(3) 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 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: at 604.
44 I have been referred by Village to cases decided both before and after Concrete Constructions to illustrate situations falling on either side of the line and to indicate suggested "refinements" to the principles of Concrete Constructions.
45 The first proposed refinement builds on the reference in the above quotation to "promotional activities". It is said that the authorities justify the proposition that a corporation making public representations engages in trade or commerce if the representations are designed to advance, maintain, or protect its commercial interests: Glorie v WA Chip & Pulp Co Pty Ltd (1981) 39 ALR 67 at 75; Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 at 16, 25 and 44; Fasold v Roberts (1996) 70 FCR 489 at 531; Australian Associated Motor Insurers Ltd v NRMA Insurance Ltd (2002) 124 FCR 518 at [112]. As I have indicated the burden of Village's submission is that CIA's representations had such a design.
46 At the core of this submission is the decision of Morling J in Glorie v WA Chip & Pulp Co Pty Ltd (1981) 39 ALR 67. In question there was whether the exhibition of a documentary film produced conjointly by an association of companies engaged in the timber and woodchipping industries and the Western Australian Forests Department was conduct in trade or commerce. His Honour made the following findings (at 75):
"[Counsel for the respondent] contended that the film was not exhibited in trade or commerce. He described the film as being in the nature of a political exercise. He argued that viewers of the film were addressed as members of the electorate with the object of educating them in matters of forest management so that they would become sympathetic to the industry. However, this submission does not take sufficient account of all the circumstances in which the film came to be made. The film was produced as part of the activities of the trade association of which the first respondent was a member. The impetus for its production came, in part, from the desire to answer criticism of the industry. It was prudent, if not necessary, that such criticism be answered in order that the commercial interests of members of the Association might be protected. The evidence clearly shows that the production of the film was seen as a public-relations exercise, which plainly it was. The involvement of the Forests Department in the production of the film did not make it any the less a trade or commercial activity of the Association. The first respondent carries on substantial woodchipping operations in Western Australia. The viability of those operations is almost totally dependent upon the supply of timber from the South West Forest. Public antipathy to the use of the forest as a source of supply of that timber could impose a serious threat to the company's future activities if it were to find expression in political or other pressure upon the government to change existing forestry management practices. Having regard to these considerations I am of the opinion that the film has been, and is intended to be exhibited in trade or commerce.
Different views have been expressed by text writers as to whether, in s 52(1), "in" means "within, as part of" or "in connection with" or "in relation to": see Donald & Heydon: Trade Practices Law, vol 2, p 520. But whatever meaning is attributed to "in" in this context, I think that the exhibition of the film is "in trade or commerce" within the meaning of that expression in s 52. It may be the case that not everything done by a corporation that is engaged in trade or commerce is done "in" trade or commerce. It was argued, for instance, that the mere doing of something to improve public knowledge of an industry's activities would not be conduct in trade or commerce. I doubt whether it is useful to generalize on this matter without reference to specific facts. In the present case, a real reason for exhibiting the film was to protect indirectly the commercial interests of the members of the Association, including the first respondent. In these circumstances, I think it is correct to characterize the exhibition of the film as being in trade or commerce."
47 It is unnecessary for me to analyse this decision further, notwithstanding its apparent relevance to the present proceedings. Glorie was decided prior to Concrete Constructions as the second of the above quoted paragraphs makes plain. It was examined in detail by Gyles J in Robin's case which is indistinguishable from the present case insofar as concerns some of the representations impugned in this proceeding.
48 Having considered the subsequent treatment of Glorie in the authorities, Gyles J said (at 459):
"In these circumstances, I am not relieved of the responsibility of deciding whether Glorie is consistent with Nelson. In my opinion, the better view is that it is not. A public relations exercise of the kind explained by Morling J cannot be categorised as the promotion of the sale of timber or as otherwise within the central conception of trade or commerce as explained by the High Court. It is not an aspect or element of transactions which of their nature bear a trading or commercial character. I cannot find the kind of indirect promotion of timber products in that case that was found about cigarettes in AFCO. That is certainly not the manner in which Morling J analysed the matter, as the passage cited above reveals.
Even if I be wrong about that, in my view the present conduct is one step removed from Glorie. In that case, it was the timber industry which was being promoted and explained. Here, the conduct is not directed to the trade or commerce associated with the airport at all - it is concerned with the potential subdivision of the applicant's land. Even if it were possible to categorise the conduct in Glorie as being the indirect promotion of timber products, the conduct here cannot be seen as the indirect promotion of the services provided by Canberra Airport. It was political in purpose and effect, albeit with the aim of protecting the business from interference in the future. In my opinion, to hold otherwise would be to ignore the reality that the High Court in Nelson made a deliberate choice between a wide and narrow view of the phrase "in trade or commerce" in s 52 and chose the latter."
