"Trade or Commerce"
81 Lihir Gold also argued that there was no reasonable cause to believe that the applicants have or may have the right to obtain relief under the Act because the conduct complained of did not occur in trade or commerce within the meaning of s 4(1) of the Act. That section defined "trade or commerce", relevantly as being between Australia and places outside Australia. Lihir Gold contended that all the relevant conduct and representations complained of took place in Papua New Guinea between two companies incorporated there, namely itself and Strang Aniokaka. The applicants asserted that some of Lihir Gold's conduct and representations concerning the genuineness of the tender process were made in emails or letters sent or posted to or from Australia.
82 In order to consider this argument, I will assume that, contrary to my finding above, there was reasonable cause to believe that the tender process was or may have been a sham at all times on and after 22 August 2008. I will also assume that in preparing its expression of interest and tender Strang Aniokaka incurred expenses that, had it not been misled by the sham, it would not have incurred so as to sustain damage by that conduct within the meaning of s 82.
83 The applicants relied on the fact that after 22 August 2008 Lihir Gold emailed copies of some letters concerning the tender process to their chairman, John Strang, at his Australian email address. These letters included a copy of the letter sent on 20 October 2008 inviting each applicant to submit a tender, and the letter dated 7 November 2008 that was addressed directly to Mr Strang as chairman of Strang Aniokaka at its postal address on Lihir Island as well as to his Australian email address. The applicants placed particular reliance on the response to Levitt Robinson emailed from Lihir Gold's Brisbane office on 22 January 2009 as conduct occurring wholly within Australia. The applicants argued that s 6(3) of the Act brought Lihir Gold's conduct into s 52, consisting relevantly of the representations that the tender process was genuine. Section 6(3) relevantly provided:
"In addition to the effect that this Act … has as provided by another subsection of this section, the provisions of … Division [1] of Part V - have, by force of this section the effect they would have if:
(a) those provisions … were, by express provisions confined in their operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraph or telephonic services …; and
(b) a reference in those provisions to a corporation included a reference to a person not being a corporation."
84 For the following reasons, I am of opinion that the examples of email communications in and to Australia do not amount to trade and commerce for the purposes of s 52 of the Act. Those examples do not otherwise assist in establishing reasonable cause to believe that the applicants have, or may be able to obtain, relief in the Court from any conduct of Lihir Gold in respect of them.
85 First, any adverse consequence or loss or damage caused by a representation made, or other conduct engaged in, by Lihir Gold would have been suffered only by Strang Aniokaka. Strang International was a shareholder in that company. If Strang Aniokaka did not suffer loss or damage or was not entitled to relief, the applicants did not explain how its parent would or may have some other right to obtain relief for a contravention of the Act: cf Gould v Vaggelas (1984) 157 CLR 215 at 219-220 per Gibbs CJ, 253 per Brennan J, see too at 232 per Murphy J, 245-246 per Wilson J.
86 A cause of action for damages for a contravention of Pt V of the Act created by s 82 is complete when damage is sustained. But, as French J pointed out, ordinarily, the making of a representation by postal, telegraphic or telephone means is complete where the message is received: Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) 44 FCR 485 at 493; see too: Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 at 45-46 [145]-[148] per Merkel J.
87 As a matter of practical reality the emails and other correspondence to and from Australian addresses were tangential to trading and commercial activities wholly within Papua New Guinea between the two Papua New Guinean trading entities, Strang Aniokaka and Lihir Gold. In Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at 489 [76]-[77] Hill J considered that the concept of trade or commerce was a wide one. He said that it ought not be broken up into individual components each of which, on its own and without reference to the others, may be seen as a separate activity, when each of the components actually formed an indispensable part of an integrated activity. Correspondence and communication by electronic means, including telephone and email, is very often an integral component of the conduct of trade or commerce. But, the mere fact that correspondence occurs within, to or from Australia does not, of itself, determine whether the correspondence or the activities to which it relates is "in trade or commerce" within the meaning of that expression in s 4(1) of the Act.
88 If a publication of defamatory matter is made to more than one person, each defamatory publication to a person is a separate tort. The proper law of the tort of defamation is the law of the place of publication even though the publisher was outside that jurisdiction: Dow Jones & Co Inc v Gutnick (2004) 210 CLR 575 at 605-607 [40]-[44]. Here, the emails were written by Lihir Gold to Strang Aniokaka which acted on them. The latter entity was a company whose business was in Papua New Guinea, although its chairman and some of its officers were in Australia and had email addresses here. More importantly, the emails were addressed to Strang Aniokaka for the purpose of, and relating wholly to, its trade or commerce in Papua New Guinea. (I have put to one side the invitation to express interest to Strang International because it was not acted on.) Such communications were capable of being characterised as conduct in Australia, as Merkel J observed in Bray 118 FCR at 45-46 [147]. Obviously, however, the proper characterisation of such conduct depends on the circumstances: see too Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309 at 318 [32] per Sackville J.
