Midland Metals Overseas PTE Limited v Australian Cablemakers Association Limited

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, a Singapore-based manufacturer of electrical cables, sued the first respondent, an industry representative association for electrical cable manufacturers, for conduct that was allegedly misleading or deceptive in contravention of s 18 of the Australian Consumer Law which is contained in Sch 2 to the Competition and Consumer Act 2010 (Cth). The conduct comprised sending letters, in identical terms, to the relevant Ministers in all States and Territories responsible for electrical safety, stating that the applicant's cable had failed a series of tests and was unsafe. The primary judge found that the appellant's claim failed because the conduct was not misleading or deceptive, nor was it likely to mislead or deceive, as no Minister who received such a letter would take any action on it without first seeking expert advice to verify the claims made in the letter. The appellant appealed in relation to four issues:

1. grounds 1-9 and 15 - the tendency of the conduct to lead the recipients of the letters into error;
2. ground 10 - the failure by the primary judge to give any, or any adequate, reasons in rejecting the appellant's claim that the respondents had alleged that the cable offered for sale by the first respondent's members complied with the heat radiation test and that the claim was misleading or deceptive;
3. ground 11 - the failure by the primary judge to determine which of the thirteen pleaded representations had been made and which had not; and
4. grounds 12, 13 and 14 - that the primary judge uncritically accepted the evidence of Mr Mennie, and that the primary judge was wrong to find the statements in the letters were statements of opinion rather than statements of fact. The first respondent relied on a notice of contention, which sought to uphold the decision of the primary judge on the basis that the relevant conduct was not in trade or commerce. The Court per Payne JA, Gleeson JA and Sackville AJA agreeing, dismissing the appeal, held: In relation to Grounds 1-9 and 15: The finding of the primary judge that, viewed prospectively, the Ministers who received the letters would not act on the assertions in the letters but would cause experts to investigate the matters raised by the letters and form their own view based on that advice was correct: [38]. Viewed prospectively, the contents of the letters did not have a tendency to lead the recipient into error, but were likely to do no more than induce a Minister to believe that an industry body had made claims that should be investigated: [47]. Australian Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 applied. In relation to Ground 10: No relief was sought in this Court about any alleged representation that the cable offered for sale by the first respondent's members complied with the heat radiation test. It was an irrelevant issue: [54]. In relation to Ground 11: The case ultimately advanced by the appellant did not seek relief based on all 13 representations but was confined to a much smaller number of identified representations. In these circumstances, there was no error in the primary judge not considering each of the 13 representations originally pleaded by the appellant: [57]-[58]. In relation to Grounds 12, 13 and 14: Regarding ground 12, there was no error in the primary judge finding that the secretary of the first respondent believed the contents of the letters to be true. He was not cross-examined on his belief to suggest otherwise: [62]. Regarding grounds 13 and 14, the primary judge's observation that the letters contained statements of opinion rather than fact was is irrelevant given the dispositive findings made by the primary judge: [63]. The Court per Payne JA, Gleeson JA and Sackville AJA agreeing, upholding the first respondent's notice of contention (obiter): In the very limited and specific facts of this case the conduct complained of was not shown to be conduct in trade or commerce for the following reasons: (1) the recipient Ministers were responsible for safety and not for cable purchasing decisions, and the letters were sent only to those Ministers rather than cable purchasing entities or the public at large; (2) the first respondent sent the letters because of a genuinely held concern about the safety of the appellant's cable and not to secure any commercial advantage; and (3) the letters were sent in the discharge of the first respondent's safety and compliance functions, which do not bear any trading or commercial character: [72]. Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594; [1990] HCA 17; Village Building Company Pty Ltd v Canberra Airport Pty Ltd (2004) 139 FCR 330; [2004] FCAFC 240 applied. Tobacco Institute of Australia v Australian Federation of Consumer Organisations (1992) 38 FCR 1 distinguished. In relation to relief: Even if the appellant were entitled to succeed, neither a declaration nor injunctive relief were justified. In relation to an injunction, (1) the conduct occurred three years ago, (2) the contents of the letters have not been republished, and (3) the first respondent has no intention of republishing the contents of the letters: [78]. ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 applied. In relation to a declaration, the first respondent has not, for some years, pressed the concerns in those letters. Comprehensive expert reports are available to all relevant decision makers about the safety issues originally raised by the first respondent. The second respondent is no longer Chairman of the first respondent. A declaration would produce no foreseeable consequences: [80]-[81] Truth About Motorways Pty Ltd v Macquarie Investment Infrastructure Management Ltd (2000) 200 CLR 591; [2000] HCA 11 applied.

