Plaintiff v First Defendant Second Defendant

58 The purpose of the publication of the Short Form Business Case to Infrastructure Australia is alleged by the State to be for the purpose of attracting Commonwealth Government funding. This is not admitted by the plaintiff, but in oral submissions the plaintiff clearly accepted that this was the position.[105] Nonetheless, it is, in my view, a reasonable inference that the purpose of that publication was consistent with the functions of Infrastructure Australia under s 5 of the Infrastructure Australia Act 2008 (Cth), which have been set out previously.[106] It is scarcely credible to suggest that the State would be providing information of this nature to a body with the functions of Infrastructure Australia for any other purpose. The State submits that the publication of the Short Form Business Case to Infrastructure Australia was "a purely intergovernmental communication".[107] In my view, there is nothing in the material before the Court which suggests otherwise - particularly having regard to the nature of the parties to the communication and the provisions of the Infrastructure Australia Act 2008 (Cth), to which reference has been made. The plaintiff's submission that the provisions of that legislation may also accommodate submissions by private entities does not detract from this position.

59 Moreover, the 1 July 2013 and 31 October 2013 media releases and the responsive letters by Ministers to members of the public are each suggestive of and supportive of the view that they pertain to the ordinary functions of government, which include informing the public of government decisions, seeking to persuade the public of the merits of those decisions, and responding to public concerns about those decisions. Indeed, in a democratic society, these would rank among the critical functions of government. The plaintiff submits, however, that '[t]here is also an ongoing community engagement program that extends beyond that required for the statutory approvals process:'[108]

All that is known about the purpose of the community engagement program is that it was included in the detailed business case for the Project. It is a reasonable inference that the community engagement program is designed to promote the Project to all stakeholders in it (including the public as consumers i.e. customers in respect of the Project, and as the persons ultimately funding the Project on an ongoing basis) and manage the commercial risk of public opposition to the Project and to enhance public support for the Project.

Nevertheless, in my opinion, the State's attempt to inform and engage the community is entirely consonant with the ordinary functions of government, both generally and in terms of the statutory approvals process, and devoid of any business or trading character.

60 Under s 41 of the MTPF Act, the CIS was a document required to be submitted to the Department by the Authority. Section 49(1)(a) of that Act required the publication of the CIS by the Authority which, after publication, was on exhibition for public comment. Public submissions were permitted under s 52 of that Act and s 54 required the Assessment Committee to review those submissions. These aspects of the MTPF Act are, in my view, clearly designed to achieve an object of that Act, which is 'to streamline the development of major transport projects ... through a process for the assessment of the project ... that maintains opportunities for public consultation'.[109] It follows that the publication of the CIS on the Department's website is consistent with the statutory object of the MTPF Act.

61 Moreover, the context in which these publications occurred does not, in any respect, suggest that they occurred in the course of carrying on a business. The clear context is the undertaking by the State of long-term very substantial infrastructure planning and development, which included the exercise of statutory powers of a regulatory kind. I accept that this is a distinctly governmental activity and is not an activity which a private citizen or trader might undertake.[110] Having regard to the nature of the substantial infrastructure planning and development, it may be accepted, and is unsurprising, that part of the context involves the undertaking of a tender process. Nevertheless, the authorities make clear that representations made to tenderers within the context of a tender process, and while dealing with tenderers, do not constitute conduct in the course of carrying on a business, even if the thing tendered for will constitute a business once operational.[111] Consequently, it is entirely inapt to characterise the conduct of the State, otherwise than through the Authority, which is relied upon by the plaintiff, as conduct in the course of carrying on a business, given that it does not involve any alleged representations to tenderers.

62 As submitted by the State, it may also be accepted that part of the context is that the Project will, in part, comprise a toll road, where it is intended that the toll revenues will be collected by the State. However, the State submits that even if operating the toll road would constitute the carrying on of a business by the State, that would not mean that the conduct of the State relied on by the plaintiff was conduct in the course of carrying on that business. The plaintiff submits, however, that the Representations were made in the course of carrying on a business:[112]

[T]he making of the Representations to the public at large were steps taken to promote, and in furtherance of, the Project, inter alia in order to build support for, and to manage the commercial risk of, community and potential user opposition to the Project.

In my opinion, having regard to the preceding reasons and authorities to which reference has been made, it is impossible to say that, when the Representations were made, the State was carrying on that business.

63 In any event, the State denies that the operation of the toll road would constitute the carrying on of a business by the State, but also submits that this is not a question which is necessary to determine. Whilst simply noting the denial, I do accept that it is not necessary to determine this question. I do, however, observe that it could not, on the basis of the authorities to which reference has been made, be assumed that the labelling of a payment as a 'toll' in a road construction and development project would necessarily indicate that receipt of all or part of that 'toll' would result in that recipient being regarded as carrying on a business. In this context I note the oral submissions of the State for the purpose, solely of illustrating (but not deciding) this point:[113]

I wasn't going to get into I suppose the debate about whether operating a tollway is carrying on a business, but it's submitted that it's not. The carrying on of a business involves a lot more than accepting money when someone uses the product. If one thinks back to publicly owned roads with tolls on them over the centuries, turnpikes and so on and payment of tolls to cross bridges or even use plants and things of that nature, it's hard to characterise that as the carrying on of a business.

When there were tolls with human beings in toll booths on the Westgate Bridge one wouldn't have called that significantly the carrying on of a business by the government. It's the raising of revenue.

Alleged Contravening Conduct of the Authority

64 The contravening conduct on the part of the Authority arises from the publication and republication of three documents[114] - the plaintiff alleging that, in relation to the Project, the Authority was at all material times carrying on a business. For the reasons which follow, I am of the opinion that the plaintiff's allegation in this respect is not established.

65 The plaintiff submits that the Authority's primary object is to facilitate the efficient development, delivery and operation of any Road Transport-Related Project and that that object is essentially commercial, especially considering the project involves a toll road.[115] Further, the Authority's functions as set out in s 138 of the Transport Integration Act 2010 'lend themselves to carrying on a business.'[116] These functions include facilitating the scoping, development, construction, delivery and operation of any Road Transport-Related Project, and negotiating and managing and ensuring compliance with agreements for the development, delivery and operation of projects.

66 The Authority submits that it has never carried on a business in relation to the Project.[117] So much, it says, is apparent from the following: (1) the object of the Authority is not primarily trading or commercial in character; (2) the matters pleaded in paragraph 19 of the Authority's defence; (3) the audited accounts of the Authority; and (4) the Annual Reports of the Authority for the years ended 30 June 2012 and 30 June 2013.[118] The Authority says that, put simply, in discharging its statutory duties and obligations, it has not been carrying on a business. The fact that the Authority has conducted the tender process for the construction of the Project does not alter the position and, according to the authorities, such conduct lacks a commercial flavour.[119]

67 The present circumstances are that, following completion of the Project in five or six years, the State, as opposed to the Authority, may collect tolls from motorists using the roadway.[120] The plaintiff contends that, in these circumstances, the 'preparatory' conduct of the Authority amounts to carrying on a business:[121]

In the current context, it would be contrary to the remedial purpose of consumer protection and fair trading legislation to exclude preparatory activities from the carrying on of a business.

This argument does, as the Authority submits, hinge on an assessment of its activities in light of the ultimate way in which the Project might operate. This argument does, however, ignore or downplay the statutory framework and foundation on which the Project rests. This foundation includes the purpose of the TI Act; the 'Transport system Objectives', provided for in the TI Act; the object of the Authority; the functions of the Authority and also the object and terms of the MTPF Act. As the Authority submits, the way in which the Project might ultimately operate as a tollway does not render irrelevant this statutory foundation. This is particularly the case in the present circumstances because, as the authorities to which reference has been made indicate, the critical time at which a determination must be made, that there is a carrying on of a business is at the time of the alleged contravening conduct and not at some time in the future. Consequently, the statutory foundation must provide the starting point for an assessment of the character of the Project and the character of the Authority's role and activities in facilitating the delivery of the Project. The Authority submits, by way of example only, that this foundation demonstrates that the Authority's activities to date relate primarily to the planning and construction of a public roadway pursuant to statutory powers and duties. Such activities are, it says, the function of government, rather than trade or commerce.[122] For the reasons I have and will set out in more detail, I am of the opinion that this is the correct view.

68 Continuing in this vein, the Authority submits that, on this analysis, there is a flaw in the starting point in the plaintiff's 'preparatory conduct' argument. It says that by asking the Court to focus on the ultimate way in which the Project might operate, the plaintiff diverts attention from the statutory foundation. As indicated, in my view, it is necessary to analyse that foundation to assess and characterise correctly the Authority's activities thus far in relation to the Project. The analysis of the statutory foundation leads, critically, to consideration of the core function of the Authority; a core function which is apparent from the provisions of s 137 and 138 of the TI Act.[123] Having regard to the Authority's core function, the fact that the Authority's present activities may lead to the implementation of an income producing tollway does not establish or logically lead to the conclusion that the Authority is carrying on a business. It is clear from the statutory provisions that the generation of income is not a core function of the Authority. Thus, in determining whether the Authority's present activities do amount to carrying on a business, it is relevant, in my view, to have regard to the position that its core function, by statute, does not amount to carrying on of a business.[124]

69 The same reasoning and approach is, in my view, applicable with respect to the use of a public-private partnership for delivery of the Project. This does not strip away or in any way transform the core function of the Authority.[125] Clearly, the Authority's core function relates to the execution of a government function, namely, the delivery of roadways in the interests of the community. The use of a public-private partnership is merely the means by which the Project is to be delivered. Again, the means of delivery, in this case the public-private partnership, does not alter the character of the undertaking.

70 The Authority's submissions then address in more detail the nature and effect of the utilisation of a public-private partnership, submissions which, in my view, do establish that the utilisation of a structure or arrangement of this kind is, at least in the present context, merely a means of carrying out a function of government, rather than an activity of a business or commercial nature. Moreover, the fact that government functions may, utilising machinery such as a public-private partnership, provide a more efficient means of performing those functions, does not confer on its structure or associated activities a business or commercial character.[126] The Authority's submissions in this respect are as follows:[127]

1. To the extent that it is necessary to offer material supporting this argument, the LMA refers to the second reading speech relating to the Southern and Eastern Integrated Transport Authority Bill.[128] The SEITA was the predecessor of the LMA.[129] In that speech, Mr Batchelor (the then Minister for Transport) said:

By using the Partnerships Victoria framework, the government is seeking the best deal for taxpayers by optimising the risk to the private sector and encouraging innovative design and operational solutions so as to deliver the best-value-for-money solution.

1. The Department of Treasury and Finance administers Partnerships Victoria, being the programme to which Mr Batchelor referred in this second reading speech. Since 2002-2003, Partnerships Victoria projects have accounted for approximately ten per cent of annual public asset investment commitments.[130] The Project is a 'tendering project' within this programme.[131]

The documents referred to in these submissions are in the public domain and the second reading speech referred to may, in any event, be available as an aid to the interpretation of the legislation the product of the Bill to which reference is made.[132] In any event, no objection was taken to the reference to these documents.

71 The publication of the Executive Summary from the Short Form Business Case must be viewed against this background. In relation to the publication of this Executive Summary, the Authority makes a number of points:[133]

(a) On 1 July 2013, the Executive Summary was published to the world at large on the LMA's website.

(b) The document is not addressed to investors, business people or commercial traders of any sort.

(c) The document does not seek investment in the Project. In particular, the document does not seek to induce investment. In this regard, there is no reference to anyone sharing in future income streams flowing from the Project's operation as a tollway.

(d) The document does not suggest that the Project will operate as a 'business' in which consumers or investors could acquire an interest.

(e) These factors alone undermine the plaintiff's contention that the Executive Summary is analogous to an investment prospectus.

(f) If these matters leave any room for doubt (which is not accepted), a careful analysis of the statutory foundation removes it. When that foundation provides the starting point for the analysis, the plaintiff's argument is exposed as a superficial attraction.

(g) The activities of the LMA do not constitute the carrying on of a business because they do not have the flavour of a commercial enterprise. Rather they are inextricably linked with a function of government.

72 Moreover, in terms of the Executive Summary, the Authority responded in its submissions to the contention by the plaintiff (though not pleaded) that it was significant that the Authority gave this document to the Bidders.[134] Nevertheless, the Authority submits that it did not supply that document to the Bidders for commercial purposes in trade or commerce, and noted the following facts and matters:[135]

(a) First, the relevant conduct was not aimed solely at the Bidders. Rather the Bidders were given access to an on-line project data room to which other persons had also been given confidential access.

(b) Second, on about 1 July 2013, the LMA made this document available to the world at large (via its website). Plainly, the relevant conduct in October 2013 was not designed to influence the commercial position of the Bidders.

(c) Third, each of the Bidders executed documents in which it disavowed reliance on representations contained in the Executive Summary.

(d) Fourth, none of the Bidders have complained about the contents of the document.

(e) Finally, it is clear that the LMA did not supply the Executive Summary to the Bidders with a view to influencing their commercial conduct. The Executive Summary is a 'high level' document published to the world at large. It is hardly the sort of document that would bear on a Bidder's decision to enter into a construction contract. Two things bolster this last point: (1) the size of the Project; and (2) the indisputable commercial sophistication of each Bidder.

Although it might be thought that as the submissions are cast they are more relevant to the trade or commerce question, they do, in the present circumstances, have significance with respect to the question whether the Authority was, at the relevant time, carrying on a business. In my view, for the reasons indicated previously, even if the view were taken that the Authority did ultimately carry on a business, a view which I do not accept, the giving of the Executive Summary to Bidders could, at its highest, only be regarded as preparatory conduct and would not indicate the carrying on of a business by the Authority at any relevant time.

