FEDERAL COURT OF AUSTRALIA

Hi-Rise Access Pty Ltd v Standards Australia Limited [2017] FCA 604

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY J:

1.    INTRODUCTION

1    In this proceeding the applicant, Hi-Rise Access Pty Ltd (Hi-Rise), is a consulting and engineering company which designs, fabricates and installs equipment and systems for working at height. The respondent, Standards Australia Limited (Standards Australia), is Australia’s peak standards body, with responsibility for facilitating and managing the development and maintenance of Australian standards (Standards) and related handbooks, guides, technical specifications and technical reports.

2    From 1998 to December 2013 Standards Australia facilitated the development of a Standard primarily concerned with safe working at height: “Australian Standard AS 1657-2013 - Fixed Platforms, walkways, stairways and ladders - Design, construction and installation” (the 2013 Standard). It published that Standard in December 2013, announcing the publication by a media release on 16 December 2013 (the media release). That Standard superseded an earlier Standard published in 1992: “Australian Standard AS 1657-1992 Fixed Platforms, walkways, stairways and ladders - Design, construction and installation” (the 1992 Standard).

3    In the proceeding Hi-Rise alleges that Standards Australia represented that, in general, Standards ensure goods and services are safe, are based on sound industrial, scientific and consumer experience, set out specifications and procedures designed to ensure that products, services and systems are safe, and contribute to improved safety and health. In the alternative, Hi-Rise alleges that Standards Australia made representations of opinion in that regard. Hi-Rise further alleges that Standards Australia represented, in relation to the 2013 Standard specifically, that the requirements of that Standard make it more safe and less risky for users than the requirements under the 1992 Standard, and that the requirements under the 2013 Standard provide greater safety for users, ensure building sites provide the optimal level of safety for users and are primarily intended to provide safe access and reduce the risks to the safety of users. In the alternative, Hi-Rise alleges that Standards Australia made representations of opinion in that regard.

4    Hi-Rise alleges that these representations constitute misleading or deceptive conduct in trade or commerce, in breach of s 18 of the Australian Consumer Law (the ACL) in Schedule 2 of the Competition and Consumer Act 2010 (Cth). Amongst other things it contends that the requirements under the 2013 Standard in fact make it less safe and more risky for users than the requirements under the 1992 Standard, and the 2013 Standard does not provide greater safety to users, does not ensure building sites provide the optimal level of safety to users, and is not primarily intended to provide safe access and to reduce the risks to the safety of users.

5    Standards Australia admits that it made the representations about the general benefits of Standards as representations of fact. It also admits some of the representations about the 2013 Standard as representations of opinion. However, it denies that any of the representations were made “in trade or commerce” as required by s 18.

6    I have found that the impugned statements conveyed some of the alleged representations, but I am not persuaded that they were made “in trade or commerce”. The evidence shows that Standards Australia operates in a quasi-government role in conjunction with the Commonwealth Government to facilitate the development of Standards and to promote the benefits of Standards and standardisation in the public interest. In my view it does not do so in pursuit of trading or commercial objectives. I consider that Standards Australia’s activities in developing, publishing and promoting Standards are directed to the interests of the Australian community because of the economic, regulatory, safety and other benefits that flow from standardisation. It is uncontentious that Standards Australia earns significant income through royalty payments from SAI Global Limited (SAI), the company to which it has granted a worldwide licence to publish, distribute and sell Standards and related products. However, in my view the evidence does not support the conclusion that Standards Australia’s relevant activities were designed to increase sales of Standards for the commercial benefit of either itself or SAI.

7    In my view the relevant activities of Standards Australia were not, by their nature, of a trading or commercial character and its conduct was therefore not “in trade or commerce”. As a result, the proceeding must be dismissed.

2.    THE EVIDENCE

8    The parties relied upon the following witness statements and their annexures:

(a)    for Hi-Rise:

(i)    Mr David Davis, Director of Hi-Rise, dated 1 June 2015, 9 July 2015 and 1 February 2016; and

(ii)    Mr David Mack Batey, Engineer, dated 1 June 2015;

(b)    for Standards Australia:

(i)    Ms Kareen Riley-Takos, General Manager, Standards Development at Standards Australia, dated 25 June 2015 (which incorporates her affidavit sworn 2 April 2015, together with annexures);

(ii)    Mr Adam Stingemore, General Manager, Stakeholder Engagement and Public Affairs at Standards Australia, dated 25 June 2015; and

(iii)    Mr Damith Rupasinghe, Project Manager at Standards Australia, dated 25 June 2015.

9    The witness statements were received without objection and neither party sought to cross-examine.

10    The parties also relied on voluminous documents in a four lever-arch folder Court Book filed by Hi-Rise, and a two lever-arch folder Application Book filed by Standards Australia (being the annexures to Ms Riley-Takos’ affidavit). The Court Book and the Application Book contain a number of duplicate documents, many of which appear to have little probative value. Accordingly, I informed the parties that the Court would only receive into evidence those documents or parts of documents which were specifically tendered or specifically relied on in written or oral submissions. I directed the parties to file a Court Book or tender bundle at the conclusion of the trial which contained only those documents specifically tendered or specifically relied on by the parties. The parties did not, however, attend to this.

