This may identify issues relating to competency of practitioners, however, M (sic) Cormack pointed out that it is well known that the majority of errors in the provision of health care are not related to the competency or incompetency of individual practitioners, but rather to a combination of system issues and situational factors."
After that exchange the meeting proceeded to deal with the concerns of Dr Downe relating to Dr Coughtrey. They fell in to two broad categories: the first being performance management; the second being health related and fitness for work issues.
172 The meeting agreed that the performance management issues would be incorporated into the recently announced performance review process. The fitness for work and health related issues were discussed and the general responsibility of an employer, to ensure there should be no unreasonable risks to patients, public and staff, was noted. It was acknowledged that the issue was a sensitive one and Dr Downe was referred to the policy dealing with "impaired clinicians" and that Dr Downe would put together a summary of health and fitness for work concerns and present those to Ms Drum for further action through the normal processes.
173 An important aspect of the meeting was that the meeting would be regarded as "confidential". I accept the accuracy of the file note as a general summary of that which occurred at the meeting. It therefore follows that the raising of the complaints about Dr Coughtrey were to be dealt with by separate and quite distinct processes than the general issues otherwise in the clinical review suggested by Mr Cormack. It also follows that the issues raised by Dr Downe were essentially performance related and derived from a concern as to health issues. This is the evidence of Dr Downe. It is also the evidence of Ms Drum. With some qualifications, it is the evidence of Mr Cormack. I find, in accordance with the evidence of Dr Downe and Ms Drum, and contrary to the evidence of Mr Cormack, that Dr Downe particularised her concern as relating to the effect of Dr Coughtrey's diabetes.
174 That which also flows from the file note is that Dr Downe raised, in relation to the calling of such a review, a concern that it would be seen to be targeted at an individual neonatologist (and ought not be) and that it may be seen as an investigation of the misconduct of clinicians who have hidden or not reported their misconduct (the reference to Camden/Campbelltown).
175 Contrary to the proposition that the calling of the review was an attempt by Dr Downe to target Dr Coughtrey, it was Dr Downe's reservation at the meeting that ensured that there was agreement that the review would not target any individual clinician. Mr Cormack and Ms Drum must have known that at the time they received the complaint from Dr Coughtrey.
176 Dr Downe explained to the other neonatologists that a review would be conducted, the purpose of which would be to look at concerns involving the presence of paediatricians in the nursery. This occurred in or about July 2004 (see the Affidavit of Dr Coughtrey [35]). Given that Dr Downe went on leave on 1 July 2004, it is most likely that the reference to July by Dr Coughtrey was a mistaken reference and should have been a reference to June. After Dr Downe went on leave, in or about July 2004, the three neonatologists were given the Terms of Reference. The Terms of Reference, as finalised, were not available prior to Dr Downe commencing leave.
177 The separate issues raised by Dr Downe concerning the effect of Dr Coughtrey's diabetes on her performance and capacity were the subject of correspondence the effect of which was that Dr Downe was to complete the report for lodging on her return from leave in September 2004. This would still have been within the timeframe of the Reynolds Inquiry/Report. Dr Downe never returned from leave.
178 In or about July 2004, Mr Cormack convened a meeting with Ms Drum and Drs Tracy and Coughtrey. In that meeting, Mr Cormack told the doctors, notwithstanding the agreement as to confidentiality, that Dr Downe had enquired of the Complaints Department (Felicity Lindfield) about parent complaints and had raised concerns about management within the Unit because of which the clinical review by Dr Reynolds had been commissioned.
179 Mr Cormack, in his evidence, was clear that he had informed the doctors in that meeting that he, Mr Cormack, was responsible for the calling of the Inquiry, but it is obvious, from the impact of the meeting and the understanding evidenced in the letters of complaint, that, if such responsibility were taken, the responsibility was taken in a manner that was formulaic and still gave the impression that it was Dr Downe that was the cause of the Inquiry and that it was Dr Downe's complaints about Dr Coughtrey that were to be investigated.