Judgment

1. GLEESON JA: I agree with Payne JA. I would add the following brief comments by way of emphasis.
2. It is fundamental that a party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35; Coulton v Holcombe (1986) 162 CLR 1 at 7-9; [1986] HCA 33.
3. That principle applies in the present case insofar as the appellant failed at trial on a misleading and deceptive conduct claim framed on a particular basis and sought to sidestep that result by reframing its case on appeal and alleging misleading and deceptive conduct on a wider and different basis which could possibly have been met by the respondents calling evidence at the trial.
4. Next, there is a wider principle that even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action: Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [51] referring with approval to MultiCon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631 at 645-6; [1997] NSWCA 214.
5. Applied to the present case, the appellant elected to advance a case at trial based on concessions by the respondents as to certain errors in letters sent by the first respondent to Commonwealth and State Ministers responsible for safety regulation. The appellant cannot be heard to complain on appeal that the primary judge did not address parts of the pleaded case that were not pressed at trial, let alone were not the subject of relief sought at trial, nor on appeal.
6. Finally, it is to be acknowledged that the remarks of Payne JA, with which I agree, on the question of whether the relevant conduct by the first respondent was in trade and commerce, are obiter. The remarks should not be taken out of context; they reflect the particular factual circumstances of the present case.
7. PAYNE JA: In these proceedings the appellant, a Singapore-based manufacturer of electrical cables, sued the first respondent, an industry representative association for certain Australian-based electrical cable manufacturers, for conduct which was allegedly misleading or deceptive.
8. The case brought by the appellant was a narrow one. As framed at trial, it relied on conduct solely comprised of the sending of letters in identical terms by the first respondent (and signed by the second respondent who was then the Chairman of the company) to the Ministers in each State and Territory responsible for the safety of electrical cables. Declarations and injunctive relief, but not damages, were sought.
9. The primary judge, McDougall J, dismissed the appellant's claim on the basis that it had not established that the conduct of the respondents had a tendency to lead any of the Ministers responsible for safety regulation into error. The primary judge found it unnecessary to decide whether sending a letter raising a safety issue about one type of electrical cable to the Minister responsible for regulation of the safety of electrical cables was, of itself, conduct in trade or commerce.
10. At the heart of the appellant's case below was the allegation that the Ministers who received the letters were responsible for decisions about purchasing electrical cables by certain electrical distribution entities, many of which were at the time State-owned. That case was correctly rejected by the primary judge on the facts. Although the premise of that case, ministerial responsibility for electrical cable purchasing decisions, was the subject of the appellant's written submissions, the case ultimately presented in this Court sought to move away from that case and address a case which was not agitated below. Further, a number of the issues raised by the appellant were not the subject of relief sought by the appellant at the trial nor were they issues identified in the notice of appeal.
11. For the reasons that follow the appeal should be dismissed with costs.

Relevant facts

1. The appellant, Midland Metals Overseas PTE Limited, is a company incorporated in Singapore that sold, and continues to sell, electrical cable and related products to electricity distributors in Australia. The first respondent is an unlisted not-for-profit public company limited by guarantee, incorporated in Australia. Its stated objects include representing its members, who are Australian-based electrical cable manufacturers, and enforcing and upholding electrical cable safety standards.
2. On 10 February 2016, at a board meeting of the first respondent, it was resolved that the laboratory testing results obtained by one of the first respondent's member companies in relation to one of the appellant's cables, the LOBAC 95mm² aerial bundled cable, raised safety concerns which should be communicated to the relevant safety regulators.
3. On 28 April 2016, the first respondent sent a letter in identical terms to each of the Ministers of the States and Territories responsible for electrical safety regulation. The letter was signed by the first respondent's Chairman, the second respondent. The letter was in the following terms: "I write to advise that Australian Cablemakers Association (ACA) member testing has identified another example of electrical cable currently used in Australia that has failed to meet Australian and NZ Standards and is unsafe. Specifically, the ACA's concerns relate to the heat radiation resistance properties of Midlands LOBAC 95mm² brand of aerial bundled cable used to supply low voltage electricity to customers in Western Australia, South Australia, New South Wales and Victoria. As you would be aware, a range of aerial cables with insulated conductors were designed and incorporated within Australian and NZ Standards (AS/NZS 3560.1) following concerns that bush fires, most notably the 1983 Ash Wednesday fires, were started by arcing as a result of open wire lines clashing together and trees falling across open conductors causing arcing that ignited fires. A further enhancement of the Standard was subsequently incorporated to assess a cable's survivability during a fast-paced fire front. An ACA member tested the heat radiation performance of a sample of Midlands LOBAC 95mm² cable against AS/NZs [sic] 3560.1 (as per the detailed test method and apparatus described in Appendix F of the Standard included as Attachment 2). The Midland Cable LOBAC 95mm² demonstrated a failure to achieve the Standard. During the test, the cable was not only found to fail but also dripped molten polymer from the cable potentially adding to the burning fuel in a bushfire situation. This testing was conducted on equipment designed and built by the ACA member as no suitable testing apparatus existed to test Heat Radiation Resistance. While we have full confidence in the veracity of the apparatus and subsequent test results, the apparatus was not covered by the Member's NATA registration. The results of the Midland Cable Heat Radiation Test are included in Attachment 1. ACA is committed to ensuring safety of all electrical cable used in Australia. It was through laboratory testing undertaken by ACA members that identified faulty cable and prompted two recent major recalls - Infinity cables in 2013 and ECABLES in 2014. We urge, as a matter of priority, further investigation to ensure the compliance to AS/NZS 3560.1 of Midland Cable LOBAC 95mm². We would be pleased to provide more information about the methodology and apparatus used in the test and welcome the opportunity to discuss this with you. [Contact details omitted]. We look forward to your prompt attention to this important safety issue."
4. On 12 May 2016, the Electrical Regulatory Authorities Council (ERAC) met and formed the view that there was no safety issue with the appellant's LOBAC 95mm² aerial bundled cable and that the credibility of the test results described in the letter was questionable. Before the primary judge, the first respondent accepted that three components of the 28 April letter, taken in isolation, were not accurate or were not supported by expert analysis: 1. the implication that compliance with the heat radiation test is mandatory; 2. the suggestion that the testing conducted was compliant with the relevant Australian standard; and 3. the suggestion that dripping molten polymer in a bushfire made the cable unsafe as the impact on a bushfire of any molten polymer would be insignificant.

