Case: Village Building Co Ltd v Canberra International Airport Pty Ltd [2003] FCA 1195
Outcome: cited
Jones, in opposing the motion, made the following submissions: (1) In summary, it submitted that none of the criteria for making an order for the determination of a separate question are satisfied there will be overlap of both witnesses and issues. Senior Counsel for David Jones submitted that the only case of which he was aware in which the trade or commerce issue had been separately 'hived off' is Village Building Co Ltd v Canberra International Airport Pty Ltd [2003] FCA 1195 and he observed that there were two critical factors in that case: first, his Honour had already determined to hive off the question as to whether or not one of the parties was carrying on business; and second, Village, ostensibly the opposing party, did not, his Honour recorded, positively oppose the application; moreover, he submitted, nobody suggested there would be significant overlap of witnesses or issues. So that case is no guide to the present case. (2) Turning to the pleadings, the allegation in para 4 that the Institute carries on a business that is denied in the course of which it conducts research and analysis for the purpose of reward that is admitted albeit with an additional qualification. It is clear that the Institute makes available its research and paper provision services for reward to non-government and private enterprises. Additionally, its recent accounts show it earned some $35,000 of income from that activity. (3) There is no attack by David Jones on the publication of the Discussion Paper. These proceedings do not seek to restrain the publication of discussion papers but, fundamentally, the allegation is that the media release, having regard to its terms and the context in which it was issued, was issued for the purpose of, or for purposes which include, promoting the sale of the very paper which it publicised and promoting the Institute generally, including its services which are available for reward and promoting donations and sales of other books. (4) If the Institute is selling the Discussion Paper and makes a media release for the purpose of publicising that Discussion Paper, the proposition that a statement made in that media release is beyond all notions of trade or commerce is one with which David Jones cannot agree. There is a plain trading transaction which takes place when the Institute sells the Discussion Paper. The nature of the conduct engaged in is something which is critical in considering whether or not the conduct is in trade or commerce. (5) A company which has charitable objects may still engage in trade or commerce. For example, that company may lease premises; in the leasing transaction it may make a representation that it can afford to pay rent of 'x' dollars. If that is a misleading representation, it cannot be said that that conduct is not in trade or commerce. (6) David Jones disputes the Institute's pleading that the media release was issued in the course of addressing issues with a view to promoting an ultimate change in the law, by informing the community of these issues and to promote public debate amongst law makers and legislators. David Jones submits that the purpose of the inclusion of the David Jones name in the media release was to give the media release 'legs' and attract publicity. Effectively accusing David Jones of being a corporate paedophile, without even the explanation of what that means, which appears in the Discussion Paper but not in the media release, causes all the sting and all the connotations of that combination of words to be associated with the name David Jones. On the other hand, in the Discussion Paper, which contains the explanation and the serious allegations about various companies, David Jones is not mentioned. Only in the annexures are there references, with respect to two photographs, to David Jones, in the context of 'possible mild' sexualisation or 'implicit alleged sexualisation'. This is not within a 'bull's roar' of the content of the allegations made in the media release. (7) In distinguishing between conduct in trade or commerce and fair, genuine, academic debate about a serious issue, it is important to know whether the representations David Jones allegedly made are true or false. If they are false, then the conclusion that the media release was a 'publicity stunt' for the purpose of promoting the Institute can be more easily reached a conclusion which tends to foreclose a finding that the relevant conduct was fair, genuine academic debate. (8) The analysis which the Institute says should be confined to the liability issue is the very matter David Jones wants to rely upon, among other matters, in relation to the threshold issue sought to be separated. That the statements in the media release were made in academic debate is open to challenge. When the gravity of the representations in the media release are compared to the absence of any statement in the Discussion Paper referencing the conduct of David Jones, the contrast is 'breath-taking'. That is a very good guide it does not have to be determinative, but a good guide to support David Jones' position that this is all about publicity. If it is all about publicity it is hardly about engaging in active debate and more likely to be regarded as an attempt to use the media to promote the goods and services which the Institute is offering. (9) David Jones' first proposition is encapsulated this way: that one cannot determine whether conduct was in trade or commerce without determining whether the relevant conduct includes the making of the representations alleged. In other words, the separate question is sought to be dealt with in a vacuum so far as the representations are concerned, and David Jones submits that is inappropriate. (10) Second, the order sought on the motion is that the question, to be decided separately from and in advance of the hearing of the other issues in the proceedings, is whether the conduct of the first respondent in making the media