73 The Authority made reference in its submissions to its Annual Reports for the years ended 30 June 2012 and 30 June 2013.[136] Each of these annual reports contains a description of the nature of the Authority's operations and its principal activities. Each of these Annual Reports also includes the Financial Statements of the Authority in the relevant financial year. As a statutory authority, the preparation of these Annual Reports by the Authority was in accordance with relevant legislation.[137] Moreover, each of these Annual Reports was published and tabled in Parliament as required by the provisions of the Financial Management Act 1994. It follows from these matters, including the statutory duty to make each Annual Report public, that these documents contain 'informal' admissions of the 'utmost solemnity'.[138]

74 Turning to the Annual Reports themselves, they show, in respect of the Project, that the Authority has carried out all activities in a 'businesslike' manner. As indicated previously, such an approach does not of itself support the conclusion that the Authority has been carrying on a business in respect of the Project.[139] The accounts contained in these Annual Reports contain Financial Statements for the relevant financial year. In the present context, and also with respect to the trade and commerce question, the Authority makes specific reference in its submissions to Note 2 to the Financial Statements for the year ended 30 June 2013. (This note is headed 'Income and expenses by nature and major activity').[140] As submitted by the Authority, this Note shows that:

(a) In the financial years ended 30 June 2012 and 30 June 2013, the Authority's sole source of income was Grants. The Financial Statement recognises revenue, relevant to expenditure, when expenditure is incurred.[141] In other words, the amount of each Grant was equal to the amount of relevant expenditure. The accounts show nil sales revenue.

(b) The accounts show that, in respect of the Project, the Authority has not provided any services for remuneration in a competitive and commercial context, with a business character.[142] The accounts also show that, in respect of the Project, the Authority did not generate any sales revenue in the relevant period.

(c) This situation is vastly different from the situation described in the Power and Water Authority's 1998 Annual Report and accounts.[143]

75 The Authority also refers to the audited, but unpublished, financial statements for the year ended 30 June 2014 ('the 2014 Authority Accounts'). As submitted by the Authority, these financial statements disclose, in respect of the Project, that:[144]

(a) The Authority received capital funding from the State in the sum of $160,104,000.00.[145]

(b) In relation to 'income from transactions', the Authority received Grants in the total sum of $490,000.00.[146]

(c) The combined total of the figures in [45](a) and (b) above is slightly different from the relevant figure appearing in the particulars under [19](h) of the Authority's amended defence [AB 49]. If it is necessary, the Authority shall seek the Court's leave to amend those particulars accordingly.

(d) In relation to 'income from transactions', the Authority received rental income in the total sum of $150,000.00.[147]

(e) In relation to 'Works-in-Progress', the Authority expended a total of $57,746,000.00.[148]

(f) In relation to the purchase of properties, the Authority expended a total of $100,800,000.00.[149]

76 Thus, it can be seen that, apart from rental income received from properties acquired in connection with the Project, the Authority's sole source of income is funding from the State, in the form of Grants and Contributions. The rental income is small compared with the size of the Grants and, in any event, insignificant in terms of the relevant issues in this proceeding as the short term leasing of properties acquired in connection with the Project is not conduct in carrying on a business.[150] Were this not the case, it would mean that any commercial transaction entered into by a government or statutory authority would lead to the characterisation of the activity to which that commercial transaction related as the carrying on of a business. Thus, even the renting of relatively modest office accommodation would have this consequence. Clearly, the authorities do not support such a view. More specifically, the TI Act authorises the compulsory acquisition of land which is, or may be, required by the Authority 'for or in connection with the performance of its functions or the exercise of its powers'.[151] The MTPF Act also authorises the compulsory acquisition of land. The renting of compulsorily acquired land, or land otherwise required in connection with the Project is a temporary measure pending the development of the Project. Thus, the same considerations apply whether the government or statutory authority is the landlord or the tenant. Adopting the approach of Sundberg J in Sirway, such conduct is properly characterised as incidental to the core function of the Authority as provided for in the TI Act.[152]

77 The Annual Report for 2013 identifies the Authority's activities in the financial year ended 30 June 2013.[153] The disclosed activities do, in my view, as contended by the Authority, show that it is not carrying on a business in relation to the Project and that it has never carried on a business in relation to the Project. In my view, the same follows with respect to the contents of the Annual Report for 2012, which identifies the Authority's activities in the financial year ended 30 June 2012.[154] Moreover, in relation to these activities, the Authority contends that:

(a) The activities relate to the planning and construction of a public roadway pursuant to statutory powers and duties. As noted above, such activities are the function of government rather than trade or commerce.

(b) The activities do not take place in a competitive and commercial context. The activities - including the activities relating to the procurement and assessment of tenders[155] - do not bear a business character.[156]

(c) The activities have not been sufficiently systematic and regular to justify being characterised as a business. By way of example only, the preparation of a Cultural Heritage Management Plan for an area of land pursuant to s 42 the Aboriginal Heritage Act 2006 (Vic) is a one-off activity designed to protect Aboriginal cultural heritage. In respect of this activity and like activities, there is no disclosed repetition, system and regularity.[157]

(d) Further, the activities have not been sufficiently similar to commercial activities in which private persons might have engaged.[158]

For the preceding reasons, I am of the opinion that the Authority's contentions in this respect are established for the reasons and on the basis of the material relied upon. The same applies with respect to the activities disclosed in the 2014 Authority Accounts.[159]

78 The Authority has pleaded all of the instances in which it published the documents relevant to the plaintiff's allegations of impugned conduct; and the plaintiff has accepted that the Authority has pleaded each and every instance of that conduct.[160]

79 The Authority contends that the nature and purpose of each relevant document is apparent from the statutory framework in accordance with which each document was produced and published; and the contents of each document, considered in light of the statutory framework. The Authority says that these matters demonstrate that the conduct so clearly relates to the execution of a government function that is in the interests of the community. Accordingly, the Authority submits that in publishing and, or alternatively, circulating each of these documents, it did not engage in conduct 'in trade or commerce'[161] or, for the preceding reasons, nor did publication or, alternatively, circulating each of these documents amount to the carrying on of a business. For the preceding reasons, and those considered in further detail below, this follows from the contents of the particular document; the circumstances in which the document was prepared and published; and the primary purpose for which it was prepared and published. On this basis, I turn now to consider these matters with respect to each of the documents.

80 The publication of the CIS related to the execution of a government function within the statutory framework applicable to the Authority. This is clear from the relevant provisions of Division 5 of Part 3 of the MTPF Act; the matters pleaded with respect to the CIS in the Authority's defence;[162] and the Authority's role as the 'project proponent' for the Project under the MTPF Act. For these reasons, it is clear, in my view, that in publishing the CIS, the Authority was discharging a statutory function and not acting in a business or commercial capacity. Furthermore, as an 'interface body' dealing with a matter of significance, being the planning process relating to the Project, it was required to comply with the stakeholder engagement requirement. The mere fact that the Authority conducted statutory functions in a 'businesslike' manner is not to the point.[163] Moreover, the contents of the CIS do not have the incidents of a commercial activity.

81 The publication of the Transport Summary Report does, in my view, as contended by the Authority, follow from the core functions of the Authority, particularly that provided for in sub-s 138(2)(a) of the TI Act; its role as the 'project proponent' for the Project under the MTPF Act; its role as an 'interface body' within the meaning of the TI Act; its role as a 'transport body' within the meaning of the TI Act; and the matters pleaded in the Authority's Defence with respect to this Report and what has been characterised in the pleadings as the traffic volume representation.[164] Moreover, the contents of the transport summary report do not have the incidents of commercial activity. In particular, the heading 'Understanding the Project', which appears on page 3 of the Report, reflects the nature and purpose of the document. Like the CIS, it is not a promotional document. Rather, the nature and contents of this document accord with the Authority's stakeholder engagement obligations under the TI Act.

82 Turning now to the Executive Summary, the Authority says in relation to this document:[165]

(a) On 1 July 2013, the LMA published this document on its website. It has remained on the LMA's website since that first publication. As a result of the mode and place of publication, the LMA published this document to the world at large. It was not aimed at any particular person.

(b) The Executive Summary arose from a detailed analysis of the case for a public asset investment commitment in respect of the EWL (Eastern Section) Project.[166]

(c) That detailed analysis was undertaken so that the State could make an informed decision whether to construct public infrastructure. This is a matter of prudent government business rather than business based on trade or commerce. The 2012-2013 Annual Report explains the LMA's role in the preparation of the detailed business case relating to the Project.[167]

(d) This publication relates to the execution of a government function, viz. the delivery of public infrastructure. Moreover, it reflects the LMA's efforts to engage with stakeholders in accordance with the TIA.[168]

(e) The contents of this document do not have the incidents of a commercial activity. It is a general document geared to providing high-level information to stakeholders and all other Victorians (for whose benefit the TIA was enacted).

(f) There are other instances where the LMA and its agents have made the BCR Representation through the publication of the Executive Summary.[169] By way of example only, the LMA refers to the instance pleaded in [21A](e) of its amended defence. The email in question obviously relates to the LMA's stakeholder engagement obligation. It is also consistent with the decision-making principles specified in ss 20 and 21 of the TIA. The same points apply to the other instances in [21A] of the LMA's amended defence.

The Authority also contends that the Executive Summary is not a promotional document. Rather, it submits that the contents of the document show that:[170]

• It does not promote a 'business' bearing a trading or commercial character.
• It does not seek to promote the ultimate operation of the Project as a tollway.
• It does not seek to persuade investors to invest in the Project or any business connected with the Project. Indeed, the document does not identify any Project-related business in which anyone might invest.
• It does not promote the Project to the Bidders (or any other trader or consultant capable of contributing to the Project's delivery).
• It is not analogous to a prospectus within the meaning of Chapter 7 of the Corporations Act 2001 (Cth).

In my view, the contentions of the Authority set out above must be accepted for the reasons advanced and the material relied upon in those submissions in addition to the preceding reasons in these reasons for judgment.

83 There is also the additional consideration that the Bidders have disavowed any reliance on the Executive Summary.[171] Moreover, there is no allegation, or even any suggestion, that any other third party has complained about the contents of the document. As contended by the Authority, given the nature and contents of the document, none of this is surprising. Given the size and cost of the Project, it is simply implausible to suggest that the Executive Summary could mislead or deceive any third party considering substantial commitment of time and, or alternatively, money in bidding for or otherwise being involved in the construction of the Project. Any suggestion to the contrary is simply not credible and devoid of any commercial reality.

84 The question whether either or both of the defendants made the representations alleged in paragraphs 21, 25, 29 and 33 of the FASOC in trade or commerce for the purposes of the ACL is the subject of the second of the separate questions, which is in the following terms:

(2) Assuming that each Defendant made each of the Representations (which is not admitted for the purpose of the trial of the separate questions), was that conduct in trade or commerce for the purposes of s 18 of the Australian Consumer Law (the ACL), applying as a law of Victoria pursuant to s 8 of the Fair Trading Act?

85 Section 18 of the ACL is in the following terms:

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.

...

86 As is clear from the preceding reasons, both the State and the Authority deny that they were carrying on business at any relevant time and, consequently, they say that it matters not whether any of their activities might otherwise be regarded as 'in trade or commerce'. For the preceding reasons I am of the opinion that neither the State nor the Authority were carrying on business at any relevant time, so the provisions of s 16 of the ACL Victoria are not enlivened and, consequently, the ACL does not apply and the plaintiff's case falls away. The 'trade or commerce' question thus becomes purely academic and leads nowhere. Nevertheless, as one of the separate questions it is to be considered, as the answer may have significance if a different view were taken with respect to the first question.

87 The meaning of the expression 'in trade or commerce' has been considered extensively in the context of the legislation which s 18 of the ACL re-enacts, namely, s 52 of the TPA. For the purpose of considering the various authorities, it is, in my view, helpful to consider them in terms of the three propositions concerning trade and commerce which the State contends emerge from these authorities and which are relevant to this proceeding.

88 The first proposition is that the expression 'in trade or commerce' is to be read narrowly, rather than broadly. It is well established that the terms 'trade' and 'commerce' are not terms of art but are expressions of fact and terms of common knowledge of the widest import.[172] In s 18 of the ACL, the terms 'trade or commerce' are prefaced by the preposition 'in,' the effect of which is to limit the operation of the provision. Thus, the majority of the High Court said in Concrete Constructions (NSW) Pty Ltd v Nelson,[173] that the expression 'in trade or commerce' has a 'restrictive operation'. In this respect, the majority said:[174]

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 NSW v The Commonwealth, 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.

...

Indeed, in the context of Pt V of the Act with its heading "Consumer Protection", it is plain that s 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.

...

[footnotes omitted].

89 It is clear from Concrete Constructions that the challenged conduct must take place in a situation that fairly answers the description 'in trade or commerce'.[175] It is not sufficient if the conduct occurs 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.'[176] Dealings with prospective customers may fall within the ambit of s 18 of the ACL because, as the majority observed in that case, conduct 'in trade or commerce' includes promotional activities relating to the supply of goods or services to potential customers.[177]

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.

Nevertheless, it is necessary to identify with some degree of precision the particular conduct in issue in proceedings, in order to determine whether that particular conduct can be characterised as having been performed 'in trade or commerce'.[178]

90 Concrete Constructions concerned an employee of a construction company who suffered injuries after falling through an air conditioning shaft. The foreman on duty had instructed the employee to remove certain grates from an air conditioning shaft and had told the employee that each grate was secured by bolts. The employee alleged that the grates were not secured as represented by the foreman, and that while he was removing one of the grates, it gave way, causing him to fall down the shaft. The majority found that the dealings between the employee and the foreman did not, of their nature, bear a trading or commercial character and thus were not 'in trade or commerce'. The alleged misleading conduct consisted of 'an internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building.'[179] The foreman's statement to the employee was therefore not conduct in trade or commerce.

