerning matters relating to the safety of the latter's employment.
(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of sub-section (1).
Mr. Bennett Q.C., for the employer contended that s. 52 is confined to the protection of consumers and that it does not extend to the protection of members of the public in their capacity as employees. In Lubidineuse v. Bevanere Pty. Ltd. [45] , after examining a number of decisions in this Court, Wilcox J. held [46] that there was "no implication in s. 52(1) limiting the relevant conduct to conduct which affects a person properly to be described as a "consumer" ". On appeal, the Full Court of the Federal Court unanimously upheld the reasoning of Wilcox J. on this point: Bevanere Pty. Ltd. v. Lubidineuse [47] . In Wright v. T.N.T. Management Pty. Ltd. [48] , sitting as a member of the Court of Appeal of New South Wales, I held [49] that that Court should follow a decision of the Full Federal Court on federal legislation unless it was convinced that the decision was "clearly erroneous" and that it should apply the holding in Bevanere Pty. Ltd. v. Lubidineuse. However, while the construction which the Federal Court placed on s. 52 in Bevanere Pty. Ltd. v. Lubidineuse is one that is open, the correct construction of that section, in my opinion, is that it is limited to the protection of consumers and not to the protection of members of the community in other capacities.
Section 52 is found in Div. 1 of Pt V of the Trade Practices Act. The Act itself is described as "An Act relating to certain Trade Practices". Part V has the heading "Consumer Protection". Section 52 does not identify the persons who are protected from misleading or deceptive conduct. On its face, the section applies to any misleading or deceptive conduct which occurs in trade or commerce. Consequently, Mr. Douglas Q.C., for the worker, contended that there was no warrant for confining the protection of s. 52 to members of the public in their capacity as consumers. But the "words of any statutory provision must be first read in the context provided by the statute as a whole": K. & S. Lake City Freighters Pty. Ltd. v. Gordon & Gotch Ltd. [50] , per Gibbs C.J. The context of a provision in a federal Act includes any relevant heading, for a heading is part of a federal Act: Acts Interpretation Act 1901 Cth, s. 13(1).
If recourse could be had to the succeeding provisions of Div. 1, as well as the headings of Pt V and Div. 1, it would be easy to conclude that the object of Pt V is the protection of consumers and that only members of the public in their capacities as consumers are protected by s. 52 from misleading or deceptive conduct by corporations in trade or commerce. When originally enacted, Pt V contained three divisions. Division 1 had the heading "Unfair Practices". Division 2 had the heading "Conditions and Warranties in Consumer Transactions". Division 3 was headed "Miscellaneous". Leaving aside s. 52, the provisions of Pt V, except for ss. 59 and 75, prescribed rules for or in relation to the supply of goods and services. Section 59 prohibited false or misleading statements concerning the profitability or risk or any other material aspect of any business activity that the corporation represented could be carried on at a person's place of residence. Section 75 dealt with the saving of other laws and remedies. Part V has been amended since it was enacted and new divisions and headings added. But, except in two respects, the amendments have not changed its basic subject matter - the prescription of rules for or in relation to the supply of goods and services. The two exceptions are ss. 53A and 53B. Section 53A prohibits false representations and other misleading or offensive conduct in relation to the sale of or grants of interest in land; s. 53B prohibits misleading conduct in relation to offers of employment.
Except for s. 59, therefore, and leaving aside s. 52, the provisions of Div. 1, when originally enacted, were designed to protect the consumers of goods and services. And even s. 59 was a consumer protection provision, in a broad sense, since its chief area of operation was in respect of the acquisition of franchises, expertise or stock required for the carrying on of a domestic business. Notwithstanding the various amendments to Pt V since 1974, the protection of consumers has continued to be the chief, and almost exclusive, object or purpose of Pt V. In this context, it would be easy to conclude that the purpose of Parliament in enacting s. 52 was to protect consumers, but not other persons, against every kind of misleading or deceptive conduct irrespective of whether the conduct otherwise fell within any of the specific provisions of Pt V. Moreover, the terms of the Second Reading speeches and debates in the Senate and the House of Representatives confirm that consumer protection was the object of Pt V and, consequently, of s. 52. However, the terms of s. 52(2) preclude the succeeding provisions of Div. 1 from being "taken as limiting by implication the generality of sub-section (1)". No doubt there is much to be said for the conclusion that, while s. 52(2) precludes use of the succeeding provisions to limit the general words of s. 52(1), it does not preclude the use of those provisions to identify the scope or object of s. 52(1). But whether that is so or not, I think that, even if regard is had only to the headings of Pt V and Div. 1 of that Part, the proper conclusion to be drawn from the enactment of those headings is that the object or purpose of s. 52 was, and remains, the protection of consumers and not other persons.
