PROFESSIONAL ACTIVITY
166 Under the Fair Trading Act, the expression "trade or commerce" is defined to include "any business or professional activity". The Fair Trading Act also contains a definition of "business", as including "a business not carried on for profit" and "a trade or profession".
167 Additionally to their argument on the matter of "trade and commerce" under the Trade Practices Act, counsel for the appellant submitted that the activities and transactions of the College which were relevant in the present case were "professional activities", and thus within the scope of the definition of "trade and commerce" in the Fair Trading Act. If the slate were clean, this submission should be regarded as having obvious merit. All of the facts and events of the present case occurred within the medical profession. The College bore responsibilities and discharged functions which lay the centre of the carrying on of one of the traditional professions. The very thrust of the College's case under the Trade Practices Act, which was accepted by the trial Judge, was that the relevant activities and transactions bore a professional, rather than a trading or commercial, character. However, the slate is not clean, it having been held that the underlying concept of "trade or commerce" gives a special meaning to the expression "any professional activity".
168 The trial Judge rejected the proposition that the Fair Trading Act should be so construed as to include within the concept of "professional activity" the activities and transactions done by the College for the purposes of its training program. In this respect, his Honour accepted the analysis of Santow J in Prestia v Aknar (1996) 40 NSWLR 165. In that case, his Honour was required to consider, as separate questions, whether certain representations made by one Scarcella constituted conduct "in trade or commerce" for the purposes of s 42 of the Fair Trading Act 1987 (NSW) (the equivalent of s 10 of the Fair Trading Act (WA)). Scarcella was a solicitor, and had previously acted professionally for his co-defendants, Messrs Aknar and Soussa. At the time of the making of the representations, Scarcella had ceased so to act, but continued his involvement in the negotiations and other transactions in the course of which the representations were made. He made the representations on behalf of Aknar and Soussa, but not as their solicitor. On the assumption (which Santow J made for the purpose of determining the separate questions) that the representations constituted misleading or deceptive conduct, the question for his Honour was whether Scarcella engaged in that conduct within the expanded definition of "trade or commerce" in the Fair Trading Act (NSW), which included within that term "any professional activity".
169 The NSW legislation is presently relevant because it was the first of the Fair Trading Acts to contain an extension of the definition of "trade or commence" to include a "professional activity". The WA legislation adopted the NSW terminology. The NSW parliamentary materials are unhelpful in resolving the construction of the expression "any professional activity", but it has been suggested that the inspiration for the extended definition came from cases such as Holman v Deol [1979] 1 NSWLR 640. In the facts leading to that judgment, claims had been made against solicitors under the Consumer Claims Tribunal Act 1974 (NSW). Those claims would have been within the jurisdiction of the tribunal established under it only if the solicitors were "traders". A "trader" was defined as "a person who in the field of trade or commerce carries on a business of supplying goods or providing services or who holds himself out as carrying on such a business." Lee J held that the solicitors carried on business, which led to the next question: did they do so "in the field of trade or commerce"? His Honour held not ([1979] 1 NSWLR at 646-649). In so concluding, he expressed himself as follows (at 649):
The conclusion I have come to, is that, when the legislature uses the
expression "the field of trade or commerce" in the Consumer Claims
Tribunals Act, it is not intending that there should be included within it
any business that would not, in relation to ultimate consumers, ordinarily
be regarded as properly described as one operating within the field of
trade or commerce. It did not intend to give the expression artificiality by
including within it professions such as law, medicine and dentistry,
which traditionally have been regarded as occupying a field separate and
apart from trade and commerce as ordinarily understood. The fact that
the legislature has defined the nature of the services in respect of which
claims can be made is, not to set limits to the field of trade or commerce
as it would ordinarily be understood…
Towards the end of his Honour's reasons, Lee J said (at 651-652):
It may be that the legislature will consider that to avoid
doubt and litigation, the Act should be amended to express finally which professions, in addition to law, medicine and dentistry, are to be taken to
be excluded from the operation of the Act.
170 In Durant v Greiner (1990) 21 NSWLR 119, Rolfe J was directly concerned with the meaning of the expression "professional activity", in circumstances where it was submitted that a speech in an election campaign by someone described as a professional politician was such an activity. His Honour said (21 NSWLR at 129):
[I]n my opinion the intention of the definition of "trade or commerce" was to reach not only persons engaged in business, but persons who could assert that they were engaged not in business, as understood in the way to which I have just referred, but rather in a professional activity productive of income.