91 The majority judgment refers to the hypothetical example of a truck driver operating a vehicle on or around a construction site. Mason CJ, Dean, Dawson and Gaudron JJ caution that 'the dividing line between what is and what is not conduct "in trade or commerce" may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character.' Their Honours continued:[180]

The driving of a truck for the delivery of goods to a consumer and the construction of a building for another pursuant to a building contract are, no doubt, trade or commerce in so far as the relationship between supplier and actual or potential customer or between builder and building owner is concerned. That being so, to drive a truck with a competitor's name upon it in order to mislead the customer or to conceal a defect in a building for the purpose of deceiving the building owner may well constitute misleading or deceptive conduct "in trade or commerce" for the purposes of s 52. On the other hand, the mere driving of a truck or construction of a building is not, without more, trade or commerce and to engage in conduct in the course of those activities which is divorced from any relevant actual or potential trading or commercial relationship or dealing will not, of itself, constitute conduct "in trade or commerce" for the purposes of that section. That being so, the giving of a misleading hand signal by the driver of one of its trucks is not, in the relevant sense, conduct by a corporation "in trade or commerce". Nor, without more, is a misleading statement by one of a building company's own employees to another employee in the course of their ordinary activities. The position might well be different if the misleading statement was made in the course of, or for the purposes of, some trading or commercial dealing between the corporation and the particular employee.

92 The hypothetical example of the truck driver making incorrect hand signals was highlighted by Hely J in Port Kembla Coal Terminal Ltd v Braverus Maritime Inc.[181] That case concerned Captain James, who was piloting the SA Fortius, a Capsize bulk carrier, when it collided with a coal berth in Port Kembla inner harbour. Braverus Maritime Inc ("Braverus") was the owner of the Fortius, and Port Kembla Coal Terminal Ltd ("Port Kembla") leased and occupied the coal berth. Fortius had been chartered to lift a cargo of 130,000 tons of coal from Newcastle and Port Kembla for discharge at Rotterdam. The central point, in so far as Braverus was concerned, was that Port Kembla had provided Braverus with the services of Captain James for a fee. Braverus alleged that Captain James had practical control of the Fortius and that by his navigational commands, inaction and failure properly to inform and interact with the master in the conduct of the vessel, he misled the master of the ship. Moreover, Port Kembla had held Captain James out to be a pilot licensed for the conduct of vessels in Port Kembla, when in fact, he held no such licence. Hely J found that the alleged misleading conduct had not taken place in trade or commerce, and said:

But it does not follow that the conduct relied upon to found this particular claim (that is, the acts and omissions of Captain James while piloting the Fortius) was conduct in trade or commerce. There are two reasons why Captain James' conduct does not satisfy that description. First, the pilot was purporting to carry out the statutory functions of a pilot under the PCWM Act. That was not a function which is itself an aspect or element of activities which bear a trading or commercial character: see Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106; (2001) 123 FCR 62 at 109 per von Doussa J. Second, the acts or omissions of Captain James while piloting the Fortius are analogous to the incorrect hand signals given by a driver of a truck in the course of a carrier's haulage business which were held by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 at 602-3 ; [1990] HCA 17; 92 ALR 193 at 196-7 ; [1990] HCA 17; 17 IPR 39at 42-3 per Mason CJ, Deane, Dawson and Gaudron JJ, not to fall within the words "in trade or commerce". As von Doussa J observed in Chapman (at 109), just because a person "is carrying out work of a professional nature in performing that [statutory] function, and is being remunerated for doing so, does not transform the function into an activity which bears a trading or commercial character". His Honour's observation is apposite here.

93 On appeal, Tamberlin, Mansfield and Allsop JJ found that the impugned conduct was in trade or commerce.[182] Their Honours considered NT Power Generation Pty Ltd v Power and Water Authority and noted that Port Kembla was a state owned corporation, and therefore subject to the State Owned Corporations Act 1989 (NSW), and the Ports Corporatisation and Waterways Management Act 1995 (NSW). Their Honours said:[183]

Taking a similar approach to the evidence in the present case, we consider that the conduct of the pilot in carrying out the pilotage was in trade or commerce. The legislation and the records of the Corporation point strongly to this conclusion. Section 9 of the PCWM Act states that one of the principal objectives of a State-owned corporation is to be a successful business, including to operate as efficiently as any comparable business in order to maximise the net worth of the State's investment in the corporation. This is a commercial objective. Another objective of a State-owned corporation is to facilitate and promote trade through its port facilities. The concept of "promotion" has a trading and commercial flavour.

...

This material, in our view, establishes the following:

- the Corporation [Port Kembla] has a statutory obligation to operate at least as efficiently as a comparable business;

- the Corporation's website refers to its capability to handle anything from coastal services to cape vessels;

- the charges for pilotage services are subject to the Corporation's terms of trade and the charge rate takes into account the skill factor for piloting large vessels;

- the Corporation charges significant fees for the pilotage service;

- from 1995/1996, the Corporation's revenues from pilotage have been in excess of $2 million per financial year;

- the Corporation pays GST on its charges;

- the Corporation treats pilotage services as part of its "core business";

- pilotage revenue is treated as a high revenue business line and the Corporation reports to its share holders as to actual results, including for pilotage income, as against budget;

- in its Annual Reports from 1996 to 2001, income derived from the provision of pilotage services is recognised as revenue of the Corporation;

- the Corporation adjusts its pricing policy to make it competitive with comparable ports;

- the Corporation monitors prices charged by other ports for pilotage services to attract business; and

- the Corporation perceives itself to conduct a commercial pilotage operation and acts accordingly.

In light of these features, we are persuaded that the Corporation, on its own admissions and records and having regard to the legislation and manner of providing pilotage services in this case, was engaged in trade or commerce. It is evident that the pilotage was carried out in the broader context of providing services for a ship that was engaged in trade or commerce and where the Port Kembla Coal Terminal was also engaged in trade or commerce.

94 Returning to the decision of the High Court in Concrete Constructions, a most helpful analysis of the judgments in that case can be found in Plimer v Roberts[184] where Lindgren J observed:[185]

All five members of the High Court agreed that the function of the expression "in trade or commerce" in s 52 of the TP Act, was to limit the scope of the kind of misleading or deceptive conduct caught by the section. However, they achieved that result in different ways. In their joint judgment, Mason CJ, Deane, Dawson and Gaudron JJ, held that the heading "Consumer Protection" to Pt V of the TP Act (in which Part, s 52 occurs) does not have the effect of confining the operation of s 52 to "cases involving the protection of consumers alone" (at 602). Their Honours accepted, however, that the heading "Consumer Protection" influenced the effect of the words "in trade or commerce".

...

Brennan, Toohey and McHugh JJ delivered separate judgments. They agreed with the joint judgment's conclusions that the foreman's statement was not made in trade or commerce. In various ways, however, their Honours did not find it necessary to limit the impugned conduct by reference to "the central conception" of trade or commerce. They substituted other limiting factors. Brennan and McHugh JJ found the limitation in a requirement that the conduct proscribed must be conduct which misleads or deceives, or is likely to mislead or deceive, a person in his or capacity as a consumer. Their Honours' view was that it sufficed that the impugned conduct took place in the course of a trading or commercial activity or transaction as, they conceded, it did in the case before them, provided always it misled or deceived a person in that capacity or was likely to do so. The foreman's statement was not made to his co-employee in the latter's capacity as a consumer.

Toohey J agreed with Brennan and McHugh JJ that s 52 of the TP Act was aimed at "conduct...deceptive of persons in their capacity as consumers of goods and services" (at 614) and that the foreman's statement to his co-employee did not merit that description. As well, however, his Honour thought that the section caught only conduct that was engaged in "as part of" someone's trade or commerce, and that although the foreman's statements were made "in relation to" or "in respect of" his employer's trade or commerce (the construction of buildings for others), they were not made "as part of" that trade or commerce.

95 Lindgren J reasoned, and, with respect, correctly in my view, that the narrow construction of the expression 'in trade or commerce,' adopted by the majority of the High Court in Concrete Constructions, governed the construction of s 42 of the Fair Trading Act (NSW).[186] His Honour said:

Nonetheless, in my opinion, for three reasons, but subject to any effect of the definition of the expression "trade or commerce" in the FTA (NSW) (discussed later), the "narrow" construction of the expression adopted in the joint judgment in Concrete Constructions governs the construction of the same expression in s 42 of the FTA (NSW). First, the "Consumer Protection" heading of Pt V of the TP Act was only one of several matters relied on in the joint judgment to support the construction favoured by its authors. Secondly, the heading of Pt 5 of the FTA (NSW), "Fair trading", supports a construction that limits the prohibitions in that Part by reference to a person's or organisation's dealings (perhaps only trading) with others. Thirdly, their Honours perceived (at 602) "[t]he real problem involved in the construction of s 52" (which they resolved) to arise from the use of the word "in", and that same preposition also indicates, in an identical context, the relationship between "conduct" and "trade or commerce" in s 42 of the FTA (NSW).

96 Plimer v Roberts concerned false representations made by Dr Roberts, a ordained Christian Minister, and doctor of Christian education, who believed that he had located the site of Noah's Ark at Akyayla, near Mt Ararat, Turkey. Dr Roberts was found by the trial judge to have made three false representations during a public lecture, that (i) Dr Roberts carried out archaeological and scientific work regarding the site; (ii) Dr Roberts had used powerful metal detectors to carry out original research into the site, and (iii) Dr Roberts carefully scrutinised artefacts found at the site, including using radio-carbon dating.[187] At first instance, Sackville J found that the impugned conduct was not in trade or commerce.[188] The Full Court of the Federal Court upheld Sackville J's finding that Dr Roberts' representations had not taken place in trade or commerce. Lindgren J found that the representations were made as part of the lecture, which was 'not inherently a trading or commercial activity.' The Noah's Ark Research Foundation, which had organised the lecture series, charged admission to the lecture, and sold merchandise. Lindgren J delineated Dr Roberts' representations as occurring within the confines of the lecture, and not as part of the activities of the Noah's Ark Research Foundation. His Honour said:[189]

While there is much to be said in favour of the proposition that NARF's activity in selling the door tickets, videotapes and audio cassettes was conduct in trade or commerce, I find it unnecessary to decide whether it was. I shall assume that it was. (On the hearing of the appeal, counsel for Dr Roberts may have conceded that it was, but the terms of the concession were unclear). In my opinion, Dr Roberts' misrepresentations did not take place "in" that supposed trade or commerce of NARF.

The delivery of the lectures was not inherently a trading or commercial activity. The misrepresentations, made in the course of the giving of them, were not in the nature of a promotion of NARF's selling of door tickets or videotapes or audio cassettes. The misrepresentations were no different, in the present respect, from misrepresentations made in the course of the giving of lectures of addresses in many familiar factual settings. A professor delivers a lecture to university students; an academic or other person presents a paper at a conference or seminar held for the practitioners of a profession; a public figure addresses a crowd in a hall. Assume that in each case the speaker is not paid but understands that the institution or organisation which has arranged the event is making an admission charge or will sell various recorded forms of the lecture or address, or both. In such cases, what is said in the course of the delivery of the lecture or address will not ordinarily be "in" trade or commerce, even if the charging and selling by the institution or organisation is. Dr Roberts' misrepresentations were not placed "in trade or commerce" by the fact that, to his knowledge, an admission charge was being imposed and audio and video recordings were being made and were to be sold.

97 In Hearn v O'Rourke,[190] the Full Court of the Federal Court considered a false representation made by a documentary film maker ("the First Respondent") to two interviewees. The First Respondent was the director of a film making company, the second respondent, and was engaged in the production of a documentary about life in Cunnamulla, in far south-west Queensland. The interviewees were both girls, aged 13 and 15 years old respectively. The First Respondent enticed the interviewees, and their parents, to grant the interviews on the basis that the one interview would relate to a beauty pageant, and the other would relate to racism in the town. In fact, the First Respondent intended to interview the girls about their sexual activities, and did so. The documentary was subsequently released for sale, and the interviewees claimed damages for humiliation and suffering. The trial judge, Kiefel J, found that the conduct was not in trade or commerce because 'the conduct did not bear a commercial character, and there was no commercial relationship between the applicants and the respondents'.[191] On appeal, Finn and Jacobson JJ overturned the trial judge's decision, finding that the conduct was in trade or commerce. Delivering a joint judgment, Finn and Jacobson JJ said:[192]

There could be no documentary unless appropriate interviews were secured. Securing such interviews, in our view, could properly be said to be central to the trading or commercial activity in which the second respondent was engaged in producing a film for profit. Correspondingly, the conduct engaged in by the first respondent for that purpose could itself be found to be in trade or commerce.

98 In my view, the narrow interpretation of the expression 'in trade or commerce' governs s 18 of the ACL. Chapter 2 of the ACL is headed 'General Protection', which differs from the expression 'Consumer Protection' of Pt V of the TPA and 'Fair trading' of Pt 5 the Fair Trading Acts (NSW). Nevertheless, the expression 'in trade or commerce' is cognate in each statute. In my opinion, the narrow construction of 'in trade or commerce' adopted in Concrete Constructions governs the construction of s 18 of the ACL. As observed by Lindgren J in the passages set out previously,[193] the heading of Pt V of the TP Act was only one of several matters relied on by the majority in Concrete Constructions. Further, the applicability of Concrete Constructions to the expression 'in trade or commerce' in s 18 of the Australian Consumer Law, and other legislation, is consonant with recent case law.[194]

99 The second aspect or proposition is that, as with the 'carrying on of a business' question, there may, in any particular case, be a temporal issue in relation to the 'trade or commerce' question. Thus, to be 'in trade or commerce', the impugned conduct must coincide with the conduct of trade or commerce. Consequently, as held in Auswest Timbers Pty Ltd v Secretary to the Department of Sustainability and Environment:[195] 'It is clear that the mere "potential" for trade or commerce is not sufficient, in the sense of conduct preceding the activity or transaction which bears a trading or commercial character.' The plaintiff asserts that communication of information by company directors to shareholders, in relation to a proposed transaction, is conduct in trade or commerce, and relies for this proposition on the decision of French J (as the Chief Justice then was) in Orison Pty Ltd v Strategic Minerals Corporation NL.[196] In that case, the shareholders of a trading corporation, Strategic, had resolved at an extraordinary general meeting that Strategic would acquire the issued capital of another company. The plaintiff, a shareholder, alleged that the directors had circulated misleading information as to the asset backing of the target company. French J held that such conduct is in trade or commerce, because the acquisition was of a significant asset, and the antecedent communication 'so closely related and necessary to the acquisition was also...within the scope of conduct in "trade or commerce" for the purposes of s 52.'[197] A communication in respect of a special resolution to acquire an asset is so proximate to the act of acquisition as to be squarely in the acquisition itself, and therefore, in trade or commerce. I note that Orison Pty Ltd v Strategic Minerals Corporation NL was decided prior to Concrete Constructions, which is not to say that the decisions are inconsistent.

