Trkulja v Ethnic Broadcasting Association of Victoria Limited [2000] VSC 219

8. On 3 July 1999 and, according to the plaintiff's statement of claim at various times shortly thereafter, 3ZZZ broadcast by its presenters, between 3 July and 12 July 1999 at various times between those dates the following statement in the Serbian language. The statement as rendered in English is Schedule 8 in plaintiff's statement of claim in this proceeding and I quote:

"As a result of a legal action against 3ZZZ by Milorad Trkulja assistance has become necessary for 3ZZZ Serbian Program from all our listeners. The Serbian Program must collect $30,000 to cover one part of its legal costs. If our listeners do not help, the future of the Serbian Program on the radio station 3ZZZ is under threat of being taken off the air. Call us on phone number 9415 1923 and show by your financial donation that you wish the broadcasting of the Serbian Program on Radio 3ZZZ to continue."

12. On 20 August 1999 the plaintiff commenced this proceeding in relation to that broadcast (the third broadcast) against the defendants. The essential feature of the defamation alleged by the plaintiff to have been committed by the broadcast was that in its natural and ordinary meaning, alternatively in conjunction with knowledge of the extrinsic facts, the broadcast defamed the plaintiff in that it would have been and was understood by members of the Serbian community who listen to the program to mean that by reason of the plaintiff's enforcement of the verdict obtained by him the future of the Serbian program was imperilled, that the plaintiff intended to enforce that verdict even if it produced the necessity to terminate the program, that if the verdict was enforced by the plaintiff, the broadcaster was entitled to terminate it if the Serbian group did not contribute to the verdict and that the plaintiff had conducted the litigation with the intent, or effect, that the Serbian community would be deprived of the program.

15. The plaintiff also pleaded that the broadcast constituted a malicious conspiracy between the defendants to injure the plaintiff in his reputation and business interest and constituted an injurious falsehood of and concerning him and his business interests. It is also claimed that the broadcast constituted a negligent act in broadcasting statements known to be untrue or reckless. The final cause of action pleaded is that the words broadcast constituted a breach of s.52 of the Trade Practices Act 1974 of the Commonwealth of Australia or s.11 of the Fair Trading Act 1985 of the State of Victoria, as being likely to mislead or deceive members of the public. All of these causes of action, that is: libel, conspiracy, injurious falsehood, negligent statement and breach of the Trade Practices and Fair Trading Acts are alleged to have caused damage to the plaintiff.

18. On 15 November 1999 Master Wheeler heard argument concerning the statement of claim. Essentially he made the following orders: (a) he struck out paragraph 10 which pleaded the defamation and struck out paragraphs 15 to 17 inclusive (the allegations of tortious conspiracy) but gave leave to re-plead. Although at that time an attack was made upon paragraphs 11 to 14 of the statement of claim (the injurious falsehood plea) and paras 18 to 21 (the claim in negligence) and paras 22 to 24 inclusive (breaches of the Trade Practices Act etc), he reserved his decision on the arguments in respect of that strike out application pending re-pleading, as I have described it. On 21 December the plaintiff served an amended statement of claim which purported to comply with the Master's orders although it must be said that the re-drawing of the pleading roamed beyond what had previously been canvassed, raising some new allegations of fact and modifying, without identifying the history, other paragraphs. It also omitted paragraphs 9 and 18 of the original statement of claim. This amended pleading again came before the Master on 11 April 2000. On that occasion the defendants opposed any leave being granted in respect of the amendments. After argument Master Wheeler struck out paragraphs 14 to 24 inclusive of the amended statement of claim and specifically ordered that all of the plaintiff's claims in respect of defamation be stayed. Notwithstanding the strike-out of paragraphs 14 to 24, the Master gave leave to the plaintiff to re-plead paragraphs 18 and 19 (the injurious falsehood claim) and paragraphs 20 to 24 (the claim in negligence) but gave leave to the plaintiff to re-plead those paragraphs which respectively raised the causes of action in injurious falsehood and negligence.