180 The letters of complaint, particularly those of Drs Coughtrey and Tracy, make clear that their view was that the Reynolds Inquiry was established because of the complaints by Dr Downe about Dr Coughtrey. Even if, contrary to the facts as I have found them, Mr Cormack genuinely sought to convey his responsibility for the calling of the Reynolds Inquiry, on receipt of the letters of complaint, he must have known his attempts had been unsuccessful and that Drs Coughtrey and Tracy were under a misapprehension as to the nature and purpose of that Inquiry.
181 Mr Cormack advised Drs Coughtrey and Tracy to lodge written complaints reflecting their problems and to do so as protected disclosures.
182 At the time of the initial suspension of Dr Downe, and at all times thereafter, Mr Cormack was aware that the most important issue (and the catalyst) for the letters of complaint was the misapprehension by Drs Coughtrey and Tracy that the Inquiry had been sought by Dr Downe and was aimed at resolving complaints by Dr Downe about the conduct and capacity of Dr Coughtrey and that Dr Downe had misled them on these issues.
183 At all relevant times, Mr Cormack knew that this was a misunderstanding. At no time did Mr Cormack appropriately seek to disabuse Drs Tracy and Coughtrey of that misunderstanding and at no time after the receipt of the letters of complaint did he seek, whether appropriately or otherwise, to disabuse them of that misunderstanding. Indeed, the calling of the Peterson Inquiry and the reference to it of a Term of Reference requiring investigation of this complaint, known by the Health Service to be untrue and misapprehended, encouraged and/or condoned the misapprehension.
184 Mr Cormack misrepresented the purpose of the Reynolds Inquiry (or made representations with that effect), drafted or finalised Terms of Reference of the Reynolds Inquiry that were ambiguous on this issue, planted those misapprehensions in the minds of Drs Coughtrey and Tracy, and then encouraged them to complain about it. Mr Cormack then used that complaint as a reason for the calling of the Peterson Inquiry and the threat of the loss of neonatologists, arising from those complaints, as the reason for the suspension of Dr Downe. I will return to the motive, or possible motive, for such conduct.
185 Further, Drs Coughtrey and Tracy apportioned blame to Dr Downe for not telling them of the Terms of Reference. At the time that Dr Downe commenced leave she was unaware of the final Terms of Reference. Moreover, she was bound, by the confidentiality requirement of the meeting of 5 March 2004, not to advise her fellow clinicians of the discussions that occurred at that meeting. Mr Cormack, without informing or obtaining the consent of the other participants, breached that confidentiality and breached it in a manner which misrepresented, or had the effect of causing a misunderstanding, of the events that led to the Reynolds Inquiry. Moreover, at no stage did Mr Cormack advise the neonatologists with whom he was meeting (which excluded Dr Downe) that it was Dr Downe that insisted, at the meeting on 5 March 2004, that the Inquiry should not be directed at any individual clinician.
Relationships with the Paediatric Department
186 There is absolutely no substance to the complaint, nor is there any attempt to defend the complaint, regarding lack of cooperation, at a personal level, between paediatricians and the Unit. The issues involving paediatrics involve a significant clinical difference between the views of Professor Nanan and those of Dr Downe.
187 Dr Downe took the view that general paediatricians should not work in the Unit and should not determine, without the involvement of a neonatologist, entry to, or release from, the Unit. Professor Nanan had a different view.
188 There has been no attempt by the Health Service to suggest that Dr Downe's view was unreasonable. Indeed, there has been no attempt by the Health Service to submit or adduce evidence that would prove that Dr Downe's view was wrong.
189 On the evidence that is before the Court, Dr Downe's view was supported by a number of independent inquiries that were commissioned by the Health Service and was consistent with the practice in other neonatal intensive care units. Senior management at the Hospital had refused to finalise this issue. The failure to finalise this matter, and determine it in accordance with the independent reviews and/or the views of Dr Downe, created a situation where, quite reasonably, the issue continued to be agitated. It caused friction between Professor Nanan and Dr Downe and between the paediatrics department and the Unit.