In Silk Bros. Pty. Ltd. v. State Electricity Commission of Victoria [51] , Latham C.J. said:
The headings in a statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision (see In re Commercial Bank of Australia Ltd. [52] ). "But where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment" (Bennett v. Minister for Public Works (N.S.W.) [53] , per Isaacs J.). 1. (1943) 67 C.L.R. 1, at p. 16. 2. (1893) 19 V.L.R. 333, at p. 375. 3. (1908) 7 C.L.R. 372, at p. 383.
It may be that this passage represents too limited an approach to the construction of federal statutes and that their headings must always be taken into account in determining the meaning of their provisions. But in any event, a heading may be taken into account to determine the scope of a provision expressed in general terms: cf. Ragless v. District Council of Prospect [54] . As Holroyd J. pointed out in In re Commercial Bank of Australia Ltd. [52] , a heading in an Act is "intended to indicate a certain group of clauses as relating to a particular subject".
In Reg. v. Credit Tribunal; Ex parte General Motors Acceptance Corporation [55] Mason J., with whose judgment Barwick C.J., Gibbs, Stephen and Jacobs JJ. agreed, held that the headings of Pt V and Div. 1 could be used to explain the meaning of misleading in s. 52. Mason J. said [55] :
"Misleading" is a word which is capable of expressing various shades of meaning, sometimes signifying that which is subjectively misleading and at other times that which is objectively misleading. Its meaning therefore is apt to be influenced, indeed decisively influenced, by the context in which it is found. Here the setting in which s. 52(1) appears is shown by the headings "Part V - Consumer Protection" and "Division 1 - Unfair Practices". Reg. v. Credit Tribunal, therefore, is a precise authority for the proposition that the headings of Pt V and Div. 1 may be used to determine the scope and meaning of s. 52. And just as the context created by the headings to Pt V and Div. 1 was used in that case to determine the meaning of the term "misleading", so it seems proper, and indeed necessary, to use the same context to determine who are the persons whom s. 52 protects from misleading and deceptive conduct as opposed to those persons who can enforce the section (see ss. 80 and 82). 1. (1977) 137 C.L.R. 545, at p. 561. 2. (1977) 137 C.L.R. 545, at p. 561.
If the argument of the worker is correct, the object of s. 52 was to protect, in trade or commerce, every person from any conduct of a corporation which is misleading or deceptive or is likely to mislead or deceive. It is not apparent why, in the course of enacting a Trade Practices Act and under the headings "Consumer Protection" and "Unfair Practices", the Parliament should intend to regulate all conduct of a corporation, engaged in for the purpose of its trade or commerce, which misleads or deceives or is likely to mislead or deceive. Nor is there anything in the Second Reading speeches or debates in the House of Representatives and the Senate which gives the slightest support for that proposition.
If the contention of the worker is correct, it logically follows that under s. 52 a person can bring an action against a corporation for conduct in its capacity as a consumer. 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. [56] ; Orison Pty. Ltd. v. Strategic Minerals Corporation N.L. [57] ; Glorie v. W.A. Chip & Pulp Co. Pty. Ltd. [58] . Moreover, once it is held that s. 52 is not confined to the protection of members of the public in their capacity as consumers, it is very difficult to confine the section by giving the words "in trade or commerce" a narrow construction. It seems almost paradoxical to hold that the general prohibition of misleading or deceptive conduct in s. 52 requires rejection of the construction that the section is limited to consumers and at the same time to hold that the words "in trade or commerce" which are part of that general prohibition have a restricted meaning. If the general words of the section require that it be read as going beyond the protection of consumers, then I can see no reason for confining those words to misleading or deceptive conduct of a trading or commercial character or to conduct in the course of activities which are of the essence of trade or commerce. Rather the general nature of the words would require them to be read as including any misleading or deceptive conduct which occurs in the course of trade or commerce. It would seem most unlikely that the Parliament, ex hypothesi, having gone beyond consumer protection, would intend those general words to proscribe only some kinds of misleading or deceptive conduct occurring in the course of trade or commerce.