His Honour thought that the legislature was probably responding to decisions such as that in Holman. He continued (at 129):
In these circumstances I think that the words "professional activity" must
refer to an activity of a professional nature but one which can also be
characterised as in trade or commerce in this way I have sought to explain.
171 In Prestia, Santow J gave careful consideration to Durant, and provided the following explanation of the judgment of Rolfe J (40 NSWLR at 188):
Thus, extrapolating that explanation, one may infer that Rolfe J would treat
"professional activity" as referring to activity of a professional nature which
can be characterised as in trade or commerce (in the sense of encompassing
trade, commercial transactions or engagements). Such activity must occur in the course of those activities or transactions which, of their nature, bear a trading or commercial character.
This was what Santow J described as the "narrower interpretation" of the term "professional activity". The other interpretation considered by his Honour was described as follows (40 NSWLR at 188):
An alternative interpretation at the other extreme would be to treat any
conduct in a "profession" or by way of "professional activity" as per se
sufficient to attract the potential application of s 42(1) of the Act, whether or
not it is trading or commercial in nature, in the above sense. I refer to this
interpretation as the wider interpretation.
His Honour thought that the narrower interpretation had much to commend it, and he ultimately adopted it for the purpose of resolving the issues then before him. Before identifying the factors which influenced his Honour to that conclusion, I should say something briefly about the structure of his judgment as a whole.
172 Santow J expressed the question which he was required to answer as - "s 42 of the Fair Trading Act 1987; was there conduct in trade or commence?" It is clear that his Honour's analysis of the issues of construction with which he was concerned proceeded wholly in the context of s 42 (or of its federal counterpart, s 52 of the Trade Practices Act). In that context, his Honour first considered whether the Fair Trading Act (NSW) should be construed as though it were concerned substantially with consumer protection. His Honour held not (40 NSWLR at 180). Observing the very considerable width, and general terms, of s 42 (and of the federal s 52), his Honour then undertook a "search for a limiting factor, if not consumer protection". Here he identified Concrete Constructions as providing a "further constraint on the luxuriant growth of s 52 and its State counterparts" (at 181). His Honour considered that Concrete Constructions -
… has encouraged a sharper focus on the capacity in which a particular activity has been carried out, rather than concentrating merely on the activity itself, divorced from its context and potential connection with a trading or commercial relationship
(40 NSWLR at 182). Santow J next considered whether the professional activity had to be for profit or reward, and held that it did not (at 184). His Honour then considered what was "a profession or professional activity", and held that the notion of a "profession" was one which depended upon context, and, specifically, upon the general community's understanding as to professions and professional activities (at 185). He held that references to professions included "at least … the traditional categories of medicine, dentistry and the law" (at 186). His Honour said that the term "professional activity" referred "at least to particular activity which a member of a profession would characteristically carry out in that capacity and which is in fact so carried out by that member as such a professional." (at 186).
173 Santow J then dealt with the question which is of most importance in the present case. His Honour asked at 187: "what kind of professional activity can be in trade or commerce?" (Although nothing presently turns on it, it may be noted that his Honour observed that it was only in New South Wales, Western Australia and New Zealand that there were expanded definitions of "trade or commence" and of "business" to embrace professions and professional activity (at 187). As it happens, when Prestia was decided (in June 1996) the definitions of "trade or commence" in the fair trading legislation of Queensland also included "any professional activity".) Santow J dealt with the judgment of Rolfe J in Durant, in the way discussed above. His Honour then referred to an article by Professor McCabe in volume 3 of the Trade Practices Law Journal in which a distinction between "the actual exercise of the intellectual skill" of a professional, on the one hand, and "representation about the product of that intellectual skill or about the practice which generates it", on the other hand, was made.
174 Santow J then identified the two alternative and, it seems, extreme interpretations of "profession" and "professional activity" in the provisions with which he was concerned. Under the heading "arguments for the two interpretations", his Honour made the following points. First, he held that it would be inappropriate merely to engage in textual substitution of the words "business or professional activity" for the words "trade or commerce" in s 42 of the Fair Trading Act (NSW). In this respect, his Honour said (at 189-190):
It might be argued that the "trading or commerce" definition in s 4(1) of the
Act means that the words "business or professional activity" can be substituted for "trade or commerce" in s 42(1), thus suggesting the wider interpretation. On this view, the provision would amount to the following: "… a person shall not, in business or professional activity, engage in conduct that is misleading or deceptive or likely to mislead or deceive". Once it has been established that a person is engaged in a business or professional activity, the requirement is satisfied.