190 When Dr Downe went on leave and Dr Tracy took on the position of Acting Director, Dr Tracy, at the request of Ms Drum, changed the clinical practice of Dr Downe and allowed, inconsistently with the findings of the independent reviews and inconsistently with the practice in other neonatal intensive care units in NSW, general paediatricians to work in the Neonatal Intensive Care Unit. This was done prior to the finalisation of the Peterson Inquiry and prior to the finalisation of the Reynolds Report. Ms Drum, in making that request, was implementing the direction imposed by Mr Cormack (D2, Tab 150, Transcript p 405).
191 Necessarily, once the Acting Director implements a different practice, the Hospital would need to advise the Director, on her return, that her clinical opinion had been overridden by persons, none of whom were neonatologists and inconsistently with the views of other neonatologists in the State.
192 There is some evidence as to what may have motivated this request. Dr Tracy testifies that Ms Drum directed him to resolve the problems with paediatrics because the Hospital did not want to lose Professor Nanan. I infer that this reason motivated the failure by the Hospital to finalise the issue in a manner consistent with Dr Downe's clinical opinion and consistent with the independent reviews that had been undertaken at a much earlier time.
193 The Health Service in these proceedings have, as has been noted on a number of occasions, emphasised the clinical expertise of Dr Downe and have expressly submitted that her clinical decisions are not in question. As a consequence of that attitude, the Court must take the view that the clinical decision of Dr Downe, namely, that neonatologists ought be responsible for the operation of the Unit and that general paediatricians ought not be involved in its working, was correct.
194 The conclusion that the relationship with the paediatrics department involved a clinical decision on which Dr Downe could not be criticised necessarily resolves any complaint based upon that issue.
Other Complaints Referred
195 The detailed complaints contained in allegations A11, A12, A13 and A14 have been shown to have either no significance or no substance. In that regard, I simply adopt the findings of the Honourable Russell Peterson QC.
196 In all other respects as to the individual complaints made against Dr Downe and referred to the Honourable Russell Peterson QC, I accept, with unfeigned respect, his findings. In that regard, where there is a difference in the evidence between the parties, I prefer the evidence of Dr Downe.
197 In particular, I do not accept that it is a legitimate complaint that Dr Downe misinformed Dr Coughtrey in or about 1994 of her eligibility for senior staff specialist status. First, the allegation referred to in the Peterson Inquiry, referred to an allegation "7 years ago" when, at that stage, it is an allegation of a conversation that occurred 10 years prior to the Inquiry. If that were not enough to disclose the pettiness of such an issue, it should be remarked that Dr Downe had no responsibility for the remuneration of Dr Coughtrey. There was an entire Human Resources Department at Nepean Hospital and otherwise an even larger one at the relevant Health Service. Dr Coughtrey had a union, ASMOF, who was involved in advice to its members (and non-member doctors) as to their entitlement to pay and allowances, and Dr Coughtrey had been appointed and was remunerated, to her knowledge, as a "Salaried Senior Medical Practitioner" under the Salaried Senior Medical Practitioners' (State) Award. Further, it is not suggested by anyone that Dr Downe deliberately misinformed Dr Coughtrey in 1994.
198 As to the allegation relating to research (Allegation A5) raised by Dr Tracy, I find that Dr Downe was involved in the research from an early stage. I find that Dr Tracy raised with Dr Downe the involvement of Dr Coughtrey and that Dr Downe's reply was in or to the effect that it was Dr Tracy's research and he should involve whom he wanted. I find that Dr Downe did not stop Dr Tracy from involving Dr Coughtrey nor threaten to undermine support for the research project.
199 Allegations A6, A7, A8, A12 and A14 were dealt with adequately, with respect, by the Peterson Inquiry. The evidence before this Court does not affect the correctness of those findings.
200 Allegation A13 has been dealt with in the discussion on the evidence of Dr Pardey, as has the issue in Allegation A11 relating to the research of Mr Marceau.
201 Allegation A9 is a wholly clinical issue relating to the use of fluticasone as distinct from budesonide. The earlier comments relating to clinical skills are apposite. To the extent that the issue requires determination, on the evidence before the Court, the clinical view of Dr Downe, which has not been challenged, must be preferred.