89 It would be an odd result for a letter or email concerning trade or commerce that has no connection to Australia, addressed to an officer of a foreign company at a foreign email address, to be treated as capable of contravening s 52 merely because the addressee happened to receive it on his or her or a computer or "smart phone" (i.e. a telephone capable of receiving email) while he or she was present in Australia on holiday. Such a letter or email would relate to trade or commerce, but I do not think that it would be conduct engaged in by its sender in trade or commerce between Australia and places outside Australia. This consequence reinforces that all of the circumstances of the conduct in making the communication are important in considering the character of the conduct: cf Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at 604-605 [37]-[40] per Gleeson CJ, Hayne and Heydon JJ; Miller v Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31 at [91] per Heydon, Crennan and Bell JJ. Additionally, it is a feature of email communications that a sender often will send copies to many people in organisations even though only one person is intended to spend any effort considering the particular communication.
90 Indeed, as Mason CJ, Deane, Dawson and Gaudron JJ had explained in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 603-604, 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. They said (Concrete Constructions 169 CLR at 604):
"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. 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. In some areas, 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." (emphasis added)
91 There is no question that the scope of the concept trade and commerce with places outside Australia is capable of applying to many situations. The concept is sourced in s 51(i) of the Constitution: cf Seaman's Union of Australia v Utah Development Co (1978) 144 CLR 120 at 138 per Gibbs J, 154 per Mason J with both of whom Barwick CJ and Aickin J agreed. Thus, s 52 of the Act controls and sets a norm of behaviour for the conduct of corporations when they engage in trade or commerce. And s 6(3) of the Act gives s 52 two aspects of additional operation; first, it confines the conduct s 52 regulates to that engaged in in trade or commerce using postal, telegraphic or telephonic services; and, secondly, for that particular conduct, the reach of s 52 is expanded to include individuals: see The Queen v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235 at 244-245 per Mason J with whom Barwick CJ, Gibbs, Stephen, Jacobs and Murphy JJ agreed. Moreover, s 6(3) does not relate to the geographical reach of the Act but rather it was designed only to give the Act wider constitutional support: Zhu v Treasurer of NSW (2004) 218 CLR 530 at 563-564 [96] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ.
92 The real issue here is whether s 52 extends to regulate Lihir Gold's conduct in respect of the emails and letters sent to or from Australia. The effect of s 6(3) here is simply to confirm that the sending or receipt of the emails and letters amount to conduct for the purposes of the Act. But, s 6(3) does not relieve the applicants of the need to establish that that conduct actually, or may have, contravened s 52, so as to satisfy the requirements of O 15A r 6(a). Therefore it is still necessary to consider whether the sending or receipt of the emails and letters amounted to, or may have been conduct in, "trade or commerce" as defined in s 4(1). In Fasold v Roberts (1997) 70 FCR 489 at 530B-531E Sackville J discussed the authorities identifying the distinction between conduct in trade or commerce and conduct in relation to trade or commerce. The line is between conduct that is or is not an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character: Fasold 70 FCR at 530B-C.
93 Here the line between the two aspects of conduct can only be appreciated by considering whether the conduct was or may have been in trade or commerce between Australia and places outside Australia, namely Papua New Guinea. Relevantly, only Strang Aniokaka and Lihir Gold were engaged in trade or commerce in relation to the tender process and the acquisition and supply of stevedoring and material handling services. That activity occurred wholly within Papua New Guinea because Lihir Gold required, and Strang Aniokaka supplied, stevedoring and materials handling services there. There is no evidence Strang Aniokaka incurred any expense, or suffered any detriment or loss or damage in Australia or anywhere outside Papua New Guinea.
94 It may be arguable that by sending emails to Mr Strang or other email addressees in Australia for the purposes of communicating with Strang Aniokaka in relation to the tender process, Lihir Gold engaged in trade or commerce. However, I am of opinion that these communications were not arguably trade or commerce between Australia and places outside Australia. This includes Mr Woods' letter of 22 January 2009 which he sent from Brisbane on behalf of Lihir Gold in reply to Levitt Robinson's letter of 14 January 2009. The only trading or commercial activity or transaction the subject of those communications, was located wholly in Papua New Guinea. No trade or commerce between Australia and Papua New Guinea was contemplated. The emails copied or addressed to Australian officers of Strang Aniokaka did not concern Australian trade or commerce at all. Nor did internal board meetings of Strang Aniokaka that occurred here involve Lihir Gold engaging in conduct in trade or commerce within the meaning of s 52.