The primary judgment

1. On 21 June 2018, McDougall J delivered his judgment: Midland Metals Overseas v Australian Cablemakers Association [2018] NSWSC 938. The parties had agreed that the following issues arose in the proceedings: "(a) Whether the defendants made each of the representations as alleged by the plaintiff. (b) Whether in making the representations as alleged the defendants engaged in conduct in trade or commerce. (c) Whether in making each of the representations as alleged the defendants engaged in conduct that is misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL. (d) The appropriate relief. (e) Whether [the second respondent] is personally liable for any contravention of s 18 that has occurred."
2. The primary judge found that, as the appellant failed in respect of issue (c), it was unnecessary to resolve any of the other issues.
3. The appellant had sought declarations that the first and second respondents, in sending the letters to the Ministers, engaged in conduct in trade or commerce that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18 of the Australian Consumer Law ("ACL") - Sch 2 of the Competition and Consumer Act 2010 (Cth). Section 18 provides, relevantly: "18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1). …"
4. The primary judge found that the appellant's claim failed because the conduct was not misleading or deceptive, nor was it likely to mislead or deceive. For conduct to be characterised as misleading or deceptive, or likely to mislead or deceive, it must have a tendency to lead into error. There must be some sufficient causal link between the identified conduct and the likelihood of error on the part of the person to whom it is directed.
5. The primary judge noted that whether conduct is to be characterised as misleading or deceptive is a question of fact, which analysis involves the examination of the conduct as a whole "by reference to the alleged conduct in the light of the relevant surrounding facts and circumstances … [and] … is an objective question that the court must determine for itself": Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 at [109] per McHugh J, cited with approval in Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [102] by Gummow, Hayne, Heydon and Kiefel JJ.
6. The letters were sent only to the Ministers responsible for electrical safety in each State and Territory. The primary judge found that "it is clear (and common ground on the pleadings) that each Minister to whom the letter and its attachments were sent had ministerial responsibility for the electrical safety regulator in his or her State. There is no evidence that any of those Ministers had any responsibility, ministerial or otherwise, for purchasing decisions made by electricity distribution utilities".
7. The significance of this last finding was that the case conducted by the appellant sought to characterise the respondents' conduct as misleading or deceptive or likely to mislead or deceive on the basis that the Ministers who were the recipients of the letters also had responsibility for purchasing decisions made by electricity distribution utilities. That is, that the conduct in sending the letters had the capacity to lead the Minister into error in that it may engender a false belief about the safety of the appellant's LOBAC 95mm² aerial bundled cable, causing a delay in purchasing decisions about that cable whilst the safety issue was investigated.
8. The primary judge posed the relevant question as being the capacity of the relevant conduct to lead the person to whom it was directed into error. This was a test accepted by both parties. The primary judge found that, viewed prospectively, it was "unlikely to the point of inconceivability" that any Minister would have acted upon the letter without first taking advice. His Honour observed that this was, in fact, what ultimately occurred. It was also likely, viewed prospectively, that when the Minister referred the letter for advice, the departmental official charged with the reference would consult the electrical safety regulator for that State. Again, his Honour observed, that was in fact what occurred.
9. The primary judge found that, even if the letter had made all the representations that the appellant said that it did, and even if all the representations were incorrect, it was unlikely that the letter by itself could have led a Minister into error.

