Facts: Concrete Constructions (appellant) was constructing a building in Grosvenor Square, Sydney in July 1987. Nelson (respondent) was an employee of Concrete Constructions working on the site. He sustained injuries when he fell to the bottom of an air-conditioning shaft while attempting to remove a grate positioned at the shaft’s entry point. He alleged the incident was caused by Concrete Constructions’ foreman who wrongly informed him that the grates were fixed by three bolts on each side. One of the grates gave way, as it was not affixed by bolts or otherwise.
Issue: Whether the conduct occurred in “trade or commerce” in pursuant to s 52 of the Trade Practices Act 1974 (Cth)?
Note: Although this case regards Trade Practices Act 1975 (Cth) which existed prior to introduction of Competition and Consumer Act 2010 (Cth), the prohibitions are substantially similar and the same principles hold true.
Held: The appeal by Concrete Constructions was allowed. The section did not apply to all conduct in the course of business operations, only to conduct in the course of activities or transactions that have an essentially trading or commercial character. In this case, a direction by a foreman to an employee did not have that character.
Ratio: “trade or commerce” does not apply to all conduct in the course of business operations, conduct where the nature of the activities or transactions bears a trading or commercial character.