95 The applicants also argued that they may be entitled to relief by way of a declaration that Lihir Gold had engaged in conduct in contravention of s 52. In particular, while Strang International suffered no loss or damage, it contended that it had treated the tender process as valid, and so may be entitled to declaratory relief to vindicate its rights. This argument was also put for Strang Aniokaka as an alternative. Thus, if the letter dated 22 January 2009 sent by Lihir Gold from Brisbane and the emails sent to Australian addressees were conduct in trade or commerce within the meaning of s 52, the applicants may have the right to obtain at least declaratory relief.
96 No declaration could be made about the conduct under s 163A(1) of the Act. That is because s 163A(1) is concerned with the Act itself, its provisions, their interpretation and effect, and with the validity of things done and proposed to be done under the Act. However, s 163A(1) is not concerned with whether particular conduct in trade or commerce is conduct that has breached a provision of the Act: Westpac Banking Corp v Northern Metals Pty Ltd (1989) 14 IPR 499 at 511 per Davies and Spender JJ. However, the Court could grant declaratory relief under s 21 of the Federal Court of Australia Act 1976 in respect of such breaches: cf Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582 per Mason CJ, Dawson, Toohey and Gaudron JJ.
97 The power to grant relief under O 15A r 6 is discretionary. The conduct of Lihir Gold of which the applicants complain, had at most a very slight connection with trade or commerce in Australia. The basis of the applicants' claim to relief before me, in respect of s 52 is so tenuous that I would not have exercised my discretion to grant preliminary discovery had I been satisfied that there was sufficient in the claim under s 52 to satisfy the jurisdictional requirements of O 15A r 6(a).
98 A requirement enforced by a court order that a person discover documents that may enable another person to make a decision whether to commence proceedings is a substantive inference in the first person's ordinary freedoms. Such a requirement may be imposed legitimately because the Court considers that, on balance, the interests of justice will best be served by ordering preliminary discovery under O 15A r 6. Of course, that rule should be beneficially construed: St George 211 ALR at 153 [26]. But, the order should not be made lightly. In a free society, governed by the rule of law, any interference with personal freedoms, even for corporate entities, should be sufficiently justified. Here, the breadth of the power under O 15A r 6 is significant in at least two respects. First, it is a recognition that preliminary discovery may be warranted not merely if there is reasonable cause to believe that the applicant actually has the right to obtain relief in the Court, but extends to situations where the belief is arrived at on a more speculative basis; namely that the applicant may have such a right.
99 Secondly, because it is a broad discretion that permits orders to be made against individuals as well as corporations, the Court must be satisfied that the order is necessary in the interests of justice: cf John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 357 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ discussing the narrower power in Pt 3 r 1 of the Supreme Court Rules 1970 (NSW). The interests of justice for the purposes of O 15A r 6 are served by giving effect to the beneficial purposes that it is intended to promote. These include, where there is sufficient material before the Court to establish the necessary factual premise in O 15A r 6, allowing an applicant to "fish" in the documents of the person he, she or it has reasonable cause to believe may be liable to relief that the Court can grant. The benefits of this include that, as a result of that "fishing", the applicant's belief in whether he, she or it has, or may have, a remedy that the Court could grant may either be disabused or fortified by the material discovered under O 15A r 6. Where there is sufficient in the anterior material, namely that on which the order under O 15A r 6 is sought, often it will be necessary in the interests of justice to give the applicant the capacity to make a more informed choice. Nonetheless, the power is discretionary and its exercise in favour of an applicant requires the Court, applying the relevant principles, to be satisfied that the order should be made: i.e. that it is necessary so to order.
100 In Apache 182 FCR at 127 [8] Moore and Gilmour JJ said that the power under O 15A r 6 exists in aid of the exercise of the jurisdiction of the Court. Of course, the interests of justice are shaped by the beneficial construction that should be given to the power to make an order under O 15A r 6. This requires consideration of the discretion once the applicant has passed through the gateway of establishing that there is reasonable cause to believe that there is, or may be, relief available to that applicant in the Court: cf Optiver 169 FCR at 443 [36], 445 [44].
101 I am not satisfied that I should exercise my discretion to grant an order for preliminary discovery by Lihir Gold in favour of the applicants in respect of the only cause of action identified by them that owes its existence to or is sought in respect of a law made by the Parliament. The other causes of action for which the Court could grant relief may be part of that putative matter. However, since I have not been persuaded that there is reasonable cause to believe that the applicants have or may have the right to obtain relief in a matter within the judicial power of the Commonwealth, it is not appropriate to grant preliminary discovery in respect of the other claims that arise, if at all, under the law of Papua New Guinea. The application should be dismissed.
102 I will explain why my preliminary view is that the other bases put by the applicants also do not appear to support a conclusion that there is reasonable cause to belief that, if they were part of a matter within the jurisdiction of the Court, the applicants have or may have a right to obtain relief in it.