(i) Is the conduct in trade or commerce?
131 The term "trade or commerce" is defined in s 4(1) of the CC Act and s 2(1) of the ACL to refer to trade or commerce within Australia or between Australia and places outside Australia. The definition in s 2(1) also refers to "any business or professional activity (whether or not carried on for profit)."
132 Although a wider operation of the provision may be envisaged, the High Court determined, in Concrete Constructions, that a narrow construction should be adopted to the phrase "in trade or commerce" in s 52 of the Trade Practices Act 1974 (Cth). The approach in Concrete Constructions remains applicable to ss 18 and 29 of the ACL. The key principles established in Concrete Constructions may be summarised as follows.
(a) The prohibition on misleading or deceptive conduct is not confined to cases involving the protection of consumers alone, but consumer protection nevertheless lies at the heart of the legislative purpose of the prohibition, as was reflected in the heading "Consumer Protection" to Pt V of the Trade Practices Act and now in the very name of the Australian Consumer Law which is Sch 2 to the CC Act and this affects the proper construction of the phrase "in trade or commerce" (at 601-602).
(b) The phrase "in trade or commerce" has a restrictive operation. It 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." Thus it refers 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 purpose of, carrying on some overall trading or commercial business (at 603). The focus is on the conduct which is alleged to be in breach of the prohibition and not upon the range of activities in which the relevant corporation engages.
(c) The prohibition was not intended to impose "by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities" (at 604).
(d) It is insufficient that conduct concerns matters of trade or commerce or that it could be said to be in relation to trade or commerce or have some connection with trade or commerce(at 614). Rather, the relevant conduct must actually be "in" trade or commerce or, alternatively, "as part of trade or commerce".
(e) The section is concerned with "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 the nature, bear a trading or commercial character" (at 604).
(f) Importantly, the dividing line between what is or is not conduct "in trade or commerce" may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character (at 604).
133 There is a body of caselaw which indicates that it is not the intention of ss 18 and 29 of the ACL (or its predecessor) to govern public or political debate. These cases involve a more specialised enquiry focussed on whether the impugned conduct is itself in trade or commerce, rather than merely capable of affecting trade or commerce. As Finn J observed in Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCA 133; 134 FCR 422 at [61]-[63] (emphasis added):
61. The representations in question were all made in the context of a planning application having been made to rezone Tralee - an application which CIA openly and repeatedly opposed. Its opposition was consistent with its own business interests and took the form of community consultation and representation for the purpose of informing and influencing public, political and governmental opinion. By virtue of the provisions of the Airports Act (and especially s 71), CIA had a necessary and ongoing interest in aircraft noise and its incidence. It sought to engage community interest not only in the subject of noise exposure as a matter of public concern but also in its specific opposition to the Tralee development. In both respects it was engaging in what properly should be described as political activity, but especially so in relation to the latter. The rezoning application highlighted both conflicting private interests and conflicting public interests. Those conflicts could only be resolved by governmental action. In seeking, directly or indirectly, to contrive or influence outcomes by representations made in public debate, or in the processes of informing the public, CIA was engaging in activities of a political, not of a commercial or trading, character. And this was not the less so because its activities were informed by a degree of self-interest. Altruism is often a stranger to political action.
62 It is notable that the impugned representations were not made in circumstances in which it could properly be said that CIA was promoting, directly or indirectly, the services provided by the airport. It was, nonetheless, acting to protect its business. As I earlier indicated, action so taken is not for that reason alone in trade or commerce. It would be surprising if the legislature had intended the contrary to be the case in the Trade Practices Act. Corporations engage directly and indirectly in public and political debate on a myriad of matters that do or might impact actually or prospectively on their own interests. While all such debate will not be beyond the reach of s 52 of the Trade Practices Act: see e.g. Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; much will be as it will not be directed at consumers (actual or potential), or will not be an incident of an activity which bears a trading or commercial character.
63 What Village is seeking to do in this proceeding is to have imposed on CIA "by a side-wind": cf Concrete Constructions; a form of legislative control in circumstances in which s 52 has no role to play. One may desire conduct in public and political debate to be not misleading or deceptive. Section 52 is not designed to secure that state of affairs. In saying this I express no view on whether or not CIA's conduct was misleading or deceptive.