21. The defendants appealed those parts of the Master's order that had the effect (although a re-pleading was required) of not striking out the claims in injurious falsehood and negligence. The defendants also appealed the failure of the Master to accede to the defendants' submission that the causes of action sought to be founded upon s.52 of the Trade Practices Act and s.11 of the Fair Trading Act (paragraphs 25 to 27 of the statement of claim) should be stayed or struck out.

24. Mr. Nash, who appeared for the plaintiff on the appeal from Master Wheeler's order, conceded that the cause of action founded upon negligent statement could not be maintained. He did not seek to advance any argument in support of it. In my view, Mr. Nash was correct to abandon this cause of action which was clearly incapable of being maintained. He did argue, under the umbrella of the defendant's appeal, that the defamation cause of action (paragraphs 10 to 16) should not have been stayed or struck out and that the Master's order in that respect should be set aside. With respect to the claim in respect of injurious falsehood, he accepted that particulars of both malice and business injury had to be provided but argued that, once provided, that cause of action should not be struck out or dismissed. He also advanced argument that the cause of action founded upon the Trade Practices Act and Fair Trading Act should survive. I will deal with counsel's arguments in due course.

28. The plaintiff's statement of claim as amended on 21 December 1999 pleaded much of the background which I have generally described. It alleged the broadcast as being broadcast in the Serbian language by its presenters; that it was received by members of the public, including Serbians or persons with Serbian or Yugoslav connection who understood the Serbian language; that many members of the Serbian community knew of the verdict in the plaintiff's defamation proceeding and the defamatory statements that had previously been made concerning him and found by the jury to be established with an award of damages. It also pleaded that the broadcast referred to the plaintiff specifically and that in any event by reason of its extrinsic facts it identified him.

31. The imputations relied on by the plaintiff as arising from the words and the extrinsic facts were said to be as follows:

(a) by reason of the verdict and possible enforcement of the verdict by the plaintiff the future of the program was under threat;

(b) that the plaintiff intended to enforce the verdict even if the Serbian group responsible for the production of the program were obliged to satisfy the judgments so that that action might result in the program being taken off the air;

(c) that the liability to satisfy the judgment was a liability of the Serbian group and not the broadcaster;

(d) that when the verdict was enforced by the plaintiff the broadcaster was entitled to terminate the program if the Serbian listeners did not contribute so as to satisfy the verdict;

(e) that the plaintiff had conducted the litigation which he won with the intent of having the effect that the Serbian community would be deprived of the program;

(f) that the plaintiff was a threat and intent upon enforcing the judgment with the intent of depriving the Serbian community of the benefit of the program;

(g) the plaintiff was a person who was prepared for money to deprive the community of the benefit of the program;

(h) he was pursuing the judgment for financial gain in disregard of the interests of the Serbian community; and

(j) that without donations the broadcasting of the program over 3ZZZ would not be able to continue because of his acts.

37. Many of these imputations are insignificant variations on the same theme. At their heart are the meanings which had been struck out from the original pleading. However, they have been added to by including more specific reference to the plaintiff.

40. Mr. Nash argued three propositions in relation to the defamation claim. In support of his argument that the defamation cause of action was wrongly stayed or struck out, he put it that the innuendo, that is the imputation (as I understood him to mean in view of the known history of the earlier litigation) would be understood by reasonable listeners as meaning that the plaintiff intended to enforce the verdict even if it resulted in the program being taken off the air and further as meaning that the plaintiff conducted the litigation with the intention of getting rid of the Serbian program. This, he argued, naturally meant that it was being stated that the plaintiff was a person prepared, for money, to deprive the Serbian community of the Serbian program and/or that he was pursuing the judgment for financial gain in disregard of the Serbian community. Thus he argued that these were either true innuendos if one knew the facts or a false innuendo to similar effect if one did not. He reminded me of the statement of Lord Reid in Lewis v. The Daily Telegraph (1964) A.C. 234 at 260 with respect to the words in that case and his test, frequently reproduced amongst a plethora of other judicial descriptions, of a defamatory statement as