However, had the legislature intended to provide "business or professional
activity" as an alternative to "trade or commerce", this could have been much
more readily effected by amending s 42(1) to read "… a person shall not, in
trade or commerce or in business or professional activity …". The inclusion instead of reference to "profession" and to "business or professional activity"
in the definition of "business" and "trade or commerce" suggests that the
term was rather intended to work a qualification of "trade or commerce", and
not a substitution. Thus "… the words 'professional activity' must refer to an
activity of a professional nature but one which can also be characterised as in
trade or commerce …": per Rolfe J in Durant v Greiner (at 129).
Secondly, his Honour noted that, pursuant to s 35(1)(a) of the Interpretation Act 1987 (NSW), headings formed part of an Act. He observed that the general proscription upon misleading or deceptive conduct in trade or commerce appeared in a Part of the NSW Act headed "Fair Trading", and considered that that circumstance went some way towards justifying the narrower approach. Thirdly, his Honour considered that the narrower construction would make for greater uniformity between those jurisdictions (such as NSW and WA) which had, and those jurisdictions (including the Commonwealth) which had not, introduced the expanded definition of "trade and commerce". Fourthly, his Honour considered that the narrower approach was warranted by the circumstance that the wider approach might have quite unintended consequences, such as the repeal "at a stroke" of the advocate's immunity (see generally 40 NSWLR at 190-191).
175 With respect, I am bound to say that I have some reservations about the reasoning of Santow J in Prestia. The first relates to the passages in his Honour's judgment set out in the previous paragraph of these reasons. When the issue before a court is the proper construction of a statutory definition, or of a word or phrase within such a definition, the exercise necessarily involves a consideration of the definition, word or phrase as it appears when read into the substantive provisions in which it is used: see Kelly v R (2004) 218 CLR 216, 253 per McHugh J. There may, of course, be situations where, because the context indicates otherwise, the term should not be read as defined in the statute. But when it is, the construction of the definition should proceed as I have indicated. Thus I do not agree with Santow J that textual substitution should not, at least generally, be the proper starting point for an exercise of this kind.
176 The second aspect of Prestia as to which I have reservations is that Santow J limited the substantive context by reference to which his Honour construed the expression "any professional activity" to that provided by s 42 of the Fair Trading Act (NSW). In the passage referred to in par 174 above, his Honour gave as his principal reason for not proceeding by way of direct substitution that, had the legislature intended to convey the idea that "any professional activity" was a direct alternative to "trade or commerce", it might have "more readily" done so by inserting the former expression into s 42 itself. With respect to his Honour, that proposition overlooks the many other occasions upon which the legislation with which he was concerned used the latter expression and with respect to which, presumably, the expanded meaning was also intended to be conveyed. More is said about this aspect, in the particular context of the Western Australian legislation, below. My point here is that, because of the many occasions when the expression "trade and commerce" was used, there is every reason to think that it was out of conventional considerations of convenience that the legislature chose to use an interpretation section, and that its choice did manifest an intention that each substantive section should be construed by direct substitution.
177 Given that the expanded definition of "trade or commerce" must do service in a multiplicity of substantive contexts, it is clear that it will not be sufficient to construe a word or phrase in the definition by reference only to one such context. Further, although there may be individual instances where, because of the context indicating otherwise, the defined meaning of "trade or commerce" should not be carried through into the substantive provisions, wherever it is carried through, it must, it seems to me, have the same meaning. That is to say, the expression "any professional activity" must have a singular meaning wherever used in the Fair Trading Act. This is, of course, no more than a particular application of the presumption that a term or expression will have the same meaning wherever used in different parts of the same Act.
178 With respect to the reliance which Santow J placed upon the headings in the Fair Trading Act (NSW), his Honour's reasoning is not readily transferred to the situation arising under the WA legislation. In the Fair Trading Act (WA), the general proscription on misleading and deceptive conduct appears in a Part headed "Unfair Practices", and in a Division headed "Misleading Conduct and False Representations". Santow J acknowledged that, but thought that the fact that the Part was not headed "Consumer Protection", and that the Act itself was entitled "Fair Trading", overcame what might otherwise have been a want of consistency between the constructions given to the same terms in different State Acts by reason of different Part headings. For my own part, I do not consider that these very general considerations ought to be regarded as sufficient to convey the meaning that the expression "any professional activity" should be limited to such activities which have a trading or commercial character.