134 Other decisions have confirmed that communications or conduct (including by corporations who are engaged in commercial or trading businesses), in the course of public or political debate are likely to fall outside of the phrase "in trade or commerce". A good example is Orion. The question there was whether false statements by persons associated with the RSPCA regarding electronic dog collars which were manufactured by the applicants were statements made in trade or commerce. It was held that the RSPCA's trading activities were anything but modest and that it was a "trading corporation" within the meaning of s 4 of the Trade Practices Act. Although having found that the RSPCA was a trading corporation, Weinberg J noted at [192] that many of its functions had a non-trading or commercial character. He emphasised that the relevant statements were part of "an educational and political agenda" (at [193]). Although they may have provided some benefit to the RSPCA from greater public exposure of its intellectual property, including its name and logo, Weinberg J described those benefits as "purely incidental". He concluded that the applicants had not established that the statements were made "in trade or commerce" (see also Tobacco Institute of Australia Ltd v Woodward (1993) 32 NSWLR 559 (statements in relation to the dangers passive smoking); Plimer v Roberts (1997) 80 FCR 303 (statements made by an academic in the course of public lectures and taped interviews) and Canberra International Airport itself (representations made by the owner of Canberra Airport and Airservices Australia regarding noise forecasts or projected flight-paths for the Canberra Airport which affected the applicant's proposed land use activities)).
135 It was properly acknowledged by Mr Cobden SC that there is no precedent which establishes that the conduct of a trade union or its members in campaigning for improved wages or conditions of employment constitutes conduct "in trade or commerce". Conduct in the course of an existing employment relationship is unlikely to constitute conduct "in trade or commerce" even where it is the conduct of the parties to the relationship itself (see, for example, Westpac Banking Corporation v Wittenberg [2016] FCAFC 33; 242 FCR 505). Similarly, I consider that statements by an employer to its employees in the context of a proposed enterprise agreement will not generally constitute conduct "in trade or commerce". By analogy, representations made by a trade union in the context of an industrial campaign in relation to the existing conditions of employment of employees will generally fall outside conduct that is "in trade or commerce".
136 Another important matter to bear in mind is that the enquiry must remain focussed on the particular conduct which is said to be misleading or deceptive. As Hayne J observed in Google Inc v Australian Competition and Consumer Commissioner [2013] HCA 1; 249 CLR 435 at [89] (emphasis in original):
Section 52 and the identification of the impugned conduct
The generality with which s 52 was expressed should not obscure one fundamental point. The section prohibited engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. It is, therefore, always necessary to begin consideration of the application of the section by identifying the conduct that is said to meet the statutory description "misleading or deceptive or ... likely to mislead or deceive". The first question for consideration is always: "What did the alleged contravener do (or not do)?" It is only after identifying the conduct that is impugned that one can go on to consider separately whether that conduct is misleading or deceptive or likely to be so.
137 In the present case, the impugned conduct is the conduct identified by the NRMA as giving rise to the representations which it says are misleading or deceptive (see above at [52], [58], [61], [62] and [63]).
138 The conduct and representations the subject of complaint by the NRMA are, on their face and in their proper context, part of an industrial and incidental political campaign (noting the role of the NSW Government as described at [6] above, and the correspondence which was in evidence between the MUA and the NSW Government concerning the dispute) aimed at securing permanent employment, achieving wage outcomes consistent with industry rates and recouping underpayments for employees. The conduct complained of has no trading or commercial character and is not directed at any person with whom the MUA has, or potentially has, any trading or commercial relationship.
139 The substance and content of the communications subject of the proceedings are overtly industrial and/or political in substance and purpose. The communications or publications all directly concern the MUA's views as to the fairness of the wages or conditions of employment of employees working on the My Fast Ferry service, including whether the rates of pay are adequate and the insecure nature of the employment. For example, each of the Pamphlets contains the following words encapsulating the campaign:
NRMA AND MANLY FAST FERRY
Its time to negotiate a fair deal with your workers.
Don't let wages sink to the bottom of Sydney Harbour.
140 The MUA is not a commercial business and is not engaged in trading activities in representing its members. The Rules of the CFMMEU set out the objects of the union which concentrate on regulating and protecting the wages and conditions of members, regulating the relations between members and employers and fostering the best interests of members.
141 It is not sufficient that some or even most of the communications relate to or concern the business of the NRMA or Noorton. The conduct must itself be undertaken in trade or commerce and have a trading or commercial character.
142 In support of its contention that the relevant conduct was in trade or commerce, the NRMA relied heavily on the High Court's decision in Houghton and emphasised that it post-dated Orion. As noted above, it relied upon Houghton for the proposition that the central question was not whether the activities of the MUA were "in trade or commence", but rather whether its conduct and representations were directed to persons who themselves are "in trade or commerce". In oral address, Mr Cobden SC refined this submission into a contention that, by their representations, the MUA had "thrust themselves" into the NRMA's trade or commerce.