100 The third proposition is that while recognising that the categories are not necessarily mutually exclusive,[198] 'political' conduct may often lack the necessary commercial character to constitute trade or commerce. Thus, in Unilan Holdings Pty Ltd v Kerin,[199] a speech by the Minister for Primary Industry and Energy to the International Wool Textile Organisation promising not to direct a reduction in the reserve price of wool was held not to be in trade or commerce. In Easts Van Villages Pty Ltd v Minister Administering the National Parks and Wildlife Act,[200] a media release by a Minister concerning the Minister's decision to evict a caravan park operator from land owned by the State was held not to be in trade or commerce. As Mathews AJ said in East Van Villages, citing Unilan Holdings Pty Ltd v Kerin:[201] 'On no view of the matter could the issue of that press release be seen to be part of any activity which bears a trading or commercial character.' In Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2),[202] community consultation and representation by an airport operator to inform and influence public opinion against a planning application adverse to the airport operator's interests was held not to be in trade or commerce.

101 In Powell v Tasmania,[203] the proprietor of land used as a Caltex Service Station alleged the Tasmanian Department of Roads and Transport had contravened s 52 of the TPA by representing that his land would be compulsorily acquired to make way for the construction of the Bass Highway. Crawford J found that the alleged misleading conduct was not in trade and commerce, but was part of a function of government.[204] His Honour said:[205]

I accept the submission of the defendant's counsel that governmental and departmental activities for the purpose of planning and constructing roads pursuant to statutory powers and duties are a function of government and not of trade or commerce. The authorising and empowering statute in this case was the Roads and Jetties Act 1935 which provided for such things as the declaration, by proclamation, of the intended new line of highways, the power to construct highways and roads and to enter onto land for that purpose, and the power to acquire land for the purpose of construction highways and roads. The process of acquisition was governed by the Land Acquisition Act 1993 or the previous legislation repealed by it. The announcement of plans for the new line of a highway, its construction and the land it is intended will be acquired for the purpose of constructing it, is not an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character and do not amount to conduct in trade or commerce.

102 In Mid Density Developments Pty Limited v Rockdale Municipal Council,[206] the Rockdale Municipal Council issued three certificates pursuant to the Environmental Planning and Assessment Act 1979 (NSW), relating to a property. One was issued to the vendor, and seen by the plaintiff, a property developer, who contracted to purchase the land. Two were issued to the plaintiff prior to completion of the contract. The certificates stated that the Council had no information which would indicate that the land was subject to the risk of flooding. In fact, the Council had information that the land was subject to flooding, and had issued certificates in respect of other properties in the vicinity stating that those properties were subject to the Council's Flood Management Policy. Davies J found that the issue of the certificates was not in trade or commerce. It was not a trading activity, 'but the performance of a statutory duty in respect of which the EPA permitted the charging of fees.'[207] Davies J reasoned that the 'carrying out of a function of government in the interests of the community is not a trading activity.'[208] The fact that the Council contracted out its garbage collection services, earned income from kerb and gutter reconstruction, and collected rents from the leasing of property did not affect that characterisation of the Council's activities.[209] Davies J said:[210]

Whatever debate there may be about these matters, it seems to me that, in the issuance of certificates under s 149, and in the discussions between Rockdale's officers and the officers of Mid Density, Rockdale was not acting in trade or commerce. Mr McDougall submitted that s 149 certificates are required at the time of the sale and purchase of real estate. He submitted that this was an activity in trade or commerce. However, that is not necessarily so. So many transactions in real estate are not carried out in the course of trade or commerce: see O'Brien v Smolonogov (1982) 53 ALR 107; Argy v Blunts (1990) 94 ALR 719.

103 Markit Pty Ltd v Commission v Taxation,[211] concerned an alleged false representation made by the Commissioner of Taxation. The Commissioner had instituted proceedings against the directors of Markit Pty Ltd for recovery of penalties imposed in consequence of alleged breaches of the directors' duties in respect of PAYE deductions. That proceeding was settled pursuant to a Deed of Settlement, which provided that Markit Pty Ltd would be entitled to collect from the Commissioner's solicitors certain documents. The Commissioner's solicitors gave an undertaking that they held the documents on behalf of the Commissioner. In fact, a Federal Agent had obtained a warrant to search the premises of the Commissioner's solicitors, and the documents were seized, and thus not available for collection. On an application by the Commissioner to strike out Markit Pty Ltd's claim under s 52 of the Trade Practices Act 1974, Muir J found that it was not arguable that the Commissioner was carrying on a business. Section 2C of the Trade Practices Act provided that the imposition or collection of a tax or a levy does not amount to the carrying on of a business.[212] Muir J rejected Markit Pty Ltd's argument that collecting taxes is 'limited to the issuing of notices of assessment and the receipt of moneys paid in consequence of the assessment or in response to a demand, or demands made after the taxpayer's failure to pay by the due date.' His Honour said:[213]

Recourse to legal proceedings by the Commissioner for the recovery of taxes due by a taxpayer does not warrant the conclusion that the Commissioner's activities can no longer be regarded as the collection of taxes. Such litigation is simply the means by which the taxes are collected. The character of the Commissioner's activities in this regard is not changed because the process of collection is rendered more complex and indirect through a taxpayer's failure to pay. The same observation applies where, in order to collect taxes which are due and owing by a corporate taxpayer, the Commissioner causes the taxpayer to be wound up.

Further, the representations were not made in trade or commerce:[214]

For the reasons explained earlier, the subject activities of the Commissioner are governmental in nature. The fact that, in the course of collecting taxes, penalties and superannuation levies, the Commissioner resorts to the sorts of action a commercial enterprise would take in order to recover moneys owing to it does not cause the Commissioner's conduct to "bear a trading or commercial character". The Commissioner's conduct must be considered in the light of his statutory function and undertaking.

104 A contrasting case is Meadow Gem Pty Ltd v ANZ Executors and Trustee Co Ltd[215] which, in part, concerned public statements made on behalf of the State of Victoria by the Registrar of Building Societies, the Attorney-General and the Treasurer, regarding the financial position of the Pyramid Building Society Ltd ("Pyramid"). It was alleged that the Registrar of Building Societies represented, amongst other things, that that building society was secure, adequately asset backed, and that there was no risk to investors. Similarly, the Attorney-General and the Treasurer were alleged to have made representations including that depositors' funds and investments in the building society were secure, there was no reason for people to withdraw funds or dispose of their investments, that the building society was responsibly managed and had adequate asset backing, and that there had been ongoing monitoring of the building society which had revealed nothing of concern. On 24 June 1990, Pyramid's operations were suspended, and it ceased trading. The State of Victoria applied for summary judgment on the ground that the representations were not made in trade or commerce. Hedigan J found against the State. It was arguable that the impugned conduct was in trade and commerce as '[t]he conduct in question does not have to be conduct in connection with one's own business...it would be sufficient if the conduct engaged in was for the purpose of promoting the business of some other person or corporation.'[216] Hedigan J reasoned that it was possible to distinguish Unilan Holdings Pty Ltd v Kerin[217] 'as Mr Kerin's speech was dealing with Government policy and was not specifically dealing with any identifiable conduct which itself had a trading or commercial character.'[218] His Honour said:[219]

In the present case the representations made...were directly addressed to and supportive of the affairs of a trading and financial corporation and therefore are more easily identifiable as representations made in the trade or commerce of a building society. It appeared to be accepted by Mr Santamaria that the conduct in question does not have to be conduct in connection with one's own business or activity but may be sufficient if it was engaged in for the purpose of promoting the business for some other purposeful corporation. Without finally deciding any issue concerning this, it would seem to me to be at least arguable that "promotion" is sufficiently wide to encompass conduct encouraging the continuation of investment in a trading corporation. Indeed, without being further instructed, it is not easy to imagine a clearer case of such promotion or encouragement since the Government itself was not directly involved in the profit or loss of the business of Pyramid and/or the associated companies and was apparently in the position of the detached State bystander who had conducted its own objective studies and it reached the conclusion that Pyramid was in good shape. It is arguable that the statements were made with the intention of encouraging investors to maintain their trading relationship with Pyramid: see too Glorie v WA Chip and Pulp Co [1981] FCA 224; (1981) 55 FLR 310 and Meates v Attorney General 1983 NZLR 308.

Ultimately, however, the question was left unresolved, given the plaintiff needed only to show an arguable case. Lauren v Jolly,[220] which also concerned the Pyramid collapse, involved a similar application for summary judgment. In that case, the plaintiff was the holder of 115,000 non-withdrawable investing shares, which were rendered worthless following the suspension of Pyramid's trading. The plaintiff claimed that the Registrar of Building Societies, the Attorney-General, the Treasurer and the State of Victoria, had contravened s 11 of the Fair Trading Act 1985 and s 52 of the Trade Practices Act 1974. The government parties applied for summary judgment on the basis that the representations were not made in trade and commerce. Applying Concrete Constructions, Beach J found that the plaintiff's claim was arguable, and said:

In my opinion the passage in Concrete Constructions to which I have referred is arguably authority for the proposition that the conduct in question does not have to be conduct in connection with one's own business, it will be sufficient if the conduct engaged in was for the purposes of promoting the business of some other person or corporation. In the present case, I consider it is arguable that the representations made by the defendants Jolly, McCutcheon and Lafranchi were made for that purpose, that is to promote the business of Pyramid. In that situation the application by those defendant's and the State of Victoria to strike out the paragraphs in the plaintiff's statement of claim alleging breaches of s 11 of the Fair Trading Act must fail.

105 Glorie v WA Chip & Pulp Co Pty Ltd[221] concerned a film entitled 'Forests Forever", which was produced jointly by the Western Australian Forests Department, the Forest Products Association (WA), WA Chip & Pulp Co Pty Ltd, and a collection of individuals. The film concerned the Western Australian forestry industry and contained numerous statements alleged to be misleading. Morling J found that the production of the film was in trade or commerce because '[t]he film was produced as part of the activities of the trade association of which the first respondent (WA Chip & Pulp Co Pty Ltd) was a member.'[222] His Honour said:

The impetus for its production came, in part, from the desire to answer criticism of the industry. It was prudent, if not necessary, that such criticism be answered in order that the commercial interests of members of the Association might be protected. The evidence clearly shows that the production of the film was seen as a public-relations exercise, which plainly it was. The involvement of the Forests Department in the production of the film did not make it any the less a trade or commercial activity of the Association. The first respondent carries on substantial woodchipping operations in Western Australia. The viability of those operations is almost totally dependent upon the supply of timber from the South West Forest. Public antipathy to the use of the forest as a source of supply of that timber could impose a serious threat to the company's future activities if it were to find expression in political or other pressure upon the government to change existing forestry management practices. Having regard to these considerations I am of the opinion that the film has been, and is intended to be exhibited in trade or commerce.

It is worth noting that Glorie v WA Chip & Pulp Co Pty Ltd was decided before Concrete Constructions. Presciently, Morling J acknowledged the ambiguity inherent in the expression 'in trade or commerce', saying:[223]

Different views have been expressed by text writers as to whether, in s 52(1), "in" means "within, as part of" or "in connection with" or "in relation to": see Donald & Heydon: Trade Practices Law, vol 2, p 520. But whatever meaning is attributed to "in" in this context, I think that the exhibition of the film is "in trade or commerce" within the meaning of that expression in s 52. It may be the case that not everything done by a corporation that is engaged in trade or commerce is done "in" trade or commerce. It was argued, for instance, that the mere doing of something to improve public knowledge of an industry's activities would not be conduct in trade or commerce. I doubt whether it is useful to generalize on this matter without reference to specific facts. In the present case, a real reason for exhibiting the film was to protect indirectly the commercial interest of the members of the Association, including the first respondent. In these circumstances, I think it is correct to characterize the exhibition of the film as being in trade or commerce.

106 The plaintiff submits that the Representations were 'promotional activities' and relies on the decisions in Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc,[224] Glorie v WA Chip & Pulp Co Pty Ltd,[225] Meadow Gem Pty Ltd v ANZ Executors and Trustee Co Ltd[226] and Lauren v Jolly,[227] which are discussed. The plaintiff provides four reasons as to why he says the Representations were promotional:

(i) the Representations are directed to the commercial viability of the Project, which requires a very significant investment of public funds;[228]

(ii) the public to whom the Representations are being made are the potential users and customers of the Tollway when it commences operation;[229]

(iii) the Representations were made to manage the commercial risk of public opposition to the Project and to build support for the Project;[230] and

(iv) the Representations were made by the Authority in the discharge of its inherently commercial object and function.[231]

107 In my opinion, the Representations are not promotional activities as contended for by the plaintiff. It is evident that the Representations are directed to the commercial viability of the Project. However, this does not necessarily imbue the conduct with a trading or commercial character. Governments routinely make announcements about the cost, and viability, of public works. Such announcements are designed to inform the public of the cost of the project to the public, and reassure the public that those costs are not wasted, that the project will not become a burden on the public revenue, and that some or all of the costs may be recouped. It does not follow that such an announcement is promotional of trade or commerce, in the same manner as the advertisement in Tobacco Institute of Australia Ltd, or the comments of the Registrar of Building Societies, Attorney-General and Treasurer in Meadow Gem Pty Ltd.

108 Additionally, in those cases, the trade or commerce being promoted existed at the time of the promotional representation. In this case, there is no trade, commerce or business being conducted at this time. To the extent that Representations are promotional, they are promotional with respect to the viability of public works, and not with respect to trade or commerce, or an ongoing business. Likewise, it is evident that the Representations are being made to the public, and that the public will be the users and customers of the tollway. But it does not follow that the Representations will or are intended to promote the use of the tollway by the public. There is no basis in terms of the Representations as alleged for concluding that they were designed or intended to affect the number of members of the public using the road once it opens. Consequently, it cannot be said that the Representations would or are intended to promote use of the road, hence, an increase in toll revenue, and are thus not promotional of any business. Moreover, common experience would suggest that people decide whether or not to utilize a toll road because it serves their travel plans and the user price, the toll, is attractive in terms of its absolute level and having regard to time saving and vehicle running costs. It is fanciful to suggest that any significant number of people would or would not use a toll road depending on whether or not they thought it was a "good" project.