"what an ordinary man not avid for scandal would read into the words complained of must be a matter of impression. I can only say that I do not think he would infer guilt or fraud merely because an inquiry was on foot. If that is so then it is the duty of the trial judge to direct the jury that it is for them to determine the meaning of the paragraph but they must not hold it to impute guilt of fraud because as a matter of law it is not capable of that meaning."

Mr. Nash argued that the bare statement that his client's action put the Serbian program under threat was sufficient to cause him to be shunned, that it was open to a jury to find that and it was therefore capable of being defamatory. Asked by me whether it was capable of being defamatory for someone to say that of another that he intended to exercise his legal rights, Mr. Nash's response was to say that it was, if it implied that he intended to exercise his legal rights in such way as to deprive the Serbian community of its cultural radio station irrespective of the effect on a fellow Serbian. This was capable of being defamatory. However, to my mind, this addressed the consequences of the exercise of the rights.

45. Mr. Nash did not refer to any of the imputations pleaded in the amended statement of claim to which I have referred. He confined his argument to the two aspects, which identified the substance of the defamatory statement as being to impute against the plaintiff that he intended to enforce the verdict even if it resulted in the Serbian program being taken off the air and that the plaintiff conducted the litigation with that intent. He did not specifically abandon the other imputations but in view of his failure to address them individually, it seems to me that I am entitled to take the view that he regarded the substance of them as really subsumable under the two arguments which he addressed to me.

48. Mr. Southall, Q.C. for the appellant/defendant relied on statements made in Lewis (above) and by Mason, J. (as he then was) in Mirror Newspapers v. Harrison [1982] HCA 50; (1942) 149 C.L.R. 293 at 301. Harrison was a case in which the newspaper report was that the plaintiff had been arrested and charged with a criminal offence. No more being said, the conclusion was, based on a long line of authorities, that such a statement was not capable of bearing an imputation that he was guilty or probably guilty of the offence. The whole Court agreed in the general proposition to which I have referred. Mr. Southall, however, was really relying upon statements made by Mason, J. concerning imputations, namely, that a distinction needs to be drawn between a reader's understanding of what the newspaper is saying and judgments or conclusions that a reader may reach as a result of his or her own beliefs and prejudices. Thus Mason, J. stated:

"It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second proposition."

This emphasis on estimating what the ordinary reasonable reader might conclude was conveyed by the published material is the cornerstone of the consideration of whether or not claimed imputations are arguably open.

53. It should be said that the re-pleading of the imputations that took place in the amended statement of claim of 21 December does not appear to be much different from the meanings struck out on the original pleading. They had been re-pleaded by the plaintiff so as to add certain extrinsic facts. Sub-paragraph (e) appears to be in virtually the same form as the previous sub-paragraph with the only addition being to add the words "the litigation which concluded in the verdict". Sub-paragraphs (f), (g) and (h) are identical to pleadings which had previously been struck out. This doubtless explains Mr. Nash's failure to refer to them. The argument was also advanced on behalf of the appellant that even if the imputations contended for could be regarded as reasonably open to reasonable-minded readers, they could not be regarded as amounting to disparagement of the plaintiff nor have a tendency to expose him to ridicule and contempt, or to be shunned and avoided, words from time to time adopted in an effort to capture the essentials of a defamatory statement. I do not find it necessary to develop these reasons to take account of those variants, many of which are gathered together in various judgments, including, perhaps most recently, the judgment of Kirby, J. in Chakravarti (1998) 193 C.L.R. 519, paragraph 134, his Honour there stating:

"The basic question which is posed is whether the matter complained of, understood in its natural and ordinary meaning, would tend to lower the subject in the estimate of such an evocation of the ordinary reasonable member of society."