143 In Houghton, which concerned the equivalent provision in s 9(1) of the Fair Trading Act 1999 (Vic), the High Court held that two employees (Mr Houghton and Mr Student) of a corporation (trading under the name "WSA") which had been engaged to advise on website design, construction and administration were personally liable (as well as the corporation itself), for representations made by them which were misleading or deceptive concerning the extent of documentary obligations which would fall on participants on the internet website being set up by the applicant (Mr Arms) in developing an online wine order business. The representations were to the effect that the applicant would be able to operate the website without having to obtain from participating wineries any documentation other than a form with provision for banking details. The plurality held at [34] that statements made by a person who was not himself or herself engaged in trade or commerce may be caught by the prohibition if, for example, "they are designed to encourage others to invest, or to continue investments, in a particular trading entity", citing Fasold v Roberts (1997) 70 FCR 489 at 531 per Sackville J (although there is no mention in Houghton, an appeal from Sackville J's decision was dismissed in Plimer v Roberts and an application for special leave to appeal was refused on 19 June 1998).
144 The core finding in Houghton is at [35]:
Mr Arms was engaging in trade and commerce under the name "Australian Cellar Door" and by means of the auscellardoor web site. He enlisted WSA to provide services and advice for the purposes of his business. It was the business of WSA to provide such advice and services. It is not to the point that Mr Houghton and Mr Student themselves were not business proprietors or that their activities were an aspect or element of the trade or commerce of WSA (and of Australian Cellar Door) but not of "their" trade or commerce. Mr Houghton and Mr Student nevertheless engaged in conduct in the course of trade or commerce and were thus within the ambit of the FT Act.
145 In my view, Houghton turns very much on its own facts. I do not consider that it establishes an absolute and unqualified principle that it is sufficient to establish that conduct is "in trade or commence" if the persons to whom representations are made are themselves in trade or commence even if the person making the representation is not. In Houghton, there undoubtedly was a trading or commercial relationship between WSA and Mr Arms in the form of the services and advice being provided by the former to the latter in establishing an online wine order business. The fundamental point made by the plurality in Houghton at [35] was that it was unnecessary to establish that the conduct of the two employees was in "their" trade or commerce in circumstances where the conduct of their employer (WSA) plainly was conduct in trade or commerce and the employees' activities were an aspect or element of WSA's trade or commerce.
146 The plurality's reference to Fasold is revealing. Fasold, which involved claims of misleading or deceptive conduct under both the then Trade Practices Act and the Fair Trading Act 1987 (NSW), related to whether statements made in public lectures and in tapes of the lectures were made "in trade and commerce". The statements were made by an ordained Christian minister, Dr Roberts. They were made in the course of public lectures in which Dr Roberts advanced the hypothesis that a boat-shaped geological formation in Eastern Turkey is or could contain the remnants of Noah's Ark and thereby provide tangible evidence of the literal truth of the account of the great flood in Genesis, 6:13-8:19. Justice Sackville emphasised at 528 that the critical question was whether Dr Roberts' statements constituted "conduct which is itself an aspect or element of transactions which, of their nature, bear a trading or commercial character" (emphasis in original), quoting Concrete Constructions. Other cases to which Sackville J referred, included Unilan Holdings Pty Ltd v Kerin [1992] FCA 211; 35 FCR 272, where it was held that a speech given by a Commonwealth Minister at an overseas conference, which statements the Minister conceded were intended to influence wool prices in the interests of Australian wool growers and to persuade people to buy the product, were held not to have been made "in trade or commerce". The statements were described by Hill J as not having been made as an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character, but rather were statements made in relation to trade or commerce.
147 Justice Sackville also referred to Meadow Gem Pty Ltd v ANZ Executors & Trustee Co Ltd (1994) ATPR (Digest) 46-130. In that case, claims were made that comments by two Victorian Government Ministers were misleading or deceptive. The claims related to public statements by the Ministers which represented that investments in the Pyramid Building Society were secure and that there were no risks to investors. The building society later failed. The Ministers unsuccessfully sought to strike out portions of the statement of claim on the basis that their statements had not been made in trade or commerce. Justice Hedigan stated at 53,631 that the conduct in question "does not have to be conduct in connection with one's own business, and that it would be sufficient if the conduct engaged in was for the purpose of promoting the business of some other person or corporation". In analysing Meadow Gem, Sackville J said in Fasold at 530 that the Ministers' statements were arguably made to "shore up" the building society during the time when there was a run by depositors and the statements were capable of being viewed as "promotional activities" in respect of a particular trading corporation.
148 It was in this context that, in Fasold, Sackville J said at 531:
Public statements by a person not engaged in trade or commerce himself or herself, may be made in trade or commerce if designed to encourage others to invest, or continue investments, in a particular trading corporation: Meadow Gen.