Moreover, to interpret the words "in trade or commerce" by reference to the trading or commercial character of the conduct rather than by reference to its relationship with the course of trade or commerce must result in a reduction of protection for consumers, the very persons whose interests Pt V was intended to protect. Much conduct which affects the marketplace, and thereby affects the choices of consumers, is of a social, sporting, industrial or political character and cannot properly be described as being of a trading or commercial character or as being made in the course of activities which are of the essence of trade or commerce. Statements concerning the environment, political issues, industrial practices, women and ethnic groups, for example, may influence consumers interested in those matters to deal with one trader in preference to another even though the statements are not made as part of those activities which are of the essence of trade or commerce. Many corporations, without referring to their goods or services, also spend much time and money promoting their corporate images. They take these steps to enhance the goodwill of their corporations and to influence the attitudes of consumers towards them. It would unduly limit the operation of s. 52 if a corporate shopkeeper was liable for the misleading statement that its products were safe but not for the misleading window sign that it financially supported the Australian Olympic team. Both statements would be designed - one directly, the other indirectly - to induce consumers to buy the corporation's goods. In Larmer v. Power Machinery Pty. Ltd. [59] , Nimmo J. asserted that the words "in trade or commerce" were intended "to cover the whole field in which the nation's trade or commerce is carried on" and that they were not "confined to any particular event which may occur in the conduct of a business which operates within that field". I think that this assertion was correct. The words "in trade or commerce" in s. 52, in my opinion, cover the whole range of activities which are directed to the exchange of goods and services in Australia.
If the headings to Pt V and Div. 1 cannot be used to cut down the scope of s. 52, then its range is very wide indeed. However, as I have pointed out, Reg. v. Credit Tribunal is authority for the proposition that the "Consumer Protection" heading may be used to interpret the word "misleading" in s. 52, and I can see no reason why that heading should not be used to identify the scope of s. 52.
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. As a matter of construction, the headings to Pt V and Div. 1 identify the scope of s. 52 as being limited to unfair practices which mislead or deceive or are likely to mislead or deceive consumers. Those headings are also inconsistent with any hypothesis that s. 52 is directed to unfair practices generally or to those unfair practices which are of an essentially trading or commercial character. The heading to Pt V is a strong indication that the object of s. 52 was the proscription of any conduct by a corporation, in the course of the nation's trade or commerce, which misleads or deceives or is likely to mislead or deceive consumers. Thus, a non-trading, non-commercial corporation may be liable under s. 52 if, in the course of the nation's trade and commerce, it engages in conduct which affects or may affect consumers.
A construction of s. 52(1), limited to the protection of consumers, does not contradict any of the express words of the section and it gives it a meaning which is in harmony with its terms and the succeeding provisions of Div. 1. Such a construction of s. 52(1) also fits the framework of Pt V better than a construction which extends to protecting members of the community in capacities other than that of consumers.
However, Mr. Douglas contended that the reasons for judgment of this Court in Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Ltd. [60] and in Parkdale Custom Built Furniture Pty. Ltd. v. Puxu Pty. Ltd. [61] precluded the use of the heading of Pt V to limit the scope of s. 52(1). In Lubidineuse v. Bevanere Pty. Ltd., Wilcox J. came to the same conclusion and, as I have mentioned, the Full Court adopted his reasoning.
Mr. Douglas placed much reliance on a passage in the judgment of Stephen J. in Hornsby Building Information Centre Pty. Ltd. v. Sydney Building Information Centre Ltd. [62] , where his Honour said:
To subject the clear and quite general words of s. 52 to some limitation derived from the heading to Pt V is, I think, especially inappropriate in the case of this particular legislation. The Act is intricately drafted, some of its provisions being expressed in terms of broad generalities, as is s. 52, others in elaborate detail. Each may be seen to take the precise form it does because of the particular work intended for it. 1. (1978) 140 C.L.R., at p. 225.