109 Having regard to the authorities which have been considered in relation to the meaning of the expression 'in trade or commerce', temporal aspects and the necessary commercial character, I am of the view that none of the conduct on the part of the State, aside from the conduct of the State through the Authority, which the plaintiff seeks to impugn can be said to be conduct 'in trade or commerce'. In my view, the State's contention that all lacked the commercial character necessary to fall within that expression is correct. As the State submits, even if the Representations were made in the course of conducting the business of operating a tollway, which in any event the State denies, were to be 'in trade or commerce', that business has not yet commenced. Thus, all of the impugned conduct precedes any activity or transaction which bears a trading or commercial character. Moreover, so far as the media releases and letters to members of the public are concerned, these are clearly political in nature and not part of any activity which bears a trading or commercial character.

110 From the perspective of the Authority, its activities (which have been considered with respect to the carrying on business question) relate primarily to the facilitation of the development, delivery and operation of a public roadway pursuant to statutory powers and duties. As discussed previously, these activities are the function of government, rather than trade or commerce.[232]

111 The statutory foundation for the Authority's activities also reduces the significance of the tollway proposal with respect to the plaintiff's 'preparatory conduct' argument. Moreover, the plaintiff's submission that the Authority has inherently commercial objects and functions must be rejected.

112 The tollway is one of the proposed means by which the State may fund in part the delivery of the Project.[233] This funding method is an example of the user-pays principle - the application of which does not detract from the position that the tollway proposed will be the result of governmental activity in the interests of the community, including the users of the roadway. In my view, this is clear as a general proposition and, further, there is no question that, whatever funding method is adopted, the Project is being planned and delivered, in the view of the State and the Authority, in the interests of all Victorians.[234] As these proceedings indicate, there may well be different views in the community as to whether or not this is the case but, nevertheless, there is no basis for any contrary conclusion in the present proceedings. In any event, if the funding for the Project stems in part from the use of an income generating tollway, that funding source does not alter the Project's character as a piece of public infrastructure delivered in the interests of the community. Neither does it impinge upon or alter the core function of the Authority, which has already been considered in the context of relevant statutory provisions.[235]

113 The Authority also makes the point (as does the State, as indicated previously) that at its highest, the impugned conduct is incidental to future commercial activities, though it is the Authority's position that this conduct is not even preparatory to future trade or commerce.[236] Significantly, it is contended, those future commercial activities are incidental to the Authority's non-commercial object.[237]

114 Consequently, I accept on the basis of the authorities to which reference has been made and for the reasons advanced by the Authority in its submissions, that the impugned conduct on the part of the Authority is not conduct 'in trade or commerce'.

115 Finally, I am of the opinion that the publication of the relevant documents by the Authority is not properly characterised as its engaging in promotional activities which bear a trading or commercial character. I accept that this follows from the following matters raised by the Authority in its submissions:

(a) The CIS was produced and published in accordance with the planning scheme requirements embodied in the MTPF Act.

(b) The Transport Summary Report summarises the traffic and transport contents of the CIS. Like the CIS, this document does not promote a future 'business'.

(c) The publication of these documents accords with the principle of transparency to which s 21 of the TI Act refers.

(d) The Executive Summary is not a promotional document. The contents of that document which the Authority relies upon for this proposition have previously been set out.[238]

In my view, these matters indicate very clearly that this is an entirely different situation from that considered in Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc[239] where Hill J said:[240]

The present advertisement was not placed in one newspaper as an isolated incident. It was but one advertisement placed in a number of newspapers at the same time. The subject-matter of the advertisement is also of significance. Publication followed, so it was said by the appellant from the Bar table (the evidence before the court is not strong in the matter), the very public debate on passive smoking. The advertisement was not intended as a learned contribution to a scientific debate. It was not published in a learned scientific journal. It was directed to the public at large, smokers and non-smokers. It was couched in language designed to persuade, rather than to instruct. It seems highly unlikely that a corporation, lacking a significant commercial interest in the tobacco industry, would have gone to the expense of publishing advertisements in various newspapers of national circulation merely to influence public opinion on a debate of health policy. Rather it may be inferred, that the corporation which placed the advertisement did so to allay the fears of those who smoked and thus discouraged them from quitting and to discourage those who did not smoke from applying pressure on those who did to reduce the occasions on which they smoked, or perhaps give up altogether. In either way the advertisement on its face was designed either to promote the further sale of cigarettes or to arrest a decline in such sales.

116 For these reasons, I am satisfied that the Authority published the documents in question in discharge of statutory obligations and that their publication has not occurred in a business or commercial context.[241] Moreover, to the extent that the plaintiff relies on the 'potential' for trade or commerce, such potential is insufficient to render their publication as being 'in trade or commerce' for the purposes of s 18 of the ACL.

117 For the preceding reasons, I am of the opinion that the answers to the second of the separate questions, the "trade and commerce" question, must be "No".

118 The question whether, if either or both of the defendants made the representations alleged in paragraphs 21, 25, 29 and 33 of the FASOC, a basis is provided for a final injunction in the form sought by the plaintiff, is the subject of the third of the separate questions, which is in the following terms:

(3) Assuming that each Defendant made each of the Representations in contravention of s 18 of the ACL (as alleged in paragraphs 37 of the FASOC) (which is not admitted for the purpose of the trial of the separate questions), should a final injunction in the form of that sought in paragraphs B(b) and B(c) of the Prayer for Relief in the FASOC be given?

119 The relief sought, relevant to this third separate question, is set out in the prayer for relief contained in the FASOC in the following terms, in the context of paragraph B of the prayer:

1. Interlocutory and final injunctions restraining the State and the Authority from:

(a) publishing, relying on or otherwise making or relying upon any of the Representations, or one or more of the Representations, in trade or commerce, including:

(i) in the tendering process for the Project; and

(ii) in seeking funding and financing for the Project.

(b) entering into a contract with any third party in relation to the Project, including for the construction, funding or operation of the Tollway, in circumstances where the State and/or Authority has made the Representations (or one or more of the Representations) to the third party in the course, or for the purposes, of the procurement process.

(b)(c) proceeding to further implement or carry into effect the Project based upon a business case containing one or more of the Representations.

120 It is clear from the authorities that a final injunction granted by the Court should not be expressed in terms which are too broad and that, in particular, the injunction should bear upon the case proven and indicate clearly the conduct which is enjoined in a way which enables the party enjoined to know what, as a matter of fact, is expected of that party.[242]

121 In relation to the terms or scope of the injunction sought, the State does, in my view, properly observe that there is some difficulty in understanding them in this respect. More specifically, the State submits:[243]

(a) Paragraph B(b) is drafted in very broad terms. It does not specify a particular contract, or a particular third party, to which it would apply. Rather, it refers to "a contract" with "any third party". Moreover, it would apply (again, very broadly) to a contract with any third party "in relation to the Project", with the only ostensible limitation being "in circumstances where the State and/or the [LMA] has made the Representations (or one or more of the Representations) to the third party in the course, or for the purposes, of the procurement process". Paragraph B(b) is so broadly framed it cannot be said to have identified with adequate specificity the conduct to be restrained.

(b) Paragraph B(c) suffers from the same vice. It is unclear what is meant by "further implement" or "carry into effect", let alone what it might mean to do those things "based upon" a business case containing one or more of the Representations.

122 In any event, regardless of the precise extent of the injunctions sought, they would not, in my view, be available to the plaintiff even if the contraventions alleged were to be made out. Section 232(1) of the ACL provides that the Court 'may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute "a contravention of various provisions of that legislation, including a provision of Chapter 2, in which s 18 is to be found"'.[244]

123 Sub-sections 232(4) and (5) contain particular provisions addressed to the grant of an injunction restraining a person from engaging in conduct and restraining a person from carrying on a business, respectively. These provisions are in the following terms:

(4) The power of the court to grant an injunction under subsection (1) restraining a person from engaging in conduct may be exercised:

(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and

(b) whether or not the person has previously engaged in conduct of that kind; and

(c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.

(5) Without limiting subsection (1), the court may grant an injunction under that subsection restraining a person from carrying on a business or supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business):

(a) for a specified period; or

(b) except on specified terms and conditions.

124 Clearly, the power conferred under s 232 is broadly framed, but, as the authorities indicate, the power is subject to some limitations.[245] These limitations are to be understood in light of the case law that developed in relation to s 80 of the TPA.[246] The limitations of particular relevance in the present circumstances are that the relief should be designed to prevent a repetition of the contravening conduct and, further, that there must be a 'sufficient nexus' or relationship between the contravention and the injunction granted.

125 Before turning to these particular limitations, it is convenient and helpful to refer to an aspect of the Authority's submissions with respect to this question which address the nature and utility of relief of this kind:[247]

1. In this case, the plaintiff has emphasised his standing to seek relief for contraventions of s 18 of the ACL. In this regard, on different occasions, he has referred the Court to the High Court's decision in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591 ('Truth About Motorways').[248] There is no dispute in this regard.
2. However, Truth About Motorways also bears on the question of relief. In that case, Gummow J dealt with the question of relief.[249] His Honour said:

In many cases, the remedy sought under s 80 for a prohibitory injunction would have the character of enforcing present compliance or inducing future compliance with the norm of conduct imposed by s 52, and a declaration would provide consequential relief. In the present case, the mandatory injunction sought would be apt to counterbalance the injury to the public interest allegedly sustained by the publication of the Statement.

1. The plaintiff accepts the significance of these principles to the question of relief. In this regard, the LMA refers to one exchange at the hearing on 1 August 2014.[250] On that occasion, the following exchange occurred (underlining added):

MS RICHARDS: A member of the public, as much as anyone, it is a public right not to have a government engaged in carrying on a business, to misrepresent the benefits of a project when the public are being looked to, to fund that project.

HIS HONOUR: So you're saying that if - and speaking generally, if a government made a representation to a contractor in relation to a project which a member of the public thought or sought to establish it was misleading or deceptive. That was actionable, even though the contractor or potential contractor had no interest in pursuing that.

MS RICHARDS: Well, yes, that's the conclusion that Truth About Motorways takes one to, Your Honour.

HIS HONOUR: Yes, all right.

MS RICHARDS: It may be a matter that bears on relief, but in terms of the lawfulness of the representation, it makes no matter.

126 On the basis of these submissions by the Authority, which I accept for the reasons on the basis of the material relied upon, the utility of granting the relief sought would have to be doubted. Nevertheless, for the reasons which follow, this issue does not arise because I am of the opinion that the answer to the third of the separate questions, the 'relief sought' question, must be 'No'.

Preventing a repetition of the contravening conduct

127 In Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd,[251] Merkel J (as he then was) observed that:[252] '[i]t is within the scope and purpose of s 80 to grant injunctive relief which is designed to prevent a repetition of the conduct for which the relief is sought'. The Full Federal Court, in a subsequent decision, in BMW Australia Ltd v Australian Competition and Consumer Commission,[253] said:[254] "it is clear that the terms of any injunction based only on past conduct should be limited to restraining a repetition of precisely that conduct". It has also been held that this limitation applies to s 232 of the ACL.[255] The basis of this limitation was explained by the Full Court of the Federal Court in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd as follows:[256]

The purpose of the injunction will be to prevent, or at least to reduce the likelihood of, future infringement. Past misconduct will be relevant to the likelihood of future misconduct, to the extent that it demonstrates a "propensity" or "inclination" to infringe the relevant legislation. In many cases past conduct will give an indication of future intention. In the absence of past misconduct, a court may nevertheless infer an intention to offend in the future, such inference being based on other evidence. In many, perhaps most, cases the possibility of future misconduct will be the underlying rationale for injunctive relief. In all cases the width of the relief will reflect the state of the evidence, including reasonable inferences which may be drawn from it. That is not to overlook the power to grant injunctive relief in the absence of any threatened future misconduct. Prevention of future misconduct may be the most common reason for granting injunctive relief, but there may be other reasons. The likely severity of the consequences of an improbable future breach may be an example. However, in all cases, the injunctive relief must relate to the TPA.

128 In my view, these authorities do support the State's submission that an insuperable problem with paragraphs B(b) and B(c) of the plaintiff's prayer for relief is that, contrary to what was said in these cases, the injunctive relief sought is not limited to restraining a repetition of any alleged contravening conduct. The alleged contravening conduct, as asserted by the plaintiff, concerns four representations which, on the plaintiff's pleaded case, were made to the public or (in one case) by way of intergovernmental communication.[257] However, when one looks to paragraph B(b) of the prayer for relief, the plaintiff seeks to restrain entry into contracts with third parties. Moreover, paragraph B(c) would, if granted, restrain the State and the Authority from proceeding to further implement or carry into effect the Project. Thus, it is quite clear that the plaintiff is attempting to restrain classes of conduct that are entirely different from the contravening conduct alleged.

129 The general approach of the plaintiff and the difficulties with the plaintiff's case are also highlighted in the Authority's submissions that the plaintiff's case simply assumes that the impugned conduct has influenced, or will influence, the commercial conduct of third parties, including the Bidders. However, as the Authority submits, the facts pleaded in the Authority's amended defence undermine this assumption.[258] Moreover, the Authority joins with and supports the State's submissions in more general terms that the relief sought is cast well beyond the scope of the plaintiff's case with respect to the impugned conduct.

130 It follows, for the preceding reasons, that the separate question with respect to the relief sought should be answered in the negative. There are, however, further reasons, to which I now turn, which also require a negative response to this question.

131 It is clear from the authorities that any injunctive relief must 'relate to the TPA' in the sense articulated by Gummow J in ICI Australia Operations Pty Ltd v Trade Practices Commission:[259]

The power of the court to grant an injunction is controlled by the words "in such terms as the Court determines to be appropriate".