The notice of appeal and notice of contention

1. The notice of appeal contained 15 grounds and numerous sub-grounds. A number of the grounds did not reflect the way that the case was argued below and should be rejected for that reason alone. The notice of appeal set out the grounds as follows: "1 His Honour erred in finding that the conduct of the first respondent and the second respondent in sending letters dated 28 April 2016 and accompanying Test Reports ("28 April letters") to Ministers for the States and Territories of Australia did not constitute conduct that was misleading or deceptive, or likely to mislead or deceive in contravention of s18 of the Australian Consumer Law. Schedule 2 of the Competition and Consumer Act 2010 (Cth). 2 His Honour should have found that the conduct of the first respondent and the second respondent in sending the 28 April letters to the recipient Ministers constituted conduct that was misleading or deceptive, or likely to mislead or deceive in contravention of the section 3 His Honour erred in finding that because the recipient Ministers had expert advice available to them: 3.1 they would not form any conclusion on the 28 April letters until they received that advice; and 3.2 that "projection" is what happened in each case, and for those reasons the 28 April letters did not have a tendency to lead the recipient Ministers into error. 4 His Honour should have found that the 28 April letters had a tendency to create in the recipient Ministers, and others who read or heard of them, an erroneous impression that the appellant's electrical cable: 4.1 failed to comply with the relevant Australian and New Zealand Standard; and 4.2 was unsafe and created a bushfire hazard, and the 28 April letters were misleading or deceptive, or likely to mislead or deceive, for those reasons. 5 His Honour should have found that the 28 April letters had a tendency to: 5.1 cause Ministers and their departments and others who read or heard of them, to devote potentially significant, time consuming and expensive resources to the expert examination of the claim made in the 28 April letters, under the erroneous impressions that the content of the 28 April letters required immediate attention and that the appellant's electrical cable required expert examination and testing; 5.2 erroneously induce government departmental concerns, and concerns by others, about the appellant and its products, at least for the indeterminate period in which the "testing" suggested in the 28 April letters might take place; and was thus likely to erroneously induce a reticence, in entering into any fresh commercial negotiations with the appellant for, or in acquiring electrical cable from the appellant during, the time that it might take for the erroneous impressions to be dispelled; 5.3 cause the recipient Ministers and their departments and others who read or heard of the 28 April letters to conclude that those letters raised serious safety concerns justifying the seeking of expert advice; and 5.4 induce an erroneous belief by those who read the 28 April letters or heard of them, that the first respondent's members' cable should reasonably be preferred to the appellant's imported cable in future negotiations, and the 28 April letters were misleading or deceptive or likely to mislead or deceive for those reasons. 6 His Honour should have found that the 28 April letters: 6.1 erroneously induced a tendency in those who read or heard of them, to suppose that the cable produced by the first respondent's own members would comply with the relevant Heat Radiation Test, despite the first and second respondents' knowledge that the first respondent's members did not, and could not, produce cable which complied with what the 28 April letters asserted were the significant requirements "mandated" by the Heat Radiation Test; and 6.2 embodied an overall tendency to induce in those who read or heard of the 28 April letters, the erroneous belief that the first respondent was and would be likely to remain, a reputable, responsible, truthful, objective, disinterested and credible organization, with which Ministers of the Crown and others might confidently deal on an ongoing basis, when it was not, and the 28 April letters were misleading or deceptive or likely to mislead or deceive for those reasons. 7 His Honour should have found that: 7.1 the recipient Minister in the State of New South Wales forwarded the Test Report to all network operators in New South Wales without seeking advice; and 7.2 the recipient Minister in the Australian Capital Territory referred the 28 April letter to the Electrical Authorities Council which forwarded it to the relevant electrical distributors. 8.1 In purporting to determine the first aspect referred to in his Honour's judgment at [5(c)] his Honour erred by failing to consider and determine the quality of each of the representations and in particular the twelfth representation. 8.2 His Honour erred in disregarding wholly the second aspect of the third issue in [5(c)]; that is whether each of the representations was conduct that was likely to mislead or deceive. 9 His Honour erred in failing to determine whether the making of each of the representations alleged constituted conduct in contravention of s18 of the Australian Consumer Law, and in particular the twelfth pleaded representation, when thirteen such representations were alleged. 10 His Honour failed to give any, or any adequate, reasons in respect of the pleaded twelfth representation contained in the 28 April letters, that is that the first and second respondents represented that in their opinions, based on reasonable grounds, the cable offered for sale by the first respondent's members complied with the Heat Radiation Test. 11 His Honour erred, at [37] of his Honour's judgment, in failing to determine which of the thirteen pleaded representations had been made and which had not. 12 His Honour erred, at [45] of his Honour's judgment, in finding that Mr Mennie believed the representations made in the 28 April letters to be true. 13 His Honour should have found that: 13.1 the pleaded misleading or deceptive representations were representations of fact; or, in the alternative 13.2 were representations of opinion not based on reasonable grounds, and could not have been reasonably held by the first respondent or the second respondent. 14 His Honour erred in finding that all of the pleaded misleading or deceptive representations were representations of opinion. 15 His Honour erred in failing to identify and apply the principles set out by the High Court of Australia in Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 ("TPG") and in particular: 15.1 that conduct is misleading or deceptive if it has a "tendency" to lead into error; and 15.2 failed to apply the principles referred to at [47] - [51] of that judgment."
2. The first respondent relied on a notice of contention which sought to uphold the decision of the primary judge on the basis that the relevant conduct was not in trade or commerce.

Consideration

1. Despite the prolixity of the notice of appeal, senior counsel for the appellant, Mr Coles QC, accepted at the hearing of the appeal that the issues could be considered under essentially four headings: 1. grounds 1-9 and 15 - the tendency of the conduct to lead the recipients of the letters into error; 2. ground 10 - the failure by the primary judge to give any, or any adequate, reasons in rejecting the appellant's claim that the respondents had alleged that the cable offered for sale by the first respondent's members complied with the heat radiation test and that the claim was misleading or deceptive; 3. ground 11 - the failure by the primary judge to determine which of the thirteen pleaded representations had been made and which had not; and 4. grounds 12, 13 and 14 - that the primary judge uncritically accepted the evidence of Mr Mennie, and that the primary judge was wrong to find the statements in the letters were statements of opinion rather than statements of fact.
2. It is convenient to address the grounds of appeal in this order.

Grounds 1 - 9 and 15 - the tendency of the conduct to lead the recipients of the letters into error

Appellant's submissions

1. The appellant submitted that his Honour: 1. was wrong to conclude that, because the Ministers had expert advice available to them, they would not form any conclusion upon receipt of the 28 April letters; 2. was wrong to conclude that, because the Ministers took further advice, they had come to no conclusions on the subject matter of the 28 April letters before they received that advice; and 3. should have found that the conduct of the first respondent was misleading or deceptive in that the letters were liable to create in the recipient Ministers an impression that there was a risk, requiring further investigation, that all Midland cable failed to comply with the relevant standard and for that reason was unsafe and a bushfire risk and should not be used while that further investigation was carried out.
2. The appellant submitted that the question of whether conduct viewed as a whole has a tendency to lead a person into error is an anterior question to whether or not any loss has been suffered as a result of that conduct: Australian Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 at [49] (French CJ, Crennan, Bell and Keane JJ). The appellant submitted that the expectation that consumer recipients of information might be anticipated to obtain a clear understanding of the true state of affairs before acting to their detriment conflates the question of actual loss with the question of characterisation of the tendency of the impugned conduct to lead a person into error. The appellant submitted that the primary judge erred in failing to recognise and apply that distinction.
3. The appellant submitted that the primary judge assumed that the letters could produce no other tendency than that of inviting Ministers to take advice. The appellant submitted that, contrary to this assumption, the letters had a tendency to: 1. cause Ministers to devote time and resources to expert examination of the claims made in the letters under the erroneous impression that the content of the letters required immediate attention and raised serious safety concerns; 2. erroneously induce concerns on the part of government departments about the appellant and its products (and erroneously induce a reticence to enter into commercial negotiations with the appellant, at least for the time taken to dispel erroneous impressions); 3. induce an erroneous belief that the first respondent's members' cable should be preferred to the appellant's imported cable; 4. induce an erroneous supposition that the cable produced by the first respondent's members would comply with the relevant heat radiation test; and 5. induce the erroneous belief that the first respondent was a reliable, responsible and objective organisation on which Ministers could rely.
4. The appellant submitted that, where conduct is directed to particular persons, attention must be directed to the relationship between those people and the entity propagating the conduct, the context in which the statement was made, and the matters of fact which each knew about the other: Butcher v Lachlan Elder Realty Pty Ltd at [37] (Gleeson CJ). The appellant submitted that, having regard to the prior dealings between the first respondent and the relevant Ministers, it can be inferred that the Ministers treated the letters as authoritative statements of the matters contained in them.