Thus, he also stated that special knowledge was excluded as were extremes of suspicion and cynicism on the one hand or naivety and disbelief on the other.

58. In Drummoyne Municipal Council v. Australian Broadcasting Corporation (1990) 21 N.S.W.L.R. 135, Gleeson, C.J. stated (138):

"As I have indicated, the question is ordinarily one to be resolved by considerations of practical justice in the circumstances of the particular case rather than considerations of the possibility of linguistic refinement. I agree with the test formulated by Hunt, J. in Whelan v. John Fairfax & Sons Ltd. (1998) 12 N.S.W.L.R. 148 at 155 where his Honour said: '... The issue which has to be decided in the particular case is whether there is likely to be confusion at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.'"

62. I note further that the Full Court of this State in National Mutual Life Association of Australia Ltd. v. GTV Corporation Pty. Ltd. [1989] VicRp 66; [1989] V.R. 747 at 768 expressed the view that the practice of pleading some specific meaning or meanings "could not alter the position at law that the judge was to decide what meanings were fairly open and was to leave to the jury all such meanings." Further, generally on this issue see my own observations in Carre_y v. ACP Publishing_ [1998] VSC 78; [1999] 1 V.R. 875 paragraphs 16 to 19.

65. After careful consideration, I have reached the conclusion that no reasonably-minded reader of the published words (which are brief and direct) could regard them as capable of giving rise to the meanings contended for in the amended statement of claim. This conclusion is not capable of infinite elaboration. It is not without value to re-state the key words of the publication.

"As a result of a legal action against 3ZZZ by Milorad Trkulja assistance has become necessary for 3ZZZ Serbian Program from all our listeners. The Serbian Program must collect $30,000 to cover one part of its legal costs. If our listeners do not help, the future of the Serbian Program on the radio station 3ZZZ is under threat of being taken off the air."

It seems to me impossible to wring out of that statement any meaning of a defamatory kind that is likely to expose the plaintiff to ridicule, contempt or dislike or make persons think the less of him. Paragraph 7 of Mr. Nash's submissions describe the key imputation as being "that the plaintiff intends to enforce the verdict even if it results in the Serbian program being taken off the air and that the plaintiff conducted the litigation with the intent of getting rid of the Serbian program."

70. It escapes my mind how the published words could convey any action or intention on the plaintiff's part which would be regarded as so improper as to damage his reputation. As I have indicated, some discussion took place in the course of argument as to the circumstances in which (if any) it could be defamatory to say of a person that he or she proposed to enforce, or was enforcing, their legal rights. The analogy was debated of 3ZZZ perhaps being unable to pay a due debt to its bankers, thus leading to call for financial assistance from listeners, as to whether that might be defamatory of the relevant bank. It is not necessary to go so far as to state that a statement of that kind could never be defamatory as the particular circumstances may lend particular meaning to the published words. An examination of the language here in the light of the background does not in my judgment raise such circumstances. It was accepted for the purposes of the present application to be common ground that the plaintiff had succeeding in obtaining an award of damages against 3ZZZ for defamation, and a substantial order for costs. It is a commonplace consequence of the obtaining of a court order for damages and costs that the successful party is not only entitled, but likely to seek to obtain the legitimate rewards of the victorious litigation. It verges on the absurd to estimate it as being a reasonable response of a reasonable reader to think the less of a person because he sought the fruits of the judgment which the justice system has determined he is entitled to. Indeed, he might be thought by many to be insincere if he did not seek them. It might be open to a reasonable reader to conclude that a closure of the radio station was possible or even likely as a consequence of the plaintiff's action, although reason would suggest that that would be a consequence of the radio station's defamation of the plaintiff and its own impecuniosity. But in my judgment it is not be open to a reasonably-minded juror to believe that the plaintiff is disparaged by the published words, bearing in mind the tests to which I have referred. Put another way, it would not be reasonably open to conclude that the plaintiff caused or bore responsibility for that consequence. Accordingly, I am of the opinion that the Master was right to strike out the defamation part of the statement of claim. I am also of the view that he was right to stay the cause of action in defamation. In my view, it would be futile to make orders that would, as it were, give the plaintiff a third shot at torturing out of these inoffensive words some defamatory meaning. His failure to do so thus far is some indication of the impossibility of the task. Accordingly, I order that the paragraphs be struck out and the cause of action in defamation is stayed. Thus I uphold the Master's order in that respect.