179 The final point I would respectfully make about Prestia relates to Santow J's opinion that what his Honour described as "the wider interpretation" would "pick up in its swathe many situations which have traditionally been treated as immune from civil action…." (40 NSWLR at 190) The only example given by his Honour was the advocate's immunity from suit in relation to his or her negligence in court, or court-related, activities. However, even the widest norm established by the Fair Trading Acts - the proscription on misleading or deceptive conduct - cannot be regarded as setting up anything like a perfect overlap with the law of negligence. If the norm applied to all the professional activities of barristers, say, there would be many aspects of their court work which remained untouched, even if negligently done. Only by a very strained use of the language could the conduct alleged in Giannarelli v Wraith (1998) 165 CLR 543, for example, be described as misleading or deceptive. In an era of proliferation of legislative regulation, it might be thought that oversight of a newly-enacted provision would present the greatest risk of a legal practitioner becoming negligent in his or her acts or omissions, but it is hard to see how such a situation, at least of itself, might be described as involving misleading or deceptive conduct. I do not, with respect, agree with Santow J that what his Honour described as the wider interpretation would cut a swathe through the advocate's immunity.
180 Turning to authority in this court, the matter of the construction of the expanded definition of "trade and commerce" in the Fair Trading Act (NSW) was considered by the Full Court in Plimer. Lindgren J held (with the assent of Davies and Branson JJ) that the expanded definition of "trade or commerce" had the effect of requiring that expression to be read as though followed by the parenthetical phrase "including in any business activity or in any professional activity" (80 FCR at 322). Thus s 10(1) of the Act with which we are presently concerned should be read:
A person shall not, in trade or commerce (including in any business activity or in any professional activity) engage in conduct….
His Honour continued (at 323):
Although the present distinction is a fine and difficult one, I think that, consistently with the clearly adjectival senses of "business" and "professional" in the definition of "trade or commerce", what the notion of "business ... activity" incorporated into the definition of "trade or commerce" includes, is activity which is unequivocally and distinctively characteristic of the carrying on of a non-profit business, or of the carrying on of a trade, or of the carrying on of a profession. The distinction will, perhaps, rarely be of practical importance and the most straightforward way of demonstrating that the inclusory definition is brought into play in a particular case will be to show that the conduct in question was engaged in in the course of the actual carrying on of a particular non-profit business or trade or profession.
To similar effect, Branson J held that a professional activity was "an activity in the course of the conduct of a profession which of itself bears a professional character" (80 FCR at 308), Lindgren J specifically left open the question (in the sense of not finding it necessary "to reach a final view") whether the expanded definition included only those professional activities which could be described as "bearing a trading or commercial character", as held by Santow J in Prestia (80 FCR at 329).
181 So far as Full Court authority in this court is concerned, therefore, the position seems to be, first, that the expression "trade or commerce" should be so read as to include any professional activity; secondly, that a professional activity will only be such as is unequivocally and distinctively characteristic of the carrying on of a profession; but thirdly, that whether the activity should also be such that, when done in the carrying on of a profession, it bears a trading or commercial character is an open question. The present case requires that question to be answered. There is no authority, binding on this Full Court, which requires it to be answered in a particular way. I propose, therefore, to turn to the provisions of the Fair Trading Act itself.
182 It will be clear from what I have written above that I take the view that a proper construction of the expanded definition of "trade or commerce" in the Fair Trading Act requires first the reading of the definition into each of the sections in which the defined term is used. When this is done, it will be found that, in every case, a grammatically viable result is yielded. There are no oddities or absurdities. As to subject-matter, there are, it is true, instances where a breach of the statutory norm might be thought to be an unlikely event, such as the proscription (in s 61) upon supplying goods which do not comply with an applicable packaging standard. But this is no reason to reject the adoption of the definition (unless, of course, the result of such a process is so manifestly discordant with the subject matter of the provision itself as to justify the conclusion that the context suggested otherwise and that, therefore, the expression "trade or commerce" should not be read in its defined sense at all).