202 It is also apparent from the analysis already provided that Allegations B2, B3 and B4 were valid. My difference in outcome on these matters to the Peterson Report arises, with respect, from the nature of the process adopted by the Honourable Russell Peterson QC as distinct from these proceedings, which has involved the adducing of significantly more material than was before the Peterson Inquiry and has also allowed for the testing of the views of participants as against independent or contemporaneous material and by cross-examination.
Mr Cormack's Possible Motive
203 The Court has previously noted that Mr Cormack had organised the Peterson Inquiry and the information to staff at a number of levels. First, it was Mr Cormack who suggested the Reynolds Inquiry. Secondly, it was Mr Cormack who drafted and finalised the Terms of Reference of that Inquiry. Thirdly, it was Mr Cormack who met with the neonatologists, other than Dr Downe, and informed them of the complaints by Dr Downe of Dr Coughtrey, which complaints, he accepted, were the catalyst for the Inquiry. Fourthly, Mr Cormack did not inform the neonatologists that Dr Downe was the person at the meeting on 5 March 2004 that insisted that the Inquiry not target an individual clinician. Next, Dr Cormack, having sewn the seeds of what, on any view, would be seen by the other clinicians as a serious breach of trust by Dr Downe (see Transcript at p 398, lines 24 -32), advised the clinicians to complain in writing and to do so by protected disclosure.
204 Mr Cormack then called a meeting with his line manager and a human resources specialist to advise them (without, at that time, any indication from the clinicians of the fact) that at least two of the neonatologists would leave, if Dr Downe were to return, and/or to advise them of the possibility of reprisals (of which possibility there was and is no evidence). As a consequence of that advice, Dr Downe is suspended. Mr Cormack, who is aware of the letter to Dr Downe and its terms, then drafts a memorandum to all staff that is fundamentally inconsistent with the terms of the letter to Dr Downe and in particular as to what information will be provided to staff as to the reason for Dr Downe's non-attendance at work. The effect of that memorandum must have been to undermine the possibility Dr Downe returning to work at the Unit.
205 Further, it is Mr Cormack who briefs the Honourable Russell Peterson QC who, without being referred the issues, comes to a view as to the "breakdown of personal relationships", to which reference has been made.
206 There is no doubt, as attested by each of the witnesses with relevant experience, that work in a neonatal intensive care unit is highly stressful. It would be contrary to common sense if that were not so. The Unit is dealing with babies who, by definition, are in life-threatening situations and for whom decisions as to their medical management will have critical impact. Such an environment, almost by definition, will create stress. Each of the witnesses attests to that fact. The evidence before the Court is that during Dr Downe's suspension, issues of that kind arose as between specialists and other medical staff, between the specialists inter se, if not otherwise included between specialists and registrars, between registrars and nurses and between specialists and nurses. In that regard, there are issues, albeit of lesser moment, of that kind in almost every hospital department. In an intensive care department, dealing especially with premature babies less than 30 weeks of age, those stress factors are raised exponentially.
207 The evidence also discloses that Dr Downe did not, at all times, deal with stress situations optimally. There were personal differences between the neonatologists. In particular, there were personal differences between Dr Downe and Dr Coughtrey. The primary cause of that is not clear from the evidence. It may be that the rather loose reporting lines implemented by management are a factor. Dr Coughtrey took the view that she was a "clinician of equal standing" to Dr Downe and that, in that capacity, she was entitled to argue with Dr Downe as to the clinical treatment to be implemented. Dr Downe, on the other hand, as Director of the Unit, took the view that she was ultimately responsible for the clinical management of all patients in the Unit. The evidence does not disclose any steps taken by senior management to resolve that fundamental issue. Failure to resolve that issue would necessarily create conflict.
208 A number of the "personality issues" that were raised during the course of the evidence were said to be relevant to the discretion of the Court to make orders, if the Court were otherwise minded so to do. The personality issues sought to dredge up conflicts that had occurred since 1991 between Dr Coughtrey and Dr Downe and otherwise between members of the staff. This was done without seeking to adduce evidence as to the truth or merits, or otherwise, of claims and counterclaims.