73. I turn next to the cause of action based on the publication said to be the tort of injurious falsehood or, as it is sometimes alternatively called, malicious falsehood. I use both descriptions in the course of these reasons. Paragraphs 18 and 19 of the statement of claim purport to deal with this cause of action. They are in the following form:

"18. Further in broadcasting the broadcast, the broadcaster did so maliciously and with intent to injure the plaintiff in his reputation, trade and business.

19. As a result of the broadcast the plaintiff has been seriously injured in his reputation and feelings and in his business activity has been seriously damaged and will continue to suffer loss and damage.

The plaintiff has been the subject of public odium and comment evidencing hatred and contempt of the plaintiff evinced by persons who have stated they had heard the broadcast of the statement and had threatened the health life and safety of the plaintiff by reason of the plaintiff has been severely and emotionally distressed and has suffered and continue to suffer in his personal comfort business and enjoyment of life generally. Further particulars will be supplied prior to the trial of this proceeding."

It should be said that these paragraphs seem to trespass more the field of defamation than ought be permitted, nor could it be said that the so-called particulars amount to particulars relevant to a claim of injurious falsehood.

82. The original statement of claim purported to raise a claim of malicious and injurious falsehood. According to the appellant's submissions, the Master had reserved a decision on striking out paragraphs 11 to 14 of the plaintiff's then statement of claim pending a re-pleading of paragraph 10, the paragraph then dealing with alleged defamatory meanings. To my mind it may be doubted whether paragraphs 11 and 12 constituted a plea of injurious falsehood, but it would appear that paragraphs 13 and 14 did. They were then in the following form:

"13. Further in broadcasting the statement, the broadcaster did so maliciously with intent to injure the plaintiff in his reputation trade and business.

14. As a result of the broadcast and the statement by the broadcaster the plaintiff has been seriously injured in his reputation and feelings and in his business activity and has been seriously damaged and has suffered and will continue to suffer loss and damage."

87. The particulars of loss and damage appended to paragraph 14 were the same as the particulars given under paragraph 19 of the amended statement of claim. Master Wheeler on 11 April struck out paragraphs 18 and 19 of the amended statement of claim, but granted the plaintiff leave to re-plead the subject matter of those paragraphs subject to giving the particulars required by the Rules of malice and damage. Even so late as the time of the commencement of the proceeding before me, the plaintiff has never delivered any particulars of malice or damage. Moreover paragraph 18 does not plead falsehood although it does plead, oddly enough, in paragraph 15 the falsity of the imputations pleaded in paragraph 14. Thus the plaintiff appears to have pleaded falsity as part of the case for defamation (an unnecessary and inappropriate plea) and failed to plead the falsity of the broadcast words in paragraph 18, the paragraph in which, if a claim for injurious falsehood was being made, the plea of falsehood was necessary to be made. In the course of argument, I inquired of counsel for the plaintiff on a number of occasions what was the falsehood relied on. The only answer I received to that inquiry was that the falsehood was in the imputations. In my view, the plaintiff was obliged to plead and identify the falsehood and was obliged by the Rules of this Court to give particulars of malice and damage. Those obligations applied to the original statement of claim and the amended statement of claim. It is conceded that no particulars of malice or damage have ever been given. Mr. Nash appeared to claim that the particulars were to be given by 11 May under the timetable forming part of the order of Master Wheeler of 11 April 2000. However, my reading of that order is that the re-pleading of the statement of claim (paragraphs 18 and 19) had to occur by that date but it was subject to the giving of particulars of malice and special damage. That is, it pre-supposed the giving of the particulars is a condition of having the leave to re-plead. Whether that is right or not hardly matters as no particulars have ever been given nor, as I would judge, ever been embarked upon. Mr. Nash suggested that the intervention of the appeal process led to a reasonable suspension of the obligation. The fact of the matter is, however, the obligation to give the particulars in support of the claim for injurious and malicious falsehood was there from the commencement of the original statement of claim.