49 I am, with respect, in complete agreement with Gyles J's conclusions concerning Glorie. I am in consequence unable to accept the first of the "refinements" advanced by Village in the broad terms in which it is cast. As put, it does not refine Concrete Constructions. It subverts it. A corporation may take many actions to protect or promote its business interests. Some may well constitute conduct for s 52 purposes. Others will not. One hesitates to give examples of the latter. But I would suggest public advocacy of legislative changes to taxation or tariff laws, or opposition to a land resumption for highway purposes would be unlikely to be characterised as conduct in trade or commerce. I will return below to the subject of public debate.
50 The general point to be made is that Village's first refinement substitutes another and over-inclusive test for that mandated by Concrete Constructions.
51 The second refinement propounded by Village, as best I understand it given its mutations, is said to be based on the recent decision of the Full Court of this Court in Hearn v O'Rourke [2003] FCAFC 78. The proposition sought to be justified by it is that, because an ANEF is inextricably linked with CIA's business (even if CIA is not legislatively required to have one), statements made about it are made in trade or commerce.
52 Hearn v O'Rourke, it must be emphasised, was a decision on a strike out application. The "in trade or commerce" question related to representations made to two young teenagers and their parents to solicit the former's participation (without remuneration) in a documentary film being produced for commercial purposes. A majority of the court was unprepared to conclude that the case was so clear as to justify striking out the Statement of Claim. It reasoned thus:
"It needs to be said at the outset that the Statement of Claim borders on the unduly uninformative. Nonetheless, it could properly be inferred from the facts pleaded and agreed that the conduct engaged in by the first respondent was aimed at securing the participation for particular purposes of both applicants in interviews which would provide primary material for the proposed documentary. As we noted earlier, it was accepted by the parties that the first respondent's conduct in the matter occurred in the course of the second respondent's production of a film for profit.
Notwithstanding the silence of the Statement of Claim on the matter, it could again be proper to infer that the activity which the second respondent was undertaking when that conduct was engaged in was the identification of prospective participants in the projected documentary who would provide the material that was likely to be used by the respondents in the documentary they wished to make. There could be no documentary unless appropriate interviews were secured. Securing such interviews, in our view, could properly be said to be central to the trading or commercial activity in which the second respondent was engaged in producing a film for profit. Correspondingly, the conduct engaged in by the first respondent for that purpose could itself be found to be in trade or commerce.
In reaching this conclusion we are not suggesting that the relationship of the second respondent with the applicants was a commercial one. To this extent we agree with the conclusions of both the primary judge and Dowsett J. Nonetheless we are satisfied that the conduct impugned could possibly be found to have occurred in a dealing with the applicants which was integral to an activity of the second respondent which was itself of a commercial character.
For our own part we do not find the analogy between the making of a film and the construction of a building for the purposes of sale a helpful one. The particular surroundings to which the words "trade and commerce" have to adapt themselves: Federal Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355 at 378-379; are those of film production for profit. Considering the matter from the standpoint of the respondents, what they were asking the applicants to provide was the material (a) that would, potentially, furnish some of the visual images and stories of the film to be produced and (b) that would, potentially, give interest and value to the film. The applicants were not being asked to enter a commercial or, for that matter, an employment relationship with the respondents. Nonetheless, we consider it to be reasonably arguable that they were being asked to enter into a relationship which, for the respondents, actually effectuated part of their commercial purpose.
We acknowledge that there is an apparent curiosity in our conclusion though it is one countenanced by the majority judgment in Concrete Constructions. The activity in question may be able to be characterised as bearing a trading or commercial character although the particular dealing which carries the activity into effect and in which the impugned conduct occurs does not itself give rise to a commercial relationship."
53 I am, with respect, unable to see how this decision provides any support at all for the proposition advanced by Village. It may be accepted that, though not legislatively required, the ANEF's were inextricably linked with CIA's business in the same way that in Hearn having interviewees were indispensable to the film to be produced. But it is the next step that sets this matter apart from Hearn.
54 In Hearn there was no question of a representation being made about the interviewees. A dealing was carried on with the prospective interviewees and their parents in which the alleged misrepresentations were made. That dealing arguably carried into effect an activity which had a trading or commercial character. Hence, arguably, the representations were in trade or commerce. In the present matter there were merely representations about ANEF2050 being applicable and in force. The mere making of them no matter to whom or in what context cannot preordain that they were in trade or commerce simply because an ANEF is practically indispensable to CIA's business. And so, despite the suggested "refinements", one is cast back to the Concrete Constructions principles as they apply to the conduct alleged in this case.