Case: Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594
Outcome: applied
The respondents refer to the authoritative construction of the expression "in trade or commerce" in s 52 of the TP Act given by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 ( Concrete Constructions ). In support of their submission that representations to government authorities pursuant to the requirements of legislation lie outside the notion of conduct in trade or commerce, the respondents cite Village Building Co Ltd v Canberra International Airport Pty Ltd (No 2) [2004] FCA 133 ; (2004) 134 FCR 422 ( Village Building) at [57]-[58], affirmed on appeal at Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330 at [50] - [55] ; and my own decision in RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22 ( RGC v Wimmera ). 25 In Concrete Constructions , the High Court held that an internal communication from one employee to another in their ordinary activities in building work was not conduct engaged in by their employer company in trade or commerce (at 605). The High Court held that what is required is that the relationship between the corporation and the representee be of a trading or commercial character, and that the conduct of the corporation have taken place in the course of that relationship. 26 In their join judgment in Concrete Constructions , Mason CJ, Deane, Dawson and Gaudron JJ said (at 603): ... the words 'in trade or commerce' refer to 'the central conception' of trade or 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 some overall trading or commercial business. 27 Their Honours also said (at 604): What the section [s 52 of the TP Act ] 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...In some areas, the dividing line between what is or 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. 28 In Village Building , representations made in the nature of forecasts of aircraft traffic noise levels in the vicinity of Canberra International Airport were provided by the Airport's lessee and operator, Canberra International Airport Pty Ltd (CIA), to the Minister for Transport and Regional Services pursuant to the Airports Act 1996 (Cth). As well, the forecasts were published on the company's website and were used in public debate concerning, inter alia, an application to rezone land south of the airport and under the flight path as residential. 29 The applicant for relief was a developer of land in the area south of the airport. 30 Finn J held that the conduct alleged against CIA was not conduct in trade or commerce for the purposes of the TP Act , and an appeal against his Honour's decision was dismissed by the Full Court. 33 No doubt the alleged representations were made by Novapharm in trade or commerce in a broad non-s 52 sense. However, in Concrete Constructions the High Court (at 603) rejected the view that the expression "in trade or commerce" in s 52 referred to "the "immense field of activities" in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business, and held that it bears the narrower meaning to which I referred above. 34 Mr Glueck responded to Novapharm's first ground of attack by submitting that Novapharm did not make representations in trade or commerce to the APO or to the USPTO because all representations made to them were made by Novapharm's Australian and US patent attorneys respectively. His submission must be that the representations that were made by those patent attorneys were not in law representations by Novapharm. In making this submission, Mr Glueck was accepting, in effect, that in suing Novapharm for having made the representations, he had sued the wrong entity, since it was the patent attorneys alone who were responsible for the alleged misrepresentations. It is necessary for Mr Glueck to appreciate that it is possible for a company to make a representation through its agent. In any event, allegations that Novapharm had made the representations in trade or commerce permeate the proposed amended statement of claim and lie at the heart of Mr Glueck's claims. 35 In the result, the proposed amended application and the proposed amended statement of claim should not be allowed to be filed because the former would claim relief, including accessorial relief, based on alleged contraventions of s 52 of the TP Act , and the latter would plead claims for such relief.