Thus, the terms of the injunction will not be "appropriate" if, on its face, it operates upon a range of conduct some of which does, but some of which does not, have the relationship required by s 80 with contravention of the Act. The injunction should not prohibit conduct falling outside the boundaries drawn by s 80. The same limitation applies to mandatory injunctive relief. It is, in my view, no support for the grant of an injunction which, from the outset, has an operation outside the boundaries of s 80, to say that it is open for the party enjoined to apply under s 80(3) to vary the injunction so as to bring its operation wholly within proper limits. The party in question should not be placed under any such obligation in the first place.

The requirement of such a relationship has also been referred to as a 'sufficient nexus' requirement;[260] a requirement or limitation which also applies to s 232 of the ACL.[261] Moreover, in ACCC v Z-Tek Computer Pty Ltd, Merkel J (as he then was) both addressed the relationship requirements referred to by Gummow J in ICI and also explained and described the content of the 'sufficient nexus' requirement, as follows:[262]

The width of the power conferred by s 80 and its public interest character obviously give the Court great amplitude in determining appropriate injunctive orders in a particular case. However, there are limitations on the Court's power under the section. Confinement of the power by reference to the scope and purpose of the TPA, and in particular s 80, is one limitation on the power. However, there are at least two further limitations. The power to make orders under s 80 is only enlivened in a proceeding which alleges that there has been a contravention of a provision of Part IV, IVA or V of the TPA. As was said by Gummow J in ICI at 267, the terms of an injunction granted under s 80 must, on their face, operate upon a range of conduct which has "the relationship required by s 80 with contravention of the Act". Irrespective of whether the injunction is sought or granted under s 80(1) or 80(1AA) there must be a nexus between the conduct alleged or found to constitute the relevant contraventions and the injunctions granted.

[T]here must be a sufficient nexus or relationship between the contravention and the injunction granted. It is that nexus or relationship that enables determination by the Court of whether the injunction sought is "appropriate."

The nexus requirement is 'a specific reflection of Lockhart J's insistence that the power [to grant injunctive relief] be exercised "judicially"'.[264]

132 The plaintiff acknowledges that the Court's power to grant injunctive relief is constrained by the requirement for a nexus between the conduct alleged or found to constitute the relevant contravention, and the injunctions granted.[265] However, '[i]f the Court considers that an injunction that goes beyond the specific contraventions found is required to protect the public, it has the power to grant such an injunction.'[266] The plaintiff justifies the grant of the injunctions sought as follows:[267]

70. There is a nexus between the making of the Representations, including to the public at large, and the relief sought. The public are the investors in a substantial commercial project, and its ultimate users and customers. They have, it is to be assumed, been misled, by the State and the Authority, potentially in a very serious or significant way, as to the potential benefits of the project. There is a clear nexus between this conduct and both of the injunctions seeking to restrain the implementation of the Project.

71. Further, there is an obvious nexus between the making of the BCR representation, the Net Benefit representation and the Standard Methodology representation to the tenderers, and the injunctions sought to restrain implementation of the Project and the signing of contracts.

The plaintiff's attempt to find any relevant nexus does, however, fail; both for the more particular reasons which follow and also on a more general basis. As to the latter, the nexus sought to be made is premised on the assumption or assertion which I have rejected, namely that the project is anything other than a function of government. Consequently, the analogy sought to be drawn between the citizens of the State and investors, users and customers, is unhelpful and at odds with the approach of the authorities which have been considered with respect to the functions of government. Moreover, the analogy is merely an assertion made without more - touch as it may on philosophical arguments as to the nature and functions of the state, which have been the subject of millennia of discourse. For similar reasons, the plaintiff's case is not assisted by the broad assertion that there is a sufficient nexus on the basis that there is a need to protect the public at large.[268] Such an assertion, which is not anchored in the impugned conduct as pleaded, cannot provide any basis for a sufficient nexus.

133 In the State's submission, the injunctive relief proposed by the plaintiff fails to satisfy the sufficient nexus requirement.

134 There is no real relationship between the making of the Representations to the public, and the entry into contracts with third parties by the State and, or alternatively, the Authority. The only connection between the alleged contravening conduct and the relief sought in paragraph B(b) is made through the inclusion of the words 'in circumstances where the State and/or the [LMA] has made the Representations ... to the third party in the course, or for the purposes, of the procurement process'. However, this is not a 'sufficient nexus'. In any given case, if the State and, or alternatively, the Authority had made one or more of the Representations to the third party, the correct way to remedy the contravention would be through the making of a declaration of the kind sought by the plaintiff in paragraph A of the prayer for relief. An injunction preventing entry into the third party contract itself would bear no relationship to the allegedly contravening conduct.

135 Paragraph B(c), which would seek to restrain the State and the Authority from taking any further steps to implement the Project, is even more remarkable in its lack of connection between the contravening conduct and the relief sought. A 'relationship' between the contravening conduct and the relief sought is asserted in so far as the State and the Authority would be prevented from implementing the Project 'based upon a business case containing one or more of the Representations'. However, this tenuous connection does not meet the description of a 'sufficient nexus'. The implementation of the Project, which is sought to be restrained, cannot be said to involve any contravention of the ACL. To the extent that the relief is directed at restraining the making of the Representations in the context of a business case for the Project, there is again no real relationship between the pleaded conduct (involving the making of Representations to the public or, in one case, to the Commonwealth) and the conduct sought to be restrained (the making of representations to third parties in the context of a business case).

136 The combined effect of paragraphs B(b) and B(c), if granted, would be to prevent the State and the Authority from continuing with the Project. In Foster v ACCC, the Full Federal Court accepted that the power conferred by s 80 is wide enough to support 'a complete prohibition, whether permanently or for a specified period, on a respondent's engaging in a particular field of commercial activity or industry', but made plain that injunctive relief framed this widely could only be warranted if 'required to protect the public from conduct of the kind which constituted the contravention'.[269]

137 The proposed injunctions are not concerned with protecting the public from the conduct the subject of the FASOC or even conduct of that kind. Rather, the injunctions are directed to achieving a very different outcome - the scuttling of the Project altogether.[270] If the plaintiff succeeds in establishing that the Representations were made in contravention of s 18 of the ACL, the protection of the public from conduct of that kind would be achieved through the making of a declaration in the form described in paragraph A of the prayer for relief. The injunctions sought in paragraphs B(b) and B(c) are not necessary to achieve that purpose, and, indeed, are patently directed to a different purpose - one that is not authorised by s 232 of the ACL.

138 The Authority also addresses the 'nexus' issue in practical terms:[271]

1. In practical terms, if granted, the relevant relief would bring the Project to an end. This relief sought goes much further than is necessary to remedy any injury to the public interest allegedly caused by challenged conduct (i.e. the publication of three documents as alleged). In the context of the comments of Gummow J in Truth About Motorways, the plaintiff over-reaches in seeking to prevent the signing of construction and finance contracts for the Project, or taking any step in furtherance of the Project consequent upon the alleged contravening conduct. If the contravening conduct is established, a mandatory injunction of the sought [sic] granted in Truth About Motorways, which had the effect of "correcting" the information contained in the misrepresentations, would be sufficient to "counterbalance the injury sustained to the public interest" by reason of any such misrepresentation.
2. Similarly, if the Court granted the relief sought at [B](a) of the Prayer, the LMA would have to withdraw and disavow publicly the limited set of documents on which the plaintiff's case rests. The relief would prevent the repetition of the contravening conduct (and thereby uphold the norm of conduct for which s 18 of the ACL provides).

I accept these submissions on the basis of their reasoning and matters to which reference is made and also for the preceding reasons in these reasons for judgment.

139 For the preceding reasons there is, in my view, clearly no sufficient nexus between the conduct which the plaintiff seeks to impugn and the relief sought.

140 As indicated in the preceding reasons, the answers to the separate questions are as follows:

141 The parties are to bring in orders to give effect to these reasons. The question of costs is reserved.

[1] Murphy v State of Victoria & Anor [2014] VSC 363.

[2] See Murphy v State of Victoria & Anor [2014] VSC 363, particularly at [54] and the statement of Brooking J in Jacobson v Ross [1995] VicRp 24; [1995] 1 VR 337 at 340-1 which is there set out.

[3] ie the audited, but unpublished, financial statements of the Authority for the year ended 30 June 2014.

[5] Submissions of the plaintiff - separate questions ("the Plaintiff's Submissions"), [8](c).

[6] Transcript, page 11, lines 21 to 24; and page 13, line 8..

[7] Murphy v State of Victoria [2014] VSC 363 at [61] (Croft J).

[8] Transcript, page 128, lines 13 to 15.

[9] Plaintiff's Submissions, [9] and [10].

[10] State's Defence, [3B(a)]; Plaintiff's Reply to the State's Defence, [2(a)].

[11] State's Defence [3B(a)]; Plaintiff's Reply to the State's Defence [2(a)]. The roadway which is to be constructed as part of the Project is also referred to as "the roadway". The roadway is also variously referred to as "the tollway" or the "toll road".

[12] State's Defence [3B(f)]; Plaintiff's Reply to State's Defence [2(a)].

[13] FASOC [4]; State's Defence [4].

[14] Stage One also includes: (1) access via City Link to M1, Port of Melbourne, Melbourne Airport and M80/Hume Freeway; (2) Eastern Freeway upgrading and managed motorways; and (3) CBD-oriented public transport enhancements to the north of the CBD. See FASOC [7]; State's Defence [7].

[15] Part of the Department was previously known as the Department of Transport.

[16] The Authority's Defence, [2B(b)]; Plaintiff's Reply to the Authority's Defence, [1].

[17] The Authority's Defence, [2B(c)]; Plaintiff's Reply to the Authority's Defence, [1].

[18] State's Defence, [3D(c)]; Plaintiff's Reply to the State's Defence, [4].

[19] State's Defence, [3D(d)]; Plaintiff's Reply to the State's Defence, [4].

[20] State's Defence, [3D(e)]; Plaintiff's Reply to the State's Defence, [4].

[21] FASOC [5]; State's Defence [5].

[22] FASOC [6(a)]; State's Defence [6(a)].

[23] State's Defence [3C(g)]; Plaintiff's Reply to State's Defence [3(a)].

[24] State's Defence [3C(h)]; Plaintiff's Reply to State's Defence [3(b)].

[25] State's Defence [3C(i)]; Plaintiff's Reply to State's Defence [3(b)].

[26] State's Defence [3D(h)]; Plaintiff's Reply to State's Defence [4(a)].

[27] State's Defence [3D(k)]; Plaintiff's Reply to State's Defence[4(a)].

[28] FASOC [14]; State's Defence [14].

[29] State's Defence [3D(l)]; Plaintiff's Reply to State's Defence [4(a)].

[30] State's Defence [3D(m)]; Plaintiff's Reply to State's Defence [4(a)].

[31] State's Defence [3D(n)]; Plaintiff's Reply to State's Defence [4(a)].

[32] State's Defence [3D(o)]; Plaintiff's Reply to State's Defence [4(a)].

[33] State's Defence [3D(p)]; Plaintiff's Reply to State's Defence [4(a)].

[34] FASOC [16]; State's Defence [16].

[35] FASOC [17]; State's Defence [17].

[36] FASOC [9]; State's Defence [9].

[37] FASOC [10]; State's Defence [10] and [11].

[38] FASOC [12]; State's Defence [12].

[39] FASOC [13]; State's Defence [13].

[40] FASOC [18]; State's Defence [18].

[41] The Authority's Defence, [2(b)(i)].

[42] The Authority's Defence, [2B(d)]; Plaintiff's Reply to the Authority's Defence, [1].

[43] As to the third point, see the Authority's defence, [2B] [AB 37-39].

[44] See s 137 of the TI Act - the 'vision statement' appears in s 6 of the TI Act; and the 'transport system objectives' appear in Part 2, Division 2 of the TI Act.

[45] See Sykes v Reserve Bank of Australia (1997) 151 ALR 579.

[46] Cf the situation described in Paramedical Services Pty Ltd v Ambulance Service of New South Wales (1999) 217 ALR 502 at 518, [87].

[47] Sub-section 138(2)(a) of the TI Act.

[52] [1923] HCA 2; (1923) 31 CLR 503.

[53] [1923] HCA 2; (1923) 31 CLR 503 at 507 (Knox CJ), 508 (Isaacs J), 509 (Rich J), 510 (Starke J). See also Kirkwood v Gadd [1910] AC 422 at 431 (Lord Chancellor Loreburn); and Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 8-9 (Mason J) (referring to Smith v Anderson (1880) 15 ChD 247 at 277-8 (Brett LJ), discussed further in Fasold v Roberts (1997) 70 FCR 489 (Sackville J).

[54] [1923] HCA 2; (1923) 31 CLR 503 at 506 (Knox CJ), at 507-8 (Isaacs J), at 509 (Rich J), at 510 (Starke J); cf the definitions of "business" in s 2 of the ACL which provides that "business" includes a business not carried on for profit (provisions applicable to the ACL Victoria under sub-s 3(2) of that Act).

[55] [1972] HCA 42; (1972) 127 CLR 210.

[56] [1972] HCA 42; (1972) 127 CLR 210 at 217 (Barwick CJ); and see Smith v Campbell [1979] HCA 48; (1979) 142 CLR 509 at 514-5 (Barwick CJ).

[58] (1997) 77 FCR 337 at 354 (Emmett J).

[59] (1997) 77 FCR 337 at 357 (Emmett J).

[60] (1997) 77 FCR 337 at 357 (Emmett J).

[61] (1997) 77 FCR 337 at 356 (Emmett J).