In Lubidineuse v. Bevanere Pty. Ltd. [63] , Wilcox J. also regarded this passage as supporting the proposition that the heading of Pt V could not be used to determine the meaning of s. 52(1). But the remarks of Stephen J. were directed to rebutting an argument that s. 52 was to be read in the light of the definition of consumer in s. 4(3) of the Act. This is clear from an earlier passage in his Honour's reasons where he said [64] :
It was upon the heading to Pt V of the Act, "Consumer Protection", that reliance was principally sought to be placed, that heading being interpreted in the light of the quasi-definition of consumer in s. 4(3) of the Act. In my view this heading does not restrict the effect of s. 52 in the manner contended for, although it does colour the meaning to be given to the sort of conduct against which the section is aimed. (My emphasis.) 1. (1984) 3 F.C.R., at pp. 15-16. 2. (1978) 140 C.L.R., at pp. 223-224.
The emphasized passage rejects the notion that the heading to Pt V cannot be used to determine the scope of s. 52. It accepts that it can. Significantly, in a later passage in his judgment, Stephen J. said [65] that s. 52 was "exclusively concerned with consumer protection". Jacobs J. agreed [66] with the judgment of Stephen J. In the same case Barwick C.J. said [1] that s. 52 is concerned "with conduct which is deceptive of members of the public in their capacity as consumers of goods or services". Aickin J. agreed [2] with the judgment of the Chief Justice. Of the judges who decided Hornsby , only Murphy J. [3] said that s. 52 was not "limited or qualified by the heading of the Part "Consumer Protection" ". With great respect to Wilcox J. and the members of the Full Court in Bevanere Pty. Ltd. v. Lubidineuse, Hornsby does not support the proposition that the headings of Pt V and Div. 1 cannot be used to interpret s. 52(1). Indeed, with the exception of Murphy J., their Honours in that case assumed that the effect of the headings was to confine the protection of s. 52(1) to consumers.
Nor, apart from one passage in the judgment of Mason J., do the reasons for judgment in Puxu assist the worker. Puxu concerned an action brought by one trader against another to restrain a breach of s. 52. In that case Gibbs C.J. said [4] that, while s. 52 did not expressly state what persons or class of persons should be considered as possible victims for the purpose of deciding whether conduct was likely to mislead or deceive, it seemed clear enough "that consideration must be given to the class of consumers likely to be affected by the conduct". In his reasons for judgment, however, Mason J. said [5] that the general words of s. 52(1) "should be widely interpreted without being read down by reference to the heading of Pt V "Consumer Protection" or to the more specific succeeding sections". But, immediately after this passage, his Honour said that, although "s. 52(1) is intended to protect members of the public in their capacity as consumers of goods and services, competitors may seek an injunction to restrain breaches". Later his Honour said [6] that it "is not enough that conduct damages a rival trader; it must mislead or deceive or be likely to mislead or deceive members of the public in their capacity as consumers". Other passages in his Honour's reasons for judgment show that he perceived the object of s. 52 to be the protection of consumers [7] . The remarks of Mason J. in Puxu should not be read as supporting the proposition that the heading cannot be taken into account to determine whether consumers are the persons intended to be protected by s. 52(1). It would be surprising if, sub silentio, his Honour intended to reject what he said in Reg. v. Credit Tribunal as to the use of the headings to Pt V and Div. 1. His Honour's remarks in Puxu have to be read in accordance with the facts of that case. He was concerned to deny that the heading to Pt V meant that only consumers could enforce s. 52.
Apart from the above passage in the reasons for judgment of Mason J. in Puxu and the statement of Murphy J. in Hornsby , nothing in any previous decision of this Court gives support to the conclusion that s. 52 protects persons other than consumers from misleading or deceptive conduct. To the contrary, the reasons for judgment of the majority of the members of the Court in Hornsby support the conclusion that s. 52 was enacted for the exclusive protection of consumers.
Since there is no authority in this Court which stands in the way of reading s. 52 in the light of its heading, 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. "Consumer" in the heading of Pt V is not confined to those persons fulfilling the conditions set out in s. 4B. That section is concerned to limit the classes of consumers who may recover losses sustained by proscribed kinds of conduct.
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. The appeal must be allowed. The answer of the Federal Court to the question asked must be set aside. In lieu thereof, the question should be answered - No. The respondent (worker) must pay the costs of the appeal and the determination of the preliminary question in the Federal Court.
Concrete Constructions (NSW) Pty Ltd
Nelson