Consideration

1. In Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199; [1982] HCA 44, Gibbs CJ said that: " … [t]he heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests.'
2. In Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31, French CJ and Kiefel J held that s 52 of the Trade Practices Act 1974 (Cth) (TPA) (and now s 18 of the ACL): "[22] … does not impose on a party an obligation to volunteer information in order to avoid the consequences of the careless disregard, for its own interests, of another party of equal bargaining power and competence.'
3. In TPG Internet, French CJ, Crennan, Bell and Keane JJ explained these observations and said: "[39] Whether speaking of representations to the public at large or in negotiations between parties of equal bargaining power and competence, the quoted observations in Puxu and Miller go to the characterisation of conduct as misleading or deceptive. Conduct is misleading or deceptive, or likely to mislead or deceive, if it has a tendency to lead into error. That is to say there must be a sufficient causal link between the conduct and error on the part of persons exposed to it. It is in that sense that it can be said that the prohibitions in ss 52 and 18 were not enacted for the benefit of people who failed to take reasonable care of their own interests." (Footnotes omitted.)
4. In Campbell v Backoffice Investments Pty Ltd, French CJ said: "[25] Characterisation is a task that generally requires consideration of whether the impugned conduct viewed as a whole has a tendency to lead a person into error. It may be undertaken by reference to the public or a relevant section of the public. In cases of misleading or deceptive conduct analogous to passing off and involving reputational issues, the relevant section of the public may be defined, according to the nature of the conduct, by geographical distribution, age or some other common attribute or interest. On the other hand, characterisation may be undertaken in the context of commercial negotiations between individuals. In either case it involves consideration of a notional cause and effect relationship between the conduct and the state of mind of the relevant person or class of persons. The test is necessarily objective." (Footnotes omitted.)
5. The primary judge appreciated and applied the distinction between conduct which has a tendency to lead into error and the actual loss based on that conduct. The appellant's principal complaint has no substance. The primary judge stated the test he was applying in terms drawn from TPG Internet, which the appellant accepted as the correct approach. There is no passage or finding in the judgment of the primary judge that obscures the distinction between conduct which has a tendency to lead into error and the actual loss based on that conduct. The distinction was never pressed on the primary judge by the appellant below as being relevant here. It is thus unsurprising that his Honour did not refer to any submission made by the appellant about the topic.
6. The evidence supports the finding of the primary judge that, viewed prospectively, the Ministers who received the letters would not act on the assertions in the letters but would cause experts to investigate the matters raised by the letters and form their own view based on that advice. There was no finding by the primary judge that the recipient Ministers even read the letter. That is not a promising foundation for a case which was expressly limited to errors that the letters were capable of inducing in the minds of the relevant Ministers.
7. The appellant encouraged the primary judge to have regard to the prior dealings between the first respondent and the relevant Ministers about safety matters. That submission was repeated on the appeal: see [32] above. If regard is paid to such limited evidence as there was about those prior dealings, concerning Infinity cables in 2013 and ECABLES in 2014, [1] the finding of the primary judge that the letters would cause Ministers to ask experts to investigate the matters raised by the letters and form their own view based on advice received from those experts was correct.
8. The case advanced by the appellant before the primary judge was encapsulated in its written submission: "The 28 April communications were directed to Government ministers throughout the country with responsibility for overseeing the acquisition from time to time of substantial quantities of electrical cable products". That case was rejected by the primary judge on the facts. The appellant did not demonstrate that his Honour erred in so finding.
9. If it matters, the primary judge was correct to observe that in each case, the Ministers who received the 28 April letter sought advice. The evidence was that ERAC met on 12 May 2016, shortly after the letters were sent, and formed the view that there was no safety issue and that the credibility of the test results described in the letters was questionable. ERAC's conclusions were available to all Ministers.
10. The appellant's complaint, made in writing and repeated orally in this Court, that the primary judge overlooked the tendency of the letters to lead into error because of concerns which were likely to arise in the minds of "others who read or heard" of the letters, is outside the pleaded case and was not a submission put to the primary judge. The case pleaded was not that any third party acted or was likely to act on the contents of the letters. The conduct identified by the appellant was limited to the making of the representations allegedly contained in the letters sent to Ministers. That case was that the Ministers would cause the cable purchasing entities in each State to halt the purchase of the appellant's cables whilst an investigation was conducted. That case was rejected by the primary judge. The primary judge correctly rejected the contention that the recipient Ministers had any responsibility or influence over electricity distributors' purchasing decisions. The appellant cannot now reframe its case by reference to the likely conduct of third parties whose conduct was not in issue below: Metwally v University of Wollongong (No 2) [1985] HCA 28; 59 ALJR 481 at 483. I accept, as Mr Izzo SC who appeared for the respondents submitted, that if this issue had been raised before the primary judge he could and would have led evidence about the characteristics of potential purchasers of the appellant's LOBAC 95mm² aerial bundled cable.
11. Nor was it put by the appellant below, as the appellant submitted in this appeal, that the letters could lead persons into error simply by causing Ministers needlessly to spend time and public money investigating the matters raised by the respondents in the letters. After the submission was advanced in this Court the appellant was asked: "SACKVILLE AJA: Mr Coles, the reason I'm asking this is that there may be a distinction between two situations. The first is where the contents of a letter are likely to do no more than induce a minister to believe that an industry body has made claims that may or may not be accurate, that should be investigated. Situation one. Situation two, a letter has made claims that will be likely to induce the minister to believe that the claims have more substance, such substance as to warrant further investigation. As I understand it you're putting proposition two?"
12. The appellant was granted leave to file a note after the oral hearing to identify where it was said that this second contention was actually put to the primary judge. The two passages identified by the appellant in the written note dated 1 April 2019 do not identify such a case. The first passage identified by the appellant is addressing reasons in support of Mr Coles' colourful proposition that "the plain object of this exercise is 'don't you deal with these people until you have had an investigation'". That is, the letters could lead recipient Ministers into error in that he or she may cause an electrical distributor to delay purchase of the appellant's LOBAC 95mm² aerial bundled cable pending an investigation. That is consistent with the case advanced by the appellant that the recipient Ministers had responsibility for or influence over electricity distributors' purchasing decisions. It is quite a different submission to the one sought to be advanced in this Court. The second passage relied upon makes a different point. After summarising, and reframing, the respondents' argument at some length, Mr Coles in that passage tested the respondents' argument by reference to evidence given by various officers of the first respondent about their present belief about the safety of the appellant's LOBAC 95mm² aerial bundled cable. The appellant did not suggest in those passages that the letters could lead recipients into error simply by causing Ministers needlessly to spend time and public money investigating the matters raised by the respondents in the letters.
13. The second situation referred to in paragraph [43] was not a submission made to the primary judge. The appellant should not be permitted to reframe its case in this Court in this way. In Coulton v Holcombe at 7, Gibbs CJ, Wilson, Brennan and Dawson JJ stated: "To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish."
14. The fact that the case was not put below in the way now sought to be advanced on appeal is why the "tendencies" now advanced by the appellant (set out at [31]) were not specifically addressed by the primary judge.
15. Viewed prospectively, the contents of the letter were likely to do no more than induce a Minister to believe that an industry body had made claims that may or may not be accurate, and which should be investigated. In the narrow way the case was framed and argued before the primary judge, his Honour was correct to find that the letters "could produce no other tendency than that of inviting the Ministers to take advice".
16. Grounds 1-9 and 15 should be dismissed.