[62] Easts Van Villages Pty Ltd v Minister Administering the National Parks and Wildlife Act [2001] NSWSC 559; (2001) Aust Contract R 90-132 (NSWSC) at [132] (Mathews AJ); RT & YE Falls Investments Pty Ltd v New South Wales [2001] NSWSC 1027 at [78] (Palmer J); New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54; (2003) 57 NSWLR 1 at 5, [24] (Spigelman CJ); GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50; (2003) 128 FCR 1 at 303, [1374] (Finn J); Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133; (2004) 134 FCR 422 at 445, [90] (Finn J); Roads and Maritime Services v Devine Marine Group Pty Ltd [2013] NSWSC 1467 at [133] (Stevenson J); PPK Willoughby Pty Ltd v Roads and Maritime Services [2014] NSWSC 407 at [22]-[23] (Campbell J).

[63] (2004) 219 CLR 90.

[64] Trade Practices Act 1974 (Cth), s 2B.

[65] (2004) 219 CLR 90 at 116, [67] (McHugh ACJ, Gummow, Callinan and Heydon JJ).

[66] (2004) 219 CLR 90 at 119, [74] (McHugh ACJ, Gummow, Callinan and Heydon JJ).

[67] (2004) 219 CLR 90 at 119, [74] (McHugh ACJ, Gummow, Callinan and Heydon JJ).

[68] See Auswest Timbers Pty Ltd v Secretary to the Department of Sustainability and Environment [2010] VSC 389; (2010) 241 FLR 360 at 434, [156] (Croft J); and see below, [99].

[69] [1985] VicRp 68; [1985] VR 675.

[71] [2000] UKHL 55; [2000] 1 WLR 2123.

[72] Plaintiff's Submissions, [23].

[73] [2000] UKHL 55; [2000] 1 WLR 2123 at 2125 (Lord Millett, with whom Lords Bingham of Cornhill, Steyn, Hoffman and Clyde agreed).

[74] [2000] UKHL 55; [2000] 1 WLR 2123 at 2126-8.

[75] NT Power Generation v Power and Water Authority (2004) 219 CLR 90 at 116, [66] (McHugh ACJ, Gummow, Callinan and Heydon JJ).

[76] First Defendant's Submissions (22 August 2014) ('the State's Submissions'), [29].

[77] Corrections Corporation of Australia Pty Ltd v The Commonwealth [2000] FCA 1280; (2000) 104 FCR 448 at 451, [12] (Finkelstein J); Saitta Pty Ltd v The Commonwealth [2001] VSC 170; (2001) 162 FLR 35 at 39, [28] (Beach J); Sirway Asia Pacific Pty Ltd v The Commonwealth [2002] FCA 1152 at [51] (Sundberg J); Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133; (2004) 134 FCR 422 at 445, [90] (Finn J); Roads and Maritime Services v Devine Marine Group Pty Ltd [2013] NSWSC 1467 at [133] (Stevenson J).

[78] Durant v Greiner (1990) 21 NSWLR 119 at 128 (Rolfe J); Fasold v Roberts (1997) 70 FCR 489 at 524 (Sackville J); Paramedical Services Pty Ltd v Ambulance Service (NSW) (1999) 217 ALR 502 at 517, [86] (Hely J).

[79] Paramedical Services Pty Ltd v Ambulance Service (NSW) (1999) 217 ALR 502 at 517, [86], [88] (Hely J); Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133; (2004) 134 FCR 422 at 445, [90] (Finn J); Markit Pty Ltd v Commissioner of Taxation (Cth) [2006] QSC 157; [2007] 1 Qd R 253 at 257, [30] (Muir J).

[80] J S McMillan (1997) 77 FCR 337 at 354 (Emmett J); Fasold v Roberts (1997) 70 FCR 489 at 524 (Sackville J); Sirway Asia Pacific Pty Ltd v The Commonwealth [2002] FCA 1152 at [52] (Sundberg J); New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54; (2003) 57 NSWLR 1 at 34, [131] (Hodgson JA); Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133; (2004) 134 FCR 422 at 445, [90] (Finn J).

[81] Fasold v Roberts (1997) 70 FCR 489 at 525 (Sackville J); Paramedical Services Pty Ltd v Ambulance Service (NSW) (1999) 217 ALR 502 at 518, [86] (Hely J); Sirway Asia Pacific Pty Ltd v The Commonwealth [2002] FCA 1152 at [52] (Sundberg J).

[82] J S McMillan Pty Ltd (1997) 77 FCR 337 at 354; Sirway Asia Pacific Pty Ltd v The Commonwealth [2002] FCA 1152 at [52] (Sundberg J); Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133; (2004) 134 FCR 422 at 445, [90] (Finn J); Markit Pty Ltd v Commissioner of Taxation (Cth) [2006] QSC 157; [2007] 1 Qd R 253 at 257, [30] (Muir J).

[83] J S McMillan Pty Ltd (1997) 77 FCR 337 at 355 (Emmett J); Sirway Asia Pacific Pty Ltd v The Commonwealth [2002] FCA 1152 at [53] (Sundberg J).

[84] Markit Pty Ltd v Commissioner of Taxation (Cth) [2006] QSC 157; [2007] 1 Qd R 253 at 257 - 258, [32] (Muir J), quoting from Town Investments Ltd v Department of the Environment [1977] UKHL 2; [1978] AC 359.

[85] Sirway Asia Pacific Pty Ltd v The Commonwealth [2002] FCA 1152 at [53] (Sundberg J), citing Mid Density Development Pty Ltd v Rockdale Municipal Council [1992] FCA 634; (1992) 39 FCR 579 at 585; New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54; (2003) 57 NSWLR 1 at 34, [134] (Hodgson JA); Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133; (2004) 134 FCR 422 at 445, [90] (Finn J); Markit Pty Ltd v Commissioner of Taxation (Cth) [2006] QSC 157; [2007] 1 Qd R 253 at 257, [30] (Muir J).

[86] New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54; (2003) 57 NSWLR 1 at 34, [129] (Hodgson JA); Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133; (2004) 134 FCR 422 at 454, [90]; Markit Pty Ltd v Commissioner of Taxation (Cth) [2006] QSC 157; [2007] 1 Qd R 253 at 257, [30] (Muir J).

[87] New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54; (2003) 57 NSWLR 1 at 34, [131] (Hodgson JA); Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133; (2004) 134 FCR 422 at 445, [90] (Finn J); Markit Pty Ltd v Commissioner of Taxation (Cth) [2006] QSC 157; [2007] 1 Qd R 253 at 257, [30] (Muir J).

[88] [2002] FCA 1152.

[89] [2002] FCA 1152, [56].

[90] JS McMillan Pty Ltd v Commonwealth (1997) 77 FCR 337.

[91] Corrections Corporation of Australia Pty Ltd v Commonwealth of Australia [2000] FCA 1280; (2000) 104 FCR 448.

[92] Saitta Pty Ltd v Commonwealth [2001] VSC 170; (2001) 162 FLR 35.

[93] Sjostrom-Clemens-Lindsey v Comcare Australia (2003) 178 FLR 439 at 445, [21] (Phipps FM).

[94] Roads and Maritime Services v Devine Marine Group Pty Ltd [2013] NSWSC at [135] (Stevenson J).

[95] Thompson v Department of Environment and Conservation [2011] FCA 617 at [46] (Barker J).

[96] Australian Competition and Consumer Commission v Australian Medical Association Western Australia Branch Inc [2003] FCA 686; (2003) 199 ALR 423 at 491 - 492, [393] (Carr J).

[97] Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133; (2004) 134 FCR 422 at 445-447, [91] - [94] (Finn J) (affirmed in Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330).

[98] NT Power Generation v Power and Water Authority (2004) 219 CLR 90 at 110, [52] (McHugh ACJ, Gummow, Callinan and Heydon JJ).

[99] State Transit Authority (NSW) v Australian Jockey Club [2003] NSWSC 726; (2003) 11 BPR 21,107 at 21,112-3 [39] (Young CJ in Eq).

[100] (2003) 11 BPR 21, 107 at 21, 112-3 [39] (Young CJ in Eq).

[101] Plaintiff's Submissions, [27] - [36].

[102] State's Defence, [21(b)(i)]; Plaintiff's Reply to State's Defence, [7].

[103] State's Defence, [29(b)(i)]; Plaintiff's Reply to State's Defence, [9].

[104] State's Defence, [29(b)(ii)]; Plaintiff's Reply to State's Defence, [9].

[105] Compare State's Defence, [3C(g)] with Plaintiff's Reply to State's Defence, [3]; and see Transcript pages 55 and 143 to 146..

[107] See Transcript, page 112, lines 13 to 17.

[108] Plaintiff's Submissions, [37].

[110] "[G]overnmental and departmental activities for the purpose of planning and constructing roads pursuant to statutory powers and duties are a function of government and not of trade or commerce": Powell v Tasmania [2001] TASSC 114; (2001) 10 Tas R 283 at 301, [47] (Crawford J). Moreover, the possibility that a private entity may be appointed by the relevant minister as a "project authority" under s 6 of the MTPF Act does not detract from this position - rather, it is entirely consistent with this position having regard to the legislative framework in which such projects are undertaken.

1. [111] J S McMillan (1997) 77 FCR 337; Corrections Corporation of Australia Pty Ltd v The Commonwealth [2000] FCA 1280; (2000) 104 FCR 448; Sirway Asia Pacific Pty Ltd v The Commonwealth [2002] FCA 1152; State Transit Authority (NSW) v Australian Jockey Club [2003] NSWSC 726; (2003) 11 BPR 21,107 (NSWSC); Roads and Maritime Services v Devine Marine Group Pty Ltd [2013] NSWSC 1467.

[112] Plaintiff's Submissions, [42].

[113] Transcript, page 116, lines 18 to 31.

[114] Those documents are as follows: (1) the Executive Summary from the Short Form Business Case [AB 80-91]; (2) the CIS [AB 109-275] (Summary Report, Executive Summary and Chapter 7 only); and (3) the Transport Summary Report [AB 277-303].

[115] Plaintiff's Submissions, [20].

[116] Plaintiff's Submissions, [20].

[117] As to the way in which the plaintiff puts this part of his case (carrying on of business in relation to the Project'), see Anthony Murphy v State of Victoria & Anor [2014] VSC 363 at [12] and [13].

[118] As to the significance of these Annual Reports, being documents of the 'utmost solemnity', see NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at 110-111, [52]-[55].

[119] See for example Corrections Corporation of Australia Pty Ltd v Commonwealth of Australia [2000] FCA 1280; (2000) 104 FCR 448 at 452, [16].

[120] See FASOC [4] and [8] [AB 2-4]; and see also the 'Invitation for Expressions of Interest' [AB 441-442].

[121] Plaintiff's Submissions, [23].

[122] Powell v Tasmania [2001] TASSC 114; (2001) 10 Tas R 283 at 301, [47].

[124] In Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 at [58], using the same starting point, Sundberg J analysed the matter in this way.

[125] There is no dispute with respect to the proposed delivery of the Project using a public-private partnership: see FASOC at [4] and the corresponding admission in the Authority's amended defence.

[126] See Auswest v Department of Sustainability and Infrastructure [2010] VSC 389; (2010) 241 FLR 360 at 436-7, [161] (Croft J).

[127] Outline of the Second Defendant's Submissions (22 August 2014) ('the Authority's Submissions'), [21] and [22].

[128] Victorian Parliamentary Debates, Legislative Assembly, 31 October 2002, pp 1121-1122.

[129] See the LMA's amended defence at [2](b) [AB 36].

[130] http://www.dtf.vic.gov.au/Infrastructure-Delivery/Public -private-partnerships/About-Partnerships-Victoria.

[131] http://www.dtf.vic.gov.au/Infrastructure-Delivery/Public-private-partnerships/Projects/East-West-Link.

[132] See Interpretation of Legislation Act 1984, s 35.

[133] Authority's Submissions, [23].

[134] See the plaintiff's submissions on 1 August 2014 (see the transcript at p 27, line 7); and see Transcript page 118, lines 14 to 22 (State's Submissions).

[135] Authority's Submissions, [24].

[136] The Authority has not published an Annual Report for the year ended 30 June 2014 - although the Authority has approved a set of audited financial statements for the year ended 30 June 2014 which were tendered on a restrictive basis (see above, [4]).

[137] See for example the Authority's Annual Report 2012-2013 at pp 73-74 [AB 635-636].

[138] NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at 111, [55].

[139] See Knevitt v The Commonwealth of Australia [2009] NSWSC 1341 at [56]; and see also Auswest Timbers Pty Ltd v Secretary to the Department of Sustainability and Environment [2010] VSC 389; (2010) 241 FLR 360 at 434, [156] (Croft J).

[140] Authority's Annual Report 2012-2013 at pp 42-44 [AB 604]606].

[141] See Note 1 to the Financial Statements for the year ended 30 June 2013, Authority's Annual Report 2012-2013 at p 33 [AB 595].

[142] See the Financial Statements of the Authority for the years ended 30 June 2012 [AB 509-557], 30 June 2013 [AB 587-631] and 30 June 2014.

[143] NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at 110-111, [53]-[54].

[144] See Outline of the Second Defendant's Submissions (22 August 2014), [45]; noting that the orders made on 25 August 2014 otherwise prevent the disclosure or publication of the contents of the 214 Authority Accounts to any person other than a party to these proceedings, having regard to the requirement that the Authority table its Annual Report for the year ending 30 June 2014 in Parliament as required by the provisions of the Financial Management Act 1994.

[145] See pp 8-9, 23 and 42 of the 2014 Authority Accounts - [19](h) of the Authority's amended defence describes these funds as Grants [AB 48-49].

[146] See pp 11 and 21 of the 2014 Authority Accounts.

[147] See pp 11 and 21 of the 2014 Authority Accounts.

[148] See p 30 of the 2014 Authority Accounts.

[149] See pp 27-28 of the 2014 Authority Accounts (notes 7 and 8).

[150] See the Authority's amended defence [19](g) [Ab 48].

[151] See s 138A(1) of the TI Act; and see also p 45 of the 2014 Authority Accounts.

[152] It is also worth noting in this context that s 138 of the TI Act authorises the non-compulsory acquisition of land.

[153] See the 2012-2013 Annual Report at pp 18-21.

[155] Annual Report 2012-2013, p 20, ([AB 582]).

[156] Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 at [56] (Sundberg J).