183 The next task is to take the substantive provisions of the legislation, with the definition read into each, and to consider whether their subject matter, purpose and context is such as to illuminate the connotation of the expression "any professional activity". Those provisions may be divided into the following categories:
(a) There are four instances (ss 11, 12(1), 15 and 16) which relate to "the supply or possible supply of goods or services …."
(b) There are eight instances (ss 17, 29(1), 31, 51, 59, 60, 65 and 67) which relate to the manufacture, supply, sale, promotion etc of goods.
(c) There are two instances (ss 18 and 29(2)) which relate to the supply, sale, promotion etc of services.
(d) There are three instances (ss 20, 21 and 61) which relate to the supply of, to payment for or to information about, goods or services, or (in the case of s 61) to information about an interest in land.
(e) There is one instance, not already mentioned above (s 19), which relates to the advertising of goods, services or interests in land.
(f) There is one instance, not already mentioned above (s 12(2)), which relates to the disposal of interests in land.
(g) There is one instance (s 22) which relates to the profitability, risk etc of business activities.
(h) There is one instance (s 42(5)) which relates to a code of practice for persons in a particular "field".
Additionally there is, of course, s 10 itself, which contains the general proscription upon misleading or deceptive conduct to be found in s 52 of the Trade Practices Act.
184 Save for the case of s 10, each of the provisions referred to in the previous paragraph is concerned to regulate conduct in an identified policy setting. Some of the provisions are very specific. Others, such as s 11, are limited more generally (eg in the case of s 11 and others like it, by reference to a connection with the supply or possible supply of goods or services). But in each case the scope of the norm is identified primarily by reference to the policy settings referred to. This has two consequences of relevance to the matter of construction with which we are here concerned. First, it means that the (admittedly limiting) qualifier "in any professional activity" is not required to perform service as the only or the primary limitation upon what would otherwise be a provision of very wide reach. Secondly, it means that any construction which would produce the result that acts or omissions, otherwise within the terms of a particular proscription, are excluded from the reach of the provision concerned because of the general qualifier "any professional activity" would have the potential at least to frustrate the objects of the provision and thus should be approached with caution.
185 It is only s 10 of the Fair Trading Act that has no particular policy setting identified in it, save perhaps for the question-begging one of proscribing misleading and deceptive conduct in any professional activity. It is the very generality of provisions such as this that provoke prognostications as to the range of unintended consequences potentially yielded by a wide construction of the only qualifier which is present. As Santow J pointed out, it was concerns of this kind that led the High Court to offer a rather tight construction of the expression "in trade or commence" in Concrete Constructions. However, for reasons which follow, I do not think that such concerns should produce a construction whereby the expression "any professional activity" is limited to an activity which, of its nature, bears a trading or commercial character.
186 First, and by way of a rather obvious starting point, since the defined term "trade or commerce" is, by Concrete Constructions, limited to activities or transactions which, of their nature, bear a trading or commercial character, any construction of the definition which produced no more than the same result would fly in the face of the apparent legislative intention. It is true that the Fair Trading Act was passed some four years before Concrete Constructions was decided, but it could not be suggested that that judgment gave to the term "trade or commerce" a meaning wider than that which the legislature might have had in contemplation. On any view, as a matter of ordinary language, there does seem to be something suspect about the proposition that the inclusion of the expression "any professional activity" into the meaning of "trade or commerce" does no more than to confirm that the activity in question must bear a trading or commercial character.
187 In Prestia, Santow J recognised the force of the considerations just referred to, but took the view that the narrower interpretation did not "involve the absurdity that the expanded definitions of trade or commerce added nothing to what would otherwise be connoted by those terms." (40 NSWLR at 189) His Honour continued:
Rather, these amendments were directed to remove any universal
exception in favour of professionals from the obligations in s 42. Such a
universal exception would be based on the notion that the professions are of
their nature callings incapable of being in trade or commerce. Such a
proposition was expressly rejected by the 1976 Report of the Trade Practices
Review Committee (the Swanson Report) when it stated that it regarded as
unrealistic the proposition that members of the professions are not part of the
business community (at 1030, 1034). If that rejection be right as a matter of
interpretation of the law, then the definitional extension in the Act to embrace
professions, was merely clarificatory rather than reversing what would
otherwise have been the case. If so, the gap between s 52 of the
Commonwealth Act and the State legislation may be less than first supposed,
consistent with their substantively uniform, though complementary, operation.