Ground 10 - Failure to give reasons regarding pleaded representation 12

Appellant's submissions

1. The appellant submitted that the primary judge failed to give any, or any adequate, reasons addressed to whether the respondents represented that the cable offered for sale by the first respondent's members complied with the heat radiation test (AS/NZS 3560.1).
2. The appellant submitted that the primary judge had impermissibly speculated that the second respondent generally held the opinion that this representation was correct. The appellant submitted that the second respondent gave no evidence justifying the primary judge's conclusion, and was aware that compliance with the heat radiation test was not mandatory for electrical cable.

Consideration

1. There was no occasion for his Honour to make any finding about pleaded representation 12. This is because in the course of the trial the appellant made it clear that it sought no relief about the alleged representation that "the cable offered for sale by the first respondent's members complied with the heat radiation test (AS/NZS 3560.1)". Perhaps by reason of the concessions made by the first respondent about the content of the letter set out at [15] above, most of the pleaded representations were not pressed by the appellant as part of the relief it sought. During the trial senior counsel for the appellant handed up an amended form of declaratory relief sought by the appellant which tracked closely the concessions made by the first respondent recorded at [15] above: "… that by letters dated 28 April 2016 ("the letters") from the Australian Cablemakers Association ("ACA") and signed by Frederick Persson ("Persson"), the ACA and Persson each engaged in conduct which was misleading or deceptive, or likely to mislead or deceive, in contravention of s.18 of the Australian Consumer Law, by representing that LOBAC 95 mm2 cable sold by Midland Metals Overseas Pte Limited, the subject to the letters: (a) failed to comply with the heat radiation test in Appendix F of Australia/New Zealand Standard 3560.1:2000 ("Standard"); (b) was unsafe; (c) should not be used without further investigation to ensure compliance with the Standard; and (d) contributed to the risk of a bushfire."
2. The appellant's case was limited to declaratory relief about representations made about the appellant's LOBAC 95 mm2 cable. No relief was sought about any alleged representation that the cable offered for sale by the first respondent's members complied with the heat radiation test. That issue was not relevant to the issues his Honour was asked to decide.
3. The matter was equally irrelevant to the issues on the appeal. The appellant sought in this Court the following declaration (and only this declaration): "Order 1 made on 21 June 2018 by McDougall J be set aside and in lieu thereof the Court declares that by letters dated 28 April 2016 ("the letters") from the Australian Cablemakers Association Limited ("ACA") and signed by Frederick Persson ("Persson"), the ACA and Persson each engaged in conduct which was misleading or deceptive, or likely to mislead or deceive, in contravention of s18 of the Australian Consumer Law, by representing that LOBAC 95MM2 cable sold by Midland Metals Overseas Pte Limited, the subject to the letters: (a) failed to comply with the heat radiation test in Appendix F of Australia/New Zealand Standard 3560.1:2000; (b) was unsafe; and/or (c) should not be used."
4. No relief was sought in this Court about any alleged representation that the cable offered for sale by the first respondent's members complied with the heat radiation test. It was an irrelevant issue. Although nothing was said in chief about this issue, the topic of pleaded representation 12 was raised in reply by Mr Coles and the following exchange ensued: "PAYNE JA: But it's still not there in the notice of appeal in terms of the relief you seek. COLES: No. I've got to live with that. We are not inflexible, nor are we arid or insensitive to the justice of the case…."
5. There is nothing arid or insensitive to the justice of this case in ensuring that the issues litigated on appeal are, at least in a broad sense, relevant to the relief sought by an appellant in a notice of appeal. Ground 10 should be dismissed.