releases complained of was conduct in trade or commerce. That is language which attracts the claim in para 11 of the statement of claim (see [5] above); it does not deal with para 12 thereof (see [5] above) and hence will not resolve all the issues in the proceedings anyway. Senior Counsel for the Institute subsequently sought leave to amend the terms of the separate question for decision in the notice of motion to include the words 'or any representation that may be conveyed by either release' after the words "statement of claim' and to amend para 18 of the Institute's amended defence by the inclusion of the words 'nor any representation that may be conveyed by either release', after the words 'Further Media Release'. I granted such leave. (11) Third, even if the separate question was to address para 12 of the statement of claim, David Jones submits that the threshold issue sought to be separated cannot be determined without resolving the dispute as to the content of the representations. David Jones submits that the very character of the representations informs the question of whether or not they constituted conduct with a commercial or trading end or were simply or merely fair and open debate about a serious issue; and that interrelation which David Jones wants to pray in aid is prayed in aid by the respondents themselves in para 18 of the further amended defence. (12) Fourth, and again this draws on arguments already outlined, the truth or falsity of the representations will inform the question as to whether the representations which were made were conduct in trade or commerce; demonstrating the absence of support in the Discussion Paper for the content of the representations pleaded will support the conclusion that the representations were for publicity purposes and not part of rational debate. (13) Dr Hamilton is the second respondent; he is also the Executive Director of the Institute. It is probable that he will give evidence on the trade and commerce issue. It is probable that his evidence would also be relevant to the question of whether or not the statements he made were mere expressions of opinion. He will be cross-examined if he gives evidence to say they were not; in David Jones' submissions nobody could have those opinions having regard to the relevant material, that is, the Discussion Paper. If he says to the contrary, it will be suggested to him that he is not telling the truth and there will be a credit issue. If he is giving evidence on the trade and commerce issue, it will be suggested to him, contrary to any evidence he may give to the case being put, that the media release and representations are not part of a serious discussion, that no rational person could say there is any support for them in the Discussion Paper. He will be cross-examined about that and if he does not agree with that proposition, his evidence will be contested. (14) The Institute's submission that expert evidence is likely to be called as to whether anyone is likely to be misled by the representations, or whether they are recognised as part of a public debate, itself recognises the inevitable overlap even on the expert evidence; the public debate point is the Institute's trade or commerce point. The Howie evidence (Exs. 1 and 2) indicates that there is going to be a lay witness on trade or commerce. One cannot exclude the possibility it will be the same witness, or other lay witnesses, dealing with the questions relating to liability, and that is likely, and the likely candidate, one would imagine, would be Dr Hamilton. For the reasons already indicated his credit will be called into question on both issues. His evidence is relevant to both, and there is an interrelationship between the evidence on which he can be cross-examined, whether he gives the evidence in chief or not, it cannot be disentangled. (15) David Jones will be relying on the heading 'Corporate Paedophilia' as part of the context in which the representation should be found. The Institute will wish to diffuse that by saying that would be understood in the scientific way in which it is discussed in the Discussion Paper. The Discussion Paper is not part of the media release. If that was sought to be made out, there would have to be evidence about that. (16) Other difficulties in relation to the separate question, by reason of the issues, arise. If somebody called on the trade or commerce issue is cross-examined in the way suggested, and your Honour takes a view of that person's credit and David Jones wins the trade or commerce issue, the likelihood is your Honour will not be able to hear the rest of the case. That is inefficient. That is one of the key considerations, the cases say, that should be taken into account. (17) David Jones also says it is a factor to be taken into account that this bifurcation process can result in appeals. So the decision can go either way. One party appeals. And if there is a successful appeal it has to come back to your Honour. Or if your Honour is permitted to do the rest of it subject to the credit findings and if it was a case, for example, that the rest of the case has to be heard, the whole process is delayed. That is just one of the examples as to why there are general warnings against splitting of cases. (18) One should add that obviously David Jones is not here to debate the question as to whether the Institute's conduct was in trade or commerce. But the proposition that a company has altruistic motives is not determinative of whether or not its conduct is in trade or commerce. Although some of the arguments from both sides went to the merits or otherwise of the issue reflected in the question posed in the notice of motion, evident from the submission referred to in [20](18) above, this is not the occasion on which to elaborate on that issue. The issue now before the Court is whether the question identified in the motion, as amended with the leave of the Court, if resolved one way, would dispose of the proceedings or significantly shorten them with an attendant saving in time and money.