90. Neither counsel much addressed the elements of an action for injurious falsehood but it is generally accepted that the plaintiff has to establish (1) that the defendant published to third parties words which are false; (2) that they refer to the plaintiff or his property or his business; (3) they were published maliciously and (4) that special damage has followed as a direct and natural result of that publication. As to the origin of the cause of action, textbook writers are not always agreed as to whether this tort grew out of the action for slander of goods and slander of title or whether or not they are but a sub-set of the tort of injurious falsehood. This matters not for my purpose, the elements of the tort being clearly pronounced in Ratcliffe v. Evans [1892] 2 Q.B. 524, Bowen, L.J. stating, in a celebrated passage, that:

"An action will lie for written or oral falsehoods, not actionable per se or even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage. Such an action is not one of libel or slander, but an action on the case for damage lawfully and intentionally done with just occasional excuse ... To support it, actual damage must be shown, for it is an act which only lies in respect of such damage as has actually occurred."

94. Whilst there is in many cases an overlap between defamation and injurious falsehood, there are many other cases in which an action for injurious falsehood is an alternative to one for defamation. The clear distinction between this tort and the tort of defamation is that the plaintiff must plead the falsity of the statement because, unlike defamation, there is no presumption that the words are untrue. Further, there is no liability in injurious falsehood for a statement published in good faith. The law of defamation is broadly intended to protect one's interest in personal reputation; injurious falsehood as generally being regarded as protecting an interest in one's property, products or business: see the statement in Fleming, The Law of Torts (9th ed) paragraph 5:

"Hence, if a statement charges the plaintiff with discreditable conduct in his business and involves a reflection of his character, it is libel; if it disparages him merely in respect of his property, as by casting aspersion on the nature of his business or the quality of his merchandise, it is injurious falsehood."

It must be rare, in the absence of damage to property, that a plaintiff would embark upon an action for malicious or injurious falsehood, as in the latter case both falsehood and malice must be established as part of the plaintiff's own case. The plaintiff does not, as part of the plaintiff's own case, have to establish these elements in a defamation proceeding.

99. Mr. Southall argued that there were no statements, said to be false, that were made concerning the plaintiff. However, the plaintiff was named in the broadcast and as I apprehend, the case for injurious falsehood is based upon the imputations relied on to support the defamation proceeding. As I have stated, nothing else was identified in the pleading or by counsel in the course of submissions to me. It follows, therefore, since I have rejected the proposition that the imputations are open, the claim of falsehood for the purpose of this tort cannot be supported, on precisely the same basis. Even if I were not prepared to take this course of action under Rule 23, I would not have been inclined to allow it to proceed. After two statements of claim and the failure to comply with a specific order as to the provision of particulars of malice and special damage, the plaintiff has failed to comply with his legal obligations. I daresay the observations which I made with respect to the difficulty of formulating imputations might apply here also, namely, that, after the elapsing of nine months since the commencement of the proceeding the plaintiff has never come up with particulars of malice or special damage because they do not exist. Accordingly, I propose to strike out paragraphs 18 and 19 without leave to re-plead, that is, the cause of action is struck out as not being capable of being maintained.