209 The Health Service submits that the Court should take the view that the mere existence of these issues, whatever may be their merits, is sufficient to prevent the making, on the basis of discretion, of the orders. There are difficulties with this approach. First, it seems that it is an attempt to adduce "tendency evidence" without meeting any of the criteria necessary for its admission. Secondly, a large number of these issues related to the attitude not only of Dr Downe but also of other staff who are still employed at the Unit.
210 Further, the occasion for these personality issues within and amongst the Unit was predominantly at the handover on Monday mornings and related to a dramatic alteration in the clinical management of one or more patients. Given the comments already made on the attitude of the Health Service to the clinical judgment and skills of Dr Downe (the evidence that otherwise supports that attitude and the absence of any evidence that challenges the appropriateness of these medical decisions), it would be quite inappropriate for me to assess any change that she implemented in the clinical management of a patient as otherwise than justifiable.
211 As is clear from some of the evidence summarised in this judgment, Dr Downe was exacting and had extremely high standards in the treatment of patients. The evidence of Dr Coughtrey on the necessity, in her mind, to do tests that she would otherwise not have done, simply to satisfy Dr Downe's standards, is an example.
212 From the perspective of a senior manager in the position of Mr Cormack, those exacting standards and the conflict created by their implementation, together with the insistence upon clinical standards that detracted from the desired role of Professor Nanan and the Paediatrics Department, would have been a constant thorn in his side. Because Mr Cormack is not a doctor, his attitude to these matters was one borne out of administrative requirements. His priority (and I do not suggest inappropriate priority from his standpoint) would have been the attainment of peace, which may not have drawn a distinction between the clinical views of one neonatologist to another, or indeed a distinction between the clinical views of a neonatologist compared with the views of a general paediatric specialist.
213 In those circumstances, relieving the Unit of Dr Downe in her role as Director was a desirable outcome, regardless of the merits or otherwise of the issues in dispute or the matters of complaint.
214 Given the knowledge of Mr Cormack as to the inability to substantiate a number of the complaints that were referred to the Peterson Inquiry and the circumstances that gave rise to the calling of the Reynolds Inquiry (which matter was also referred to the Peterson Inquiry), there may be an inference available that the calling of the Peterson Inquiry, and the reference to it of a number of the complaints, was designed not to ascertain the truth or otherwise of those complaints (which was in large measure already known to Mr Cormack), but rather to establish the circumstances that would allow Mr Cormack and/or the Health Service, at his request, to suspend and/or otherwise deal with Dr Downe and release her from her responsibilities as Director of the Unit. Ultimately, it is unnecessary for the Court to draw that inference.
(G) The Decisions to Suspend Indefinitely
215 On 10 February 2005, the Peterson Report was published. Mr Murphy, the Health Service's Human Resources and Workplace Relations Specialist, had a view as to its findings. His view was that the Peterson Report found the allegations made against Dr Downe to be wholly or substantially unproven. He describes the findings as overwhelmingly in favour of Dr Downe on the specific complaints against her (Transcript p 479). Mr Murphy recalls that he probably told Professor Gordon that view and may or may not have told Ms Drum. He certainly did not tell Professor Nanan or Dr Pardey.
216 To the extent that it accepted Mr Murphy's view, the Health Service had come to the view that the Peterson Report was overwhelmingly in favour of Dr Downe. As a consequence, it had failed to comply with the requirements of the guidelines in relation to protected disclosures. It had also failed to comply with the disciplinary policy that it had promulgated and on which it, and Dr Downe, had relied for the establishment of a fair process. Dr Downe agreed to the process for the Peterson Inquiry, and thereby acted to her prejudice, in the understanding that any Report arising from the Inquiry would be confined to the specific allegations referred to it and that any such Report findings would be binding on the Health Service, and reported to staff.
217 Ms Drum maintains that she was unaware that the Peterson Report found, overwhelmingly or otherwise, in Dr Downe's favour. There was, she says, no discussion between senior management as to the effect, if any, of the Peterson Report.
218 Professor Gordon came to the view that the Peterson Report was not in favour of Dr Downe. She did so because that was her impression of the entire Report and not because of a finding in relation to any or all of the individual complaints.