Ground 11 - Failure to determine which of the pleaded representations were made and which were not

Appellant's submissions

1. The appellant submitted that the primary judge failed to determine which of the 13 pleaded representations had been made and which had not.

Consideration

1. There was no error in his Honour not considering separately each of the 13 representations pleaded by the appellant.
2. As already explained, the case as it was ultimately put by the appellant did not seek relief based on all 13 representations but rather was confined in the manner recorded at [38] of the judgment below which I have set out at [51]. In this Court no relief based on 13 representations was sought: see [53] above. Perhaps for that reason nothing was said orally about this matter.
3. Ground 11 should be dismissed.

Grounds 12, 13 and 14 - Error in finding that the pleaded representations were believed to be true and were matters of opinion

Appellant's submissions

1. The appellant submitted that the primary judge erred in uncritically accepting the evidence of Mr Mennie, the secretary of the first respondent at the relevant time, namely that he believed the representations in the letter to be true at the time the letters were sent. The appellant submitted that Mr Mennie's evidence was completely inconsistent with the Energysafe Investigation Report, and also with the evidence of the second respondent that he was aware that the first respondent's members' cable did not comply with the heat radiation test. This was ground 12.
2. The appellant submitted that the primary judge was wrong to find the statements in the letters were statements of opinion rather than statements of fact and opinion if his Honour relied on this distinction to come to the conclusion that the letters were not misleading or deceptive. This constituted grounds 13 and 14.

Consideration

1. There was no error in the primary judge finding that Mr Mennie believed the contents of the letters to be true. Although Mr Mennie was cross-examined, his evidence as to his belief was not challenged in cross-examination. The fact that the opinions in the letters were not supported by the test results and were inconsistent with other evidence does not mean that, without putting those test results and other evidence to him, Mr Mennie's evidence about the content of his beliefs should be rejected. The ground of appeal in any event does not address the primary judge's dispositive reasoning. This finding about Mr Mennie's belief was not part of the ratio of the primary judge's decision and did not affect any matter of substance in his Honour's judgment.
2. Grounds 13 and 14 are also irrelevant to any dispositive issue. The primary judge's observation that the letters contained statements of opinion rather than fact is beside the point, in light of the primary judge's dispositive reasoning that no Minister was likely to be led into error by the contents of the letters. That dispositive finding was based on the explicit assumption at [54] of the judgment below that the letter contained all of the representations that the appellant said it did.
3. Grounds 12, 13 and 14 should be dismissed.