[157] See J S McMillan Pty Ltd v Commonwealth of Australia (1997) 77 FCR 337, Hungier v Grace [1972] HCA 42; (1972) 127 CLR 210 at 217 (Barwick CJ), and Fasold v Roberts (1997) 70 FCR 489.

[158] NSW v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54; (2003) 57 NSWLR 1 at 34, [131] (Hodgson JA).

[159] See pp 22-24 and 30 of the 2014 Authority Accounts.

[160] See the Authority's Defence at [231], [21A], [25], [25A], [29], [29A], [33] and [33A]; Plaintiff's submissions on strike out application dated 11 July 2014 at [18].

[161] Mid Density Development Pty Ltd v Rockdale Municipal Council [1992] FCA 634; (1992) 39 FCR 579 at 586 (Davies J).

[162] See the Authority's Defence [2B], [2D], [29] and [29A] - [29C].

[163] Auswest Timbers Pty Ltd v The Secretary to the Department of Sustainability and Environment [2010] VSC 389; (2010) 241 FLR 360 at 436-7, [161] (Croft J).

[164] See Authority's Defence [2B], [2E], [29] and [29A]-[29C].

[165] Refer to Authority's Submissions, [56].

[166] See the LMA's amended defence at [6] and [7] [AB 42].

[167] See the 2012-2013 Annual Report at p 18.

[168] See the following: s 138(2)(a) of the TIA; and the 2012-2013 Annual Report at p 21 ('Keeping communities informed') [AB 583].

[169] See the 2012-2013 Annual Report at p 21 [AB 583].

[170] Authority's Submissions [29](d).

[171] See the following: (1) cl. 17.4 of the 'Invitations for Expressions of Interest' [AB 471]; (2) the disclaimer section on the Authority's website; and (3) the Authority's amended defence at [40]-[41] [AB 63]64].

[172] Re Ku-ring-gai Co-operative Building Society (No 12) Ltd [1978] FCA 50; (1978) 22 ALR 621 at 648 (Deane J); Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 at 602 (Mason CJ, Deane, Dawson, Gaudron JJ); W & A McArthur Ltd v State of Queensland [1920] HCA 77; (1920) 28 CLR 530 at 546; and Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 284.

[173] [1990] HCA 17; (1990) 169 CLR 594 at 602 (Mason CJ, Deane, Dawson and Gaudron JJ) ("Concrete Constructions").

[174] [1990] HCA 17; (1990) 169 CLR 594 at 603-604 (Mason CJ, Deane, Dawson and Gaudron JJ). See also at 614 (Toohey J): 'The question is not whether the conduct engaged in was in connexion with trade or commerce or in relation to trade or commerce. It must have been in trade or commerce.' (Original emphasis.)

[175] [1990] HCA 17; (1990) 169 CLR 594 at 613 (Toohey J).

[176] [1990] HCA 17; (1990) 169 CLR 594 at 602 - 603 (Mason CJ, Deane, Dawson and Gaudron JJ).

[177] [1990] HCA 17; (1990) 169 CLR 594 at 604 (Mason CJ, Deane, Dawson and Gaudron JJ) and 613 (Toohey J); and see also Fasold v Roberts (1997) 70 FCR 489 at 528 - 531 (Sackville J).

[178] NSW v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54; (2003) 57 NSWLR 1 at 5, [24] (Spigelman CJ).

[179] [1990] HCA 17; (1990) 169 CLR 594 at 605 (Mason CJ, Deane, Dawson and Gaudron JJ).

[180] [1990] HCA 17; (1990) 169 CLR 594 at 604 (Mason CJ, Deane, Dawson and Gaudron JJ).

[181] [2004] FCA 1211; (2004) 140 FCR 445 at 562, [612] (Hely J).

[182] Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256; (2005) 148 FCR 68.

[183] [2005] FCAFC 256; [2005] 148 FCR 68 at 108, [142] (Tamberlin, Mansfield and Allsop JJ).

[184] [1997] FCA 1361; (1997) 80 FCR 303 ("Plimer v Roberts"); and see Australian Wool Innovation Ltd v Newkirk (No 2) [2005] FCA 1307.

[185] [1997] FCA 1361; (1997) 80 FCR 303 at 324 - 325 (Lindgren J).

[186] [1997] FCA 1361; (1997) 80 FCR 303 at 326 (Lindgren J).

[187] Plimer v Roberts [1997] FCA 1361; (1997) 80 FCR 303 at 315.

[188] Fasold v Roberts (1997) 70 FCR 489 at 533 (Sackville J).

[189] Plimer v Roberts [1997] FCA 1361; (1997) 80 FCR 303 at 327 (Lindgren J).

[190] [2003] FCAFC 78; (2003) 129 FCR 64.

[191] Hearn v O'Rourke [2002] FCA 1179; (2002) 193 ALR 264 at 267, [12] (Kiefel J).

[192] [2003] FCAFC 78; (2003) 129 FCR 64 at 67, [10].

[194] Pisano v Dandris [2014] NSWSC 1070, [275] (Hammerschlag J); Obeid v Australian Competition and Consumer Commission (ACCC) [2014] FCA 839 at [95] (Farrell J); No Taswind Farm Group Inc v Hydro-Electric Corporation (No 2) [2014] FCA 348, [17] (Kerr J); Toben v Mathieson [2013] NSWSC 1530, [19] (McCullum J); Markan v Bar Association of Queensland [2013] QSC 146 at [56] - [58] (Atkinson J); Australian Competition and Consumer Commission v Neighbourhood Energy Pty Ltd [2012] FCA 1357, [5] (Marshall J); Astra Resources Plc v Full Exposure Pty Ltd [2012] FCA 1061, [28 (Besanko J).

[195] [2010] VSC 389; (2010) 241 FLR 360 at 434, [156] (Croft J); and see also Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449 at 460, [49] (Gyles J).

[196] (1987) 77 ALR 141 at 155-8. See Plaintiff's Submissions, [51].

[197] (1987) 77 ALR 141 at 157-8.

[198] Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330 at 347, [54] (French, Sackville and Conti JJ).

[199] [1992] FCA 179; (1992) 35 FCR 272.

[200] [2001] NSWSC 559; (2001) Aust Contract R 90-132 (NSWSC).

[201] [2001] NSWSC 559; (2001) Aust Contract R 90-132 at [143].

[202] [2004] FCA 133; (2004) 134 FCR 422 (Finn J).

[203] [2001] TASSC 114.

[204] [2001] TASSC 114 at [47] (Crawford J).

[205] [2001] TASSC 114 at [47] (Crawford J).

[206] [1992] FCA 634; (1992) 39 FCR 579.

[207] [1992] FCA 634; (1992) 39 FCR 579 at 584 (Davies J).

[208] [1992] FCA 634; (1992) 39 FCR 579 at 585 (Davies J).

[209] [1992] FCA 634; (1992) 39 FCR 579 at 585 (Davies J).

[210] [1992] FCA 634; (1992) 39 FCR 579 at 585 (Davies J).

[211] [2006] QSC 157.

[212] In this respect note also the provisions of s 18 of the ACL Victoria (set out above, paragraph 23).

[213] [2006] QSC 157 at 256-257, [27] (Muir J).

[214] [2006] QSC 157 at 259, [38] (Muir J).

[215] (1994) ATPR (Digest) 46-130.

[216] (1994) ATPR (Digest) 46-130 at 53,631 (Hedigan J).

[217] [2001] NSWSC 559; (2001) Aust Contract R 90-132.

[218] (1994) ATPR (Digest) 46-130 at 53,631 (Hedigan J).

[219] (1994) ATPR (Digest) 46-130 at 53,631 - 53,632 (Hedigan J).

[220] Unreported, Supreme Court of Victoria, Beach J, 28 April 1992.

[221] [1981] FCA 224; (1981) 39 ALR 67.

[222] [1981] FCA 224; (1981) 39 ALR 67 at 75 (Morling J).

[223] [1981] FCA 224; (1981) 39 ALR 67 at 75 (Morling J).

[224] [1992] FCA 630; (1992) 38 FCR 1; Plaintiff's Submissions, [47].

[225] [1981] FCA 224; (1981) 39 ALR 67; Plaintiff's Submissions, [48].

[226] (1994) ATPR (Digest) 46-130; Plaintiff's Submissions, [48], [49].

[227] Unreported, Supreme Court of Victoria, Beach J, 28 April 1992; Plaintiff's Submissions, [49].

[228] Plaintiff's Submissions, [56].

[229] Plaintiff's Submissions, [57].

[230] Plaintiff's Submissions, [58].

[231] Plaintiff's Submissions, [59]. In this context I note also the plaintiff's submission (Submissions of the Plaintiff - Separate Questions (22 August 2014), [53]) that:

"Conduct towards tenderers in the course of a tender process is conduct in trade or commerce, regardless of whether the body calling for tenders must take into account matters other than profit: JS McMillan Pty Ltd v Commonwealth (1997) 77 FCR 337, 354; Dockpride Pty Ltd v Subiaco Redevelopment Authority [2005] WASC 211, [208]."

The circumstances of the authorities relied upon in support of this submission were, however, relevantly different from those in the present proceedings insofar as they are relevant to the plaintiff's pleaded case.

[232] Powell v State of Tasmania [2001] TASSC 114; (2001) 10 Tas R 283 at 301, [47].

[233] See for example the 'Invitation for Expressions of Interest' [AB 428], particularly at [AB 441-442].

[234] See ss 1 and 6-13 of the TI Act.

[236] Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 at 604.

[237] See the analogous reasoning in Fasold v Roberts (1997) 70 FCR 489 at 525 (lines F to G); and a similar approach is reflected in Sundberg J's identification of the 'core function' of the respondent in Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 at [58].

[239] [1992] FCA 630; (1992) 38 FCR 1 (FC).

[240] [1992] FCA 630; (1992) 38 FCR 1 at 43 - 44.

[241] See for example Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106; (2001) 123 FCR 62 at 109, [178] and Commonwealth of Australia v Griffiths [2007] NSWCA 370; (2007) 70 NSWLR 268 at 298.

[242] See, for example, Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1; BMW Aust Ltd v ACCC [2004] FCAFC 167; (2004) 207 ALR 452; ICI Aust Operations Pty Ltd v TPC [1992] FCA 474; (1992) 38 FCR 248 and ACCC v Francis [2004] FCA 487; (2004) 142 FCR 1.

[244] Section 201 of the ACL Victoria is to like effect.

1. [245] See, eg, Australian Competition and Consumer Commission v Artorios Ink Co Pty Ltd (No 2) [2013] FCA 1292 at [50] (Mortimer J).
2. [246] The relevance of case law concerning s 80 of the TPA to decisions concerning s 232 of the ACL was noted by Mortimer J in ACCC v Artorios Ink (No 2) [2013] FCA 1292 at [48].

[247] Authority's Submissions [62] to [64] (emphasis supplied in the Submissions).

[248] See for example the plaintiff's submissions at the hearings on 19 May 2014 (transcript p 2) and 1 August 2014 (transcript p 32).

[249] Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591 at 623.

[250] See the transcript at p 32 and 33.

[251] (1997) 78 FCR 197.

[252] (1997) 78 FCR 197 at 203-204.

[253] [2004] FCAFC 167; (2004) 207 ALR 452.

[254] [2004] FCAFC 167; (2004) 207 ALR 452 at 465, [36] (Gray, Goldberg and Weinberg JJ).

[255] ACCC v Artorios Ink (No 2) [2013] FCA 1292 at [50] (Mortimer J).

[256] [2007] FCAFC 146; (2007) 161 FCR 513 at 542 - 543 [108] (Moore, Dowsett and Greenwood JJ).

[257] See FASOC at [6], [14], [15], [21]-[22], [25]-[26], [29], [32]-[34].

[258] See the Authority's Defence at [231A](f), [40] and [41] [AB 51, 63-64].

1. [259] [1992] FCA 474; (1992) 38 FCR 248 at 267 (citation omitted). This passage was cited with evident approval by Gummow, Hayne and Heydon JJ in Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at 91, [91].
2. [260] See, eg, Australian Competition and Consumer Commission v Albert [2005] FCA 1311; (2005) 223 ALR 467 at 477, [40]- [41] (Jacobson J); Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; (1999) 95 FCR 114 at 131, [39] (French J).

[261] ACCC v Artorios Ink (No 2) [2013] FCA 1292 at [50] (Mortimer J).

[262] (1997) 78 FCR 197 at 202.

[263] (1997) 78 FCR 197 at 204.

1. [264] Foster v Australian Competition and Consumer Commission [2006] FCAFC 21; (2006) 149 FCR 135 at 149, [35] (Ryan, Finn and Allsop JJ), referring to Lockhart J's judgment in ICI [1992] FCA 474; (1992) 38 FCR 248 at 256 (with whom French J agreed).

[265] Plaintiff's Submissions, [68].

[266] Plaintiff's Submissions, [69], referring to Foster v Australian Competition and Consumer Commission [2006] FCAFC 21; (2006) 149 FCR 135 at 147, [28], 149, [35]; Re McDougall [2006] FCA 427; (2006) 229 ALR 158 at 172 - 175, [64]- [72].

[267] Plaintiff's Submissions, [70] - [71].

[268] Transcript, page 87, lines 8 to 18.

[269] Foster v ACCC [2006] FCAFC 21; (2006) 149 FCR 135 at 149, [35] (Ryan, Finn and Allsop JJ).

[270] In Truth About Motorways Pty Ltd v Macquarie Infrastructure Management, Gummow J spoke of the federal Parliament exercising its powers to create 'new norms of conduct' through s 52 of the TPA, and the power of the Parliament to adapt remedies in order to "enforce or induce compliance with the federal law: [2000] HCA 11; (2000) 200 CLR 591 at 622, [79]. Here, the remedy sought by the plaintiff in the form of the proposed injunctions is not concerned with enforcing present compliance or inducing future compliance with s 18 of the ACL, much less with 'prevent[ing] ...injury done by violation' of the new norm of conduct. The 'norm of conduct' with which the plaintiff's claim is concerned simply bears no relationship to the remedy he seeks.

[271] The Authority's Submissions, [66] and [67].