I accept that the perception that the professions, or at least the traditional professions, did not operate "in trade or commerce" most probably explains the adoption of the expanded definition in the Fair Trading Act (NSW) in 1986. To Holman (decided in 1979) might be added Fawke v Holloway [1986] VR 411 (decided in December 1985). That circumstance does not, however, justify imposing upon the definition a meaning that would go no further than "trade or commerce" in a professional setting. The legislature (in either or both of NSW and WA) might have said that the expression "trade or commerce" included "the trading or commercial activities of any professional person, firm or company". That was not done. Rather, the term adopted was any professional activity. I do not consider that perceptions as to the non-trading character of the traditional professions should of itself be treated as sufficient to limit the connotation of that broad definition to the trading or commercial context.
188 Secondly, it is not as though, unless limited in the terms proposed in Prestia, the expression "any professional activity" would have to be read literally as referable to everything done by a professional or in the practice of a profession. The jurisprudence of Concrete Constructions, suitably adapted, would inform the construction of that expression no less than it does the construction of "trade or commerce". Thus purely instrumental functions, such as the giving of hand signals in traffic or the location of books in the office library, should not be regarded as professional activities, even when done by professionals in the course of their work. It is to put the same concept in different words to insist, as did Lindgren J in Plimer, that a professional activity be such as is unequivocally and distinctively characteristic of the carrying on of a profession. Thus, to use, and to adapt, the example proffered by Branson J in the same case, the practice of double entry bookkeeping should not be regarded as a professional activity for no reason other than that professional firms, along with many other businesses, might use that system.
189 Thirdly, there is no reason to believe that a judicially-introduced limitation of the kind proposed in Prestia would itself provide an unambiguous connotation in practical situations which arise. Taking the example of solicitors, what activities are contemplated as bearing a trading or commercial character? Would they include the activities involved in any professional engagement with a client? Would they include, for example, the activities involved in the provision of safe-keeping for former clients' wills? Would they include the activities involved when a law society refers a member of the public to a practitioner who is prepared to act pro bono? Taking the example of any professional group, would they include the provision of professional qualifications for inclusion in a directory? Taking an example closer to the facts of the present case, would they include the activities involved when a medical specialist makes arrangements for a patient to undergo a procedure at a public hospital? I pose these miscellaneous questions merely to demonstrate that one should hesitate before introducing an unlegislated gloss upon an otherwise uncomplicated, relatively clear, expression upon no ground other than that it represents what the legislature probably would have said had it turned its mind to the problem. In many such cases, and in my view in this case, the court would not be removing the potential for ambiguity; rather, it would only be shifting the location of the debate to a different, and no less problematic, arena.
190 Fourthly, while admittedly, because of its very width, s 10 has the potential to present difficulties if not limited in some way, other provisions of the Fair Trading Act, which, by their terms, operate in confined settings (ie those referred to in par 183 above), provide no obvious reason to give the qualifier "any professional activity" anything other than its natural reading. The introduction of a further limitation, that the professional activity must bear a trading or commercial character, would bring confusion, where presently there is none. To take an example, s 12(2), as relevantly modified, provides that a person shall not, in any professional activity, in connection with the disposal, or possible disposal, of an interest in land, represent that the person has an affiliation which the person does not have. If the architect who had recently designed a refit for the kitchen of a house standing on a parcel of land, but having no commercial relationship with the intending buyer, informed the buyer that he or she (the architect) was a member of a respected professional body, when such was not the case, would that representation have been made not only in a professional activity but also in such an activity which bore a trading or commercial character? I can see no justification for introducing this additional layer of complication. I am disposed to think that to do so would be to prescribe a remedy which, if no worse than the malady, would clearly be no better.
191 For the foregoing reasons, I am unable to agree with the view expressed in Prestia that, in the Fair Trading Act, the expression "any professional activity" is confined to such an activity which bears a trading or commercial character. How, then, should that expression be construed in the context of its use in the Fair Trading Act? It is perhaps surprising that the legislature should have chosen to use an expression of such potentially wide application, and to have done so by way of specific modification of the provisions of the Trade Practices Act, without any reference to the matter either in the Second Reading Speech or in any of the accompanying parliamentary materials. But that seems to have been the case, both in NSW and in WA. The court is, in the circumstances, thrown back upon first principles in its task of construing this expression.