102. I turn next to that part of the claim founded upon deceptive and misleading conduct, arising out of s.52 of the Trade Practices Act and s.11 of the Fair Trading Act. This claim is articulated in paragraphs 25 to 27 of the amended statement of claim. The claim is there made that the broadcaster "in trade and commerce" engaged in deceptive and misleading conduct likely to mislead or deceive members of the public hearing the broadcast. Reliance is placed upon the allegations made in paragraph 1 of the amended statement of claim which deal with the conduct by the broadcaster of the relevant radio station, including that it was carrying on business in trade and commerce by broadcasting commercial advertisements for award and profit. It does not appear to be in dispute between the parties that 3ZZZ operations fall within s.15 of the Broadcasting Services Act 1992 which deals with community broadcasting services. That section provides relevantly as follows:

"Community broadcasting services are broadcasting services that: (a) are provided for community purposes; and (b) are not operated for profit or as part of a profit-making enterprise; and (c) provide programs that ... (ii) are made available free to the general public."

106. The amended statement of claim added further sub-paragraphs to paragraph 1, namely 1(g) to 1(j). Paragraph 1(e) specifically pleads that at all times material the first defendant was the provider of a community broadcasting service within the meaning of s.15 of the Broadcasting Services Act 1992. The first matter to be addressed is the issue, notwithstanding that 3ZZZ might on some occasions engage in activities which might be described as commercial, whether there is any element of conduct in trade or commerce with respect to the publication of the words relied on as amounting to deceptive and misleading conduct within the meaning of the Acts referred to. Essentially the argument was advanced that an appeal for voluntary donations from listeners or subscribers to this radio station to cover the legal costs of a previous legal proceeding lost by the radio station is not an aspect or element of any activity or transaction by 3ZZZ which, of its nature, bore a trading or commercial character. In Concrete Constructions (N.S.W.) Pty. Ltd. v. Nelson (1991) 69 C.L.R. at 594, the High Court of Australia had occasion to consider the proper construction of the phrase "in trade or commerce" in s.52. These were considered in a rather unusual context, namely an action by a construction worker who alleged in his statement of claim that he had been working for his employer. He was instructed to remove grates from part of air-conditioning shafts. Whilst the worker was removing the grate it gave way, he fell and was injured. Part of the claim for damages against the employer was based upon the Trades Practices Act it being alleged that the statement to him that the grates were securely bolted was misleading and deceptive within s.52 of the Trade Practices Act 1974. In the principal judgment (Mason, C.J., Deane, Dawson and Gaudron, JJ.) it was made clear that the words "trade and commerce" for the present purpose are not terms of art but are terms of common knowledge of the widest import. It was stated (602-604):

"As a matter of language, a prohibition against engaging in conduct 'in trade or commerce' can be construed as encompassing conduct 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. If the words 'in trade or commerce' in section 52 are construed in that sense, the provisions of the section would extend, for example, to a case where the misleading or deceptive conduct was a failure by a driver to give a correct hand signal when driving a truck in the course of a corporation's haulage business. It would also extend to a case, such as the present, where the alleged misleading or deceptive conduct consisted of the giving of inaccurate information by one of the employees to another in the course of carrying the building activities of a commercial building. Alternatively, the reference to 'conduct in trade or commerce' in section 52 can be construed as referring only to conduct which is in itself an aspect or element of activities or transaction 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 New South Wales v. The Commonwealth, the words 'in trade or commerce' refer to 'the central conception' of trade and 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 of some overall trading or commercial business. As matter of mere language the arguments favouring and militating against these alternative constructions of section 52 are fairly evenly balanced."

The majority went on to express a preference for the second, that is the narrower of the alternative constructions of the requirement "in trade or commerce", stating that it was 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 purpose of its overall trading and commercial business. They went on to say:

"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 the carrying on its trading and commercial activities. What the section is concerned with is the conduct of a corporation to 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."