149 This is the passage which the plurality in Houghton referred approvingly to at [34]. I do not consider that this supports the NRMA's case here. That is primarily because the conduct of the MUA which is challenged is not conduct which was "designed to encourage others to invest, or continue investments" in the NRMA. Rather, it was designed to secure improved terms and conditions of employment by MFF staff. For similar reasons, I do not consider Firewatch Australia Pty Ltd v Country Fire Authority [1999] FCA 761; 93 FCR 520 at [62]-[67] assists the NRMA's case. That case concerned a bulletin issued by the Country Fire Authority to its equipment maintenance servicing brigades and consumers or potential consumers of the applicant's fire extinguishers. The bulletin expressed a view that the applicant's extinguishers did not meet Australian Standards for use with respect to certain classes of fire. Justice Goldberg held at [64] that the bulletin was of "a trading and commercial character" because and it was intended to "influence servicing brigades not to be involved in the distribution or recommendation of the Firewatch extinguisher" and "have a consequence or impact on trading and commercial activities".
150 It is important to apply the relevant principles (including those in Houghton), with close attention to the facts and circumstances of the particular case. I view the following matters as particularly important here:
(a) there was no commercial or trading relationship between the NRMA and the MUA;
(b) the MUA's conduct occurred in the course of an industrial campaign which was directed to securing improved terms and conditions of employment for MFF staff;
(c) the conduct complained of was not motivated by a desire on the part of the MUA to promote any of its business activities but, as has been emphasised, was designed to secure improved working conditions;
(d) although the MUA's conduct in conjunction with the NRMA AGM was plainly directed at NRMA members and other persons who were attending that meeting, I do not consider that the conduct was undertaken with a view to discouraging NRMA members from maintaining their membership. The MUA clearly wanted to enlist the support of NRMA members in their industrial dispute but that is a common feature of any industrial campaign targeting a particular trading or commercial body;
(e) similarly, any such industrial campaign is likely also to be directed to a wider section of the public, not confined to the target company itself, in order to garner public support for the campaign; and
(f) none of conduct said to give rise to the representations pleaded by the NRMA was primarily directed to encouraging or discouraging members of the public, or members of the NRMA from investing in the NRMA's businesses or providing patronage to its businesses. Rather, the underlying conduct was directed to garnering support from the public and members of the NRMA for the MUA's industrial campaign for better wages and working conditions for the MFF workers (such as the emails to Mr Lund referred to at [11] above). In this regard, it is worth noting expressly that Mr Keating's calls to boycott NRMA services (see above at [72]) were not relied on as founding any of the NRMA's misleading or deceptive conduct claims.
151 It is clear that the MUA's industrial campaign was directed to a much wider audience than the NRMA itself, including its staff and members. This is reflected in the extensive use of social media, Pamphlets, Placards and the Logo T-Shirts, which were designed to engage the interest and support of members of the public, including MFF customers. Unlike the position in Astra, the conduct was not designed to encourage others not to invest in a particular trading entity. The MUA's conduct is also far removed from that which arose in TCN Channel Nine, upon which the NRMA also relied. The deceptive conduct there was specifically directed to the trading or commercial activities of the building company. That was because the television reporter used the false pretext of inquiring about the possibility of engaging the building company's commercial services with a view to procuring an interview for the purposes of broadcasting it in a telephone program.
152 Finally, it is relevant to note that acceptance of the NRMA's position concerning the ACL would bring the entire field of industrial relations within the operation of consumer legislation. It is highly unlikely that was the intention of either the Commonwealth or NSW State Parliament. It is not without significance that at the Commonwealth level, detailed and specialised legislation, principally in the form of the Fair Work Act 2009 (Cth), has been enacted to regulate industrial matters. That legislation contains specific prohibitions on misrepresentations relating to workplace rights or industrial activities (see, for example, ss 345 and 349 of the Fair Work Act), as well as an array of specific regulations governing the conduct of the participants in industrial disputes. This is a relevant, but not determinative, contextual consideration.
153 For completeness, I should also make clear that I am not suggesting that there is a global carve out from the ACL of all conduct and activities of a trade union. As the analysis above of some of the relevant caselaw relating to the making of political comments or statements reveals, each case necessarily turns upon its own facts and circumstances. The expression "in trade or commerce" is somewhat chameonlic and does not lend itself to dogmatic prescription.
154 For these reasons, I consider that the relevant conduct of the MUA was not conduct "in trade or commerce". That is a sufficient reason alone to dismiss the NRMA's claims under both the Commonwealth and State ACL.