192 As mentioned above, the expression "any professional activity" does not extend to purely instrumental or mundane activities by which professionals or their staff execute their daily tasks. A professional activity is one that is unequivocally and distinctly characteristic of the carrying-on of a profession. This requirement prompts the question which is perhaps at the heart of the matter in the present case: is the concept of the carrying on of a profession limited to engagement in professional practice, whether as a principal or as an employee, or does it extend to functions of the kind carried on by the College? Here it is important to consider the underlying denotation of the word "professional". At base, a profession is "an occupation in which a professed knowledge of some subject, field, or science is applied; a vocation or career, especially one that involves prolonged training and a formal qualification ….". Thus "professional" is "[o]f, belonging to, or proper to a profession …. [r]elating to, connected with, or befitting a (particular) profession or calling; preliminary or necessary to the practice of a profession …. [e]ngaged in a profession, esp. one requiring special skill or training …." (OED, 2nd ed). These senses of the noun and of the adjective are not limited to engagement in professional practice.
193 Is there anything in the terms, structure or objects of the Fair Trading Act that would make it inappropriate to give the expression "any professional activity" the kind of meaning referred to in the previous paragraph? Save to contend for the limitation proposed in Prestia, counsel for the College did not point to anything. To say that the Act was substantially concerned with trading and trading-like transactions would be to do no more than to beg the question presently for determination. The definition of "trade or commerce" is expanded, and it is expanded to include not only any professional activity but also any business activity. The word "business" includes a trade or profession. Any businesslike activity of a professional firm or person would be a "business activity". That the expression "professional activity" means something further again does seem to be a grammatically appropriate conclusion.
194 For the above reasons, I would not construe the expression "any professional activity" more narrowly than is implicit in the requirement that the activity in question be unequivocally and distinctly characteristic of the carrying-on of a profession, giving to the latter concept a connotation which is not limited to engagement in professional practice. I do not think that there is any legitimate basis, as a matter of construction, for excluding from the expression the activities of associations of professionals such as the College, if the facts otherwise fit the natural construction which I favour. Against this broad conclusion, I turn to the circumstances of the College as revealed in the evidence in the present case.
195 Here certain things are clear. First, the nature of the calling, vocation or pursuit both of the appellant and of the persons who constituted the body which she sought to join was "professional" in even the narrowest sense of the word. This proceeding does not present an occasion for the exploration of the limits of that word in its possible application, for instance, to footballers, film stars and others. Secondly, the College was a professional body whose members were concerned to advance knowledge and to maintain standards in dermatology; and to do so selflessly. Thirdly, the establishment of standards of learning, and the enforcement of those standards through its training program, were significant elements of the College's overall activities. They were not merely incidental. In these two latter respects, I refer, for example, to the passages in the training handbook set out in par 54 above. Fourthly, in the transactions presently relevant, the College acted as such. That is to say, this was not a case in which there was no more than an instrumental act or omission by a subordinate functionary. The representations which the trial Judge found to have been misleading or false were made in a formal publication of the College and were addressed to the cohort of persons with whom the College intended to have dealings. Fifthly, the training program, and the selection process within it, were tightly-organised, systematic and ongoing activities of the College. There was nothing ad hoc about them, or about the publication of the handbooks in which the representations were made.
196 As to the particular activities or transactions in the course of which the representations in issue were made, the first group concerned the selection and interview processes. Here the question for the selection panel was who was the practitioner best equipped to take advantage of the limited opportunities for training as a registrar at the four Western Australian hospitals where that training was to occur. That question had both a content and a context which were unambiguously professional. The assessment and selection were done by professionals and on professional grounds. Likewise with the second group of activities relating to the appeal process (although, in the particular facts of the case, this group must be regarded as notional, since the appellant's very complaint was that there was no meaningful appeal). Had it occurred, a review on appeal of the selection committee's original choice of candidate would have taken its colour from that choice. It too would have been a professional activity.
197 I take the view that the activities or transactions in the course of which the record-keeping representation and the meaningful appeal representation were made were unequivocally and distinctly characteristic of the carrying on of the profession of dermatologists. I consider that it would be quite artificial to regard them otherwise. Those activities were professional activities within the extended meaning of "trade or commerce" in the Fair Trading Act, and the trial Judge was in error not to have held so.