219 It is an inescapable conclusion that the Health Service acted upon the comments, recited above, in paragraph 1 of the Peterson Report and formed the view that the expressions of personal opinions and allegations (whether or not correct), together with the fact of Dr Downe's suspension, meant that there was no capacity for Dr Downe to return to the Unit in any capacity. The Health Service, as a consequence, continued the suspension and sought to resolve the issues by finding an agreed solution.
220 There is not, and could not be, evidence before me as to whether the attempts at resolution by either the Health Service or Dr Downe were reasonable or otherwise. It is the fact that the parties were unable to resolve the matters by an agreed solution.
221 As a consequence of the attitude of the Health Service, it is a necessary inference that any agreed solution could not involve a return by Dr Downe to the Unit. The Health Service continued the "suspension", which continues to this date. At least after the Peterson Report, Dr Downe did not accept the capacity of the Health Service to direct her not to perform work. Nor did Dr Downe accept any variation to her contract of employment in that regard. Dr Downe participated in the attempts to resolve the matter by agreement. Her or her representative's request that the Health Service do nothing precipitous was not an agreement to the suspension but an exhortation not to dismiss or transfer without adequate notice, so that steps could be taken to protect her position. This is exactly what happened when the direction to work at Westmead issued.
222 Any discussion that occurred in order to resolve the matters simply recognised the reality that it would be impossible for Dr Downe to obtain forced entry (or unwelcome entry) into the Unit and to perform work contrary to the express directions of the Health Service.
223 Dr Downe, in that regard, behaved reasonably and appropriately. She and/or her representatives sought initially to resolve the matter by agreement and, when that agreement was not forthcoming, instituted proceedings in this Court, in the Federal Court of Australia and in the Industrial Relations Commission of New South Wales. It is sufficient, for present purposes, to note that no new facts, other than the finalisation of the Reynolds Report and the Peterson Report, were relied upon for the continuing "suspension". Certainly no further allegations or disciplinary issues were raised.
224 The Reynolds Report has some relevance. First, other than an initial meeting for the purpose of supplying documentation, Professor Reynolds did not meet with Dr Downe. Second, the Report makes clear that the Unit was, as measured by objective standards of morbidity rates etc, performing at least satisfactorily. Thirdly, the Report noted some unique and positive practices relating to peer review and the "standardisation" of nursing notes at handover by the use of a detailed stamp that required completion. While making some negative comments about the chair and agenda at the peer review (presumably directed at Dr Downe), Professor Reynolds suggested that the Unit be congratulated on the development. Lastly, it made some negative comments on the personal issues and leadership style at the Unit.
225 The Reynolds Report was delivered on 20 December 2004. By that time Dr Downe had not worked at the Unit for almost 6 months. It is not clear whether all of such comments were confined to the period during Dr Downe's work. If they were, the Report arrived at those conclusions without the benefit of Dr Downe's views and without according her procedural fairness. There had never been a disciplinary process relating to these matters raised with Dr Downe either in accordance with the Health Service's policy or at all. Nor were these issues raised with her after the event.
226 On the facts, Dr Downe did not acquiesce in the continued suspension. Nor did she agree that the Health Service had the capacity or right to suspend her from duties. Further, she continued to maintain that, if there were such a right, it was inappropriate that it be exercised. I will deal with these issues more fully later in this judgment.
(H) Section 51AA of the Trade Practices Act: Jurisdiction
227 Dr Downe raised, as a cause of action originally commenced in the Federal Court of Australia, a contravention of s 51AA of the Trade Practices Act. The relevant terms of s 51AA of the Trade Practices Act are:
"(1) A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.
228 As earlier recited, under the cross-vesting provisions, the matter is now before this Court and to be dealt with in these proceedings. The defendants submit that the conduct of the Health Service in suspending Dr Downe, or otherwise in its treatment of Dr Downe, is not conduct in trade or commerce.
229 In the context of the application of s 52 of the Trade Practices Act (misleading or deceptive conduct), the High Court of Australia had occasion to consider whether employment is within the description "in trade or commerce": see Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594. At pages 603 to 604 the High Court (per Mason CJ, Deane, Dawson and Gaudron JJ) said:
"[7] 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 [1948] HCA 7; (1948) 76 CLR 1, at p 381, 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.