The conduct was not in trade or commerce

1. Given his Honour's conclusions about the issue just addressed, the primary judge did not find it necessary to determine if the relevant conduct was in trade or commerce. This issue was agitated on appeal by the respondents' notice of contention. Given that the issue was fully argued, this Court should address it: Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
2. As already observed, the appellant's case below was a very limited one. The appellant submitted below that making the representations in the 28 April letters was conduct in trade or commerce since those letters were directed to Ministers "with responsibility for overseeing the acquisition of substantial quantities of electrical cable products", and since the first respondent was a representative body one of whose functions was to "support and grow" the commercial interests of its members.
3. As earlier observed, the primary judge correctly rejected the critical underpinning of that submission; no recipient Minister had any responsibility for electrical cable purchasing decisions. On the appeal, Mr Coles accepted that the appellant's case about trade and commerce was encapsulated in two paragraphs of his written submissions. The first paragraph asserted that the letter was seeking to denigrate the appellant's cable and encourage the purchase of cables produced by the first respondent's members. The second paragraph asserted that the letter was comprised of "promotional material".
4. In Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 at 603; [1990] HCA 17, Mason CJ, Deane, Dawson and Gaudron JJ said of s 52, the statutory predecessor to s 18 of Schedule 2 that the phrase "in trade or commerce" refers 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, "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". At 604 their Honours said: "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."
5. Conduct by a corporation which does not otherwise bear a trading or commercial character is not brought within s 18 simply because it may be thought in some way to benefit the corporation's business: Village Building Company Pty Ltd v Canberra Airport Pty Ltd (2004) 139 FCR 330; [2004] FCAFC 240 at [55]. As the Court observed in Village: "[50] In the present case it is difficult to see how the representations made by [Canberra International Airport] (assuming the truth of the pleaded allegations) can be said to have been made in the course of a trading or commercial relationship or of activities that bear a trading or commercial character as required by Concrete Constructions. [51] Some of the representations were made by [Canberra International Airport] to the Minister in the course of requesting and then withdrawing a request for Ministerial approval of a draft variation to the Year 2020 Master Plan for Canberra Airport. The Minister's approval was required pursuant to s 84 of the Airports Act. The relationship between the Minister and [Canberra International Airport] was not of a trading or commercial character; if anything, it was a relationship between a regulator and a regulated industry or business. Nor were [Canberra International Airport]'s representations made as part of the process designed to secure approval to a commercial transaction or dealing. Rather, they were made in the course of requesting (and withdrawing the request for) a variation to the Year 2020 Master Plan, by disclosing that the ANEF 2020 had been replaced by the ANEF 2050."
6. In this case, the primary judge found that: "[30] It is clear (and common ground on the pleadings) that each Minister to whom the letter and its attachments were sent had ministerial responsibility for the electrical safety regulator in his or her state. There is no evidence that any of those Ministers had any responsibility, ministerial or otherwise, for purchasing decisions made by electricity distribution utilities."
7. The basis of the appellant's claim that the conduct should be characterised as being in trade and commerce, and that it was designed to achieve a commercial advantage for members of the first respondent by delaying purchasing decisions in relation to the appellant's cable, was rejected.
8. It is no doubt correct that many, perhaps even most, cases of complaints about the safety of a competitor's product may be capable of being characterised not merely as safety complaints but as attempts in whole or in part to secure a commercial advantage. Each case will involve a question of careful characterisation. The relationship between the Ministers and the first respondent was not of a trading or commercial character. It was a relationship between a Minister responsible for electrical safety regulator and an industry body representing Australia-based members of a regulated industry or business. The first respondent's representations were not made as part of the process designed to secure approval to a commercial transaction or dealing. The only commercial advantage for the members of the first respondent identified by the appellant was a matter upon which it failed, being that the Ministerial recipients of the letters were directly or indirectly responsible for electrical cable purchasing decisions. In carrying out the required characterisation here I have concluded that the conduct relied upon as misleading or deceptive - sending a letter to Ministers responsible for safety regulation about the safety of one type of electrical cable - was not conduct in trade or commerce for the following reasons: 1. first, the primary judge's unchallenged finding was that each of the recipients of the letter was responsible for safety and not for cable purchasing decisions. The letters were sent by the first respondent to the Ministers with responsibility for electrical cable safety and, deliberately, not to cable purchasing entities or to the public at large; 2. secondly, the first respondent demonstrated that it sent the letters because of a genuinely held concern about the safety of the appellant's cable and not to secure any commercial advantage. This is illustrated by the language of the letter which demonstrates that it is directed to compliance and safety concerns; and 3. thirdly, the letters were sent in the discharge of the first respondent's safety and compliance functions, which do not bear any trading or commercial character. The first respondent's objects include the "approved cables initiative" whose purpose is to promote safety standards by arranging performance testing of Australian and foreign manufactured cables in the Australian market and enforcing and upholding Australian cable specifications and standards. The sending of the letters was consistent with the rules of the "approved cables initiative", that where a cable fails testing and is considered to be unsafe, government Ministers and State regulators must be informed. The first respondent took similar action when it formed the view that products produced by "ECABLES" and "Infinity" were unsafe.
9. The appellant has not discharged the onus, which it bore, of demonstrating that the impugned conduct was in trade or commerce. The sending of the letters did not have the necessary commercial character; it was not "conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character".
10. This case is readily distinguishable from Tobacco Institute of Australia v Australian Federation of Consumer Organisations (1992) 38 FCR 1, which was relied upon heavily by the appellant in asserting that the letters comprised "promotional material". In that case, the Full Court of the Federal Court emphasised that the relevant conduct conveyed a message favourable to the consumption of cigarettes which was placed in a number of national newspapers. As a matter of characterisation, the published material had the overall character of an advertisement designed to promote or maintain sales of cigarettes. It is true that in the joint judgment in Concrete Constructions the plurality observed that certain promotional activities bear a trading or commercial character. But the joint judgment said, at 604, only that such activities include: " … promotional activities in relation to, or for the purpose of, the supply of goods or services to actual or potential consumers."
11. Conduct by a corporation which does not otherwise bear a trading or commercial character is not brought within s 18 of the ACL simply because it may be thought in some way to benefit the corporation's business or because it can be labelled as "promotional".
12. The relevant conduct in this case, expressly limited as it was, was not shown to be in trade and commerce.

Relief

1. Assuming, contrary to my conclusions, that the appellant was otherwise entitled to succeed, this is not a case where the relief sought should be granted.
2. Injunctive relief would not be justified in this case. The relevant circumstances here are: 1. the conduct occurred almost three years ago; 2. the first respondent has not republished the contents of the letters; and 3. it may confidently be concluded on all of the evidence that the first respondent has no intention of republishing the contents of the letters.
3. The absence of any continued or threatened contravention of the ACL provides a powerful consideration against granting injunctive relief: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 256-257 (Lockhart J, French J agreeing).
4. A declaration should not be made. The first respondent accepted that the letters contain information which is not correct in the ways explained at [15] above. The first respondent has not, for some years, pressed the concerns expressed in those letters. All of the relevant decision makers are in possession of the expert reports which address the issues raised by the letters. A declaration will not be granted where it would produce no foreseeable consequences: Truth About Motorways Pty Ltd v Macquarie Investment Infrastructure Management Ltd (2000) 200 CLR 591; [2000] HCA 11 at [51]-[52] (Gaudron J). The present is such a case.
5. To the extent that the appellant sought relief on the appeal against the second respondent, that relief should not be granted. The second respondent is no longer the Chairman of the first respondent. A declaration in relation to the second respondent's conduct would for this additional reason produce no foreseeable consequences.

Conclusion and proposed orders

1. I propose the following orders: 1. Appeal dismissed; 2. Appellant to pay the respondents' costs of the appeal.
2. SACKVILLE AJA: I agree with Payne JA and the additional observations of Gleeson JA.

Endnote

1. The evidence in relation to Infinity cables was scant but it appears that a complaint by the first respondent to Ministers led to a recall overseen by Fair Trading NSW. The evidence in relation to ECABLES was that the product was predominantly sold in Victoria and that the first respondent was working with Energy Safe Victoria and independent testers before approaching the Minister. The Minister was assured that the first respondent would work with Energy Safe Victoria towards a solution. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2019