I pause to emphasise the words of characterisation about those activities or transactions, namely that "of their nature they bear a trading or commercial character". The Court itself later noted that the dividing line of what was conduct in trade or commerce and what was not was not always clear and might require the identification of what imports trading of a commercial character. Subsequently, in Fasold & Anor v. Roberts & Anor (1997) A.T.P.R. 41-561, Sackville, J. in the Federal Court re-visited this issue in the context of an intriguing case concerning claimed historical and archaeological research into the situation and discovery of Noah's Ark, it being suggested that by a member of the Australian Skeptics that the researcher-proponent of the discovery, Dr. Roberts, had made misleading and deceptive statements in the course of public statements concerning its discovery. This case is not concerned with the issue of the validity or otherwise of the hypothesis put forward by Dr. Roberts but the claim by the sceptic that false statements had been made in the course of public meetings addressed by Dr. Roberts. The Court concluded, without pronouncing upon the validity of the competing perspectives, that Dr. Roberts' activities could not be characterized as conduct in trade or commerce, even though they may have been related to trade and commerce, because of the manner in which they were conducted. Sackville, J., having closely considered the statements made by the High Court of Australia in Concrete Constructions described the critical question for him as being "whether the public presentations by Dr. Roberts constituted 'conduct which is itself an aspect of or the element of transactions which, of their nature, bear a trading or commercial character.'" (His emphasis.) I have not ignored the views of Wilcox, J. in E v. Australian Red Cross Society [1991] FCA 20; (1991) 27 F.C.R. 310 but, having regard to the issue presently before me, they are not of assistance.

113. Applying those guiding principles, I conclude that, notwithstanding that 3ZZZ was likely, from time to time, to have shown commercials, or, conceivably conducted some programs directed to the generation of income or contributions, that I am entitled to consider the individual characteristics of the broadcast. As such, I find it impossible to conclude that there is any element in the appeal for funds, in the light of the background generating the need, that can be reasonably characterized as being published in trade or commerce. An appeal for donations from listeners or subscribers to 3ZZZ to cover the legal costs referred to is not an aspect or element of any activity or transaction of 3ZZZ which, of its nature, bore a trading or commercial character. Of course, from the broadest possible perspective, an appeal for funds to enable the community broadcasting service to continue broadcasting might be said to have a connection with its capacity to continue, including broadcasting commercials to generate an income. In my judgment, however, this is not reasonably connected with or incidental to the limited commercial activities of a community broadcasting service under s.15 of the Act.

116. I deem this conclusion to be sufficient to dispose of the cause of action founded upon deceptive and misleading conduct under each of the Acts referred to. Mr. Nash rested his argument for the retention of that cause of action squarely upon this issue and advanced no other argument for the preservation of the proceeding. In my view this cause of action also fails.

119. The claim for tortious conspiracy was either withdrawn or abandoned.

122. I propose to order a stay of the whole of this proceeding under Order 23 on the basis that it does not disclose a cause of action and, moreover, that it is frivolous and vexatious. An alternative would be to enter judgment for the defendant in the proceeding. I am conscious of the weight of principle bearing heavily on me when considering whether proceedings in one form or another should be determined summarily under the Rules or, in rare cases, the inherent jurisdiction of the Court. I do not pause to refer to the well-known principles in Dey v. Victorian Railway Commissioners [1949] HCA 1; (1949) 78 C.L.R. 62, General Steel Industries Inc. v. Commissioner for Railways N.S.W. (1964) 112 C.L.R. at 129. I have referred to these principles and their application more times than I care to remember. It appears, on the limited perspective of a judge deriving his knowledge of the dispute from the printed page, never having heard a witness, that the matter has degenerated into an indeterminate conflict between members of the Serbian community. But I do not reach my decision as to the exercise of my discretion on that basis. I have endeavoured to reach the conclusion which I have based upon an objective analysis of the causes of action in relation to the disclosed history and having regard to applicable legal principle. Accordingly, I order that proceeding 6577 of 1999 be forever stayed.

125. I will hear counsel on the question of costs.