The order for a separate trial

11    On 4 May 2015 I made orders for the separate trial of the issues raised in paragraphs 1-22 of the Amended Statement of Claim (ASOC) (excluding paragraphs 15A, 18A and 18B) and the corresponding paragraphs of the Amended Defence. As a result, the present phase of the proceeding relates to:

(a)    whether the alleged representations were conveyed by Standards Australia; and

(b)    whether any or all of those representations were made “in trade or commerce”

and does not concern whether any of the representations were false or misleading.

3.    THE FACTS

12    I now set out my view of the facts.

Hi-Rise

13    Hi-Rise is a consulting and engineering company established in 1987 which specialises in height-safety, fall protection and suspended access. It designs, fabricates and/or installs equipment or systems for working at height including walkways, ladders, stairs, platforms, handrails, guardrails and anchorage systems.

14    The 2013 Standard is significant to Hi-Rise’s business as it sets out requirements for the design, construction and installation of fixed platforms, walkways, stairways and ladders which are intended to provide safe means of access to, and working at, places normally used by operating, inspection, maintenance and servicing personnel. The scope of the 2013 Standard closely coincides with the type of design, construction and installation work that Hi-Rise undertakes.

15    Hi-Rise is regularly invited by builders or building owners to tender to provide equipment for working at height. Each invitation to tender document has included a requirement that the successful tenderer must comply with any applicable Standards, as well as with legislative requirements such as occupational health and safety legislation.

16    The 2013 Standard has been incorporated into a large range of commercial supply contracts and is referenced in the Building Code of Australia (the Building Code), developed under the auspices of the Australian Building Codes Board, which requires compliance with applicable Standards. Relevant tender specifications almost always require that height-safety systems comply with the 2013 Standard (or its predecessor, the 1992 Standard). The 2013 Standard provides the only industry-accepted requirements for such systems and every firm in the relevant industry is required to comply with that Standard. Hi-Rise always tenders on the basis that the work it undertakes and the equipment it supplies will comply with all applicable Standards and legislative requirements. I infer that to be the case across what I describe as “the working at height industry”. As a result, the 2013 Standard is an essential reference and compliance document for companies in that industry and it was effectively compulsory for persons in that industry to purchase it.

Standards Australia

Standards Australia’s structure

17    Standards Australia originated in 1922 as the Australian Commonwealth Engineering Standards Association. In 1929 it amalgamated with the Australian Commonwealth Association for Simplified Practice and was renamed the Standards Association of Australia. In 1950 the Standards Association of Australia was constituted as a body corporate under a Royal Charter granted by King George VI, to develop Standards in the national interest. In 1988 the Standards Association of Australia removed the word “Association” from its name. In 1999 Standards Australia ceased to operate under the Royal Charter and it was incorporated as a public company limited by guarantee, named Standards Australia International Limited (the name Standards Australia Limited being unavailable at the time). In 2004 it was renamed Standards Australia Limited.

18    As a public company limited by guarantee Standards Australia has no shareholders. It has members (Members) that represent various interested bodies and organisations.

19    Article 11 of the Constitution provides that its Members may include up to 10 bodies nominated by the Commonwealth government (including government departments and instrumentalities involved in the application and development of Standards), up to two representatives from State or Territory Governments, up to 80 bodies to represent industry, up to five bodies to represent small business, up to five bodies to represent consumers, up to five bodies to represent research and education areas, up to 15 bodies nominated for their special interests or skills, and up to 15 bodies to represent the Standards and conformance technical infrastructure of Australia.

20    Standards Australia currently has 74 Members, comprising representatives from the Commonwealth Government, from State Governments (except Queensland), various professional, trade and industry associations, consumer organisations, trade unions and the CSIRO.

21    Standards Australia’s Council (the Council) is its ultimate governing body. The councillors are appointed by the Members (with the number of councillors each Member is entitled to appoint being determined by the Council and specified in the Membership Rules), and up to 15 honorary councillors appointed by the Council itself.

22    The Council elects:

(a)    up to nine members of the Accreditation Board for Standards Development Organisations (ABSDO) which was established by Standards Australia to accredit autonomous Standards Development Organisations (SDOs); and

(b)    the directors.

23    Through the Board of Directors (the Board), the directors have responsibility to manage the business of the company in accordance with its objects and to ensure its financial well-being. The Board is empowered to appoint new Members to Standards Australia and to appoint one person to the ABSDO.

Standards Australia’s role

24    From its commencement Standards Australia has been responsible for developing Australian Standards in the national interest. Standard Australia’s objects, set out in Article 7 of its Constitution (the Constitution), include:

(a)    to prepare and maintain standards as a principal activity both at the national and international levels and to promote the general adoption of standards (including international standards) as well as preparing other related publications, handbooks, codes and guides including but not limited to those relating to structures, commodities, materials, practices, operations, services, safety, environmental, economic and business efficiency, consumer matters, and from time to time revise, alter and amend the same;

(b)    to utilise all available forms of communications and media to ensure that the standards and related services needs of all stakeholder groups are met, with particular emphasis on the needs of Subscribers and existing and potential customers;

(c)     to coordinate the efforts of business and industries for the improvement and standardisation of but not limited to materials, products and processes in relation to fitness for purpose, terminology, classification, testing, variety, reduction, interchangeability, design and safety generally in order to promote economic and business efficiency;

…

(i)    to deliver information and education services including but not limited to seminars, workshops and conferences in the cause of education in the application and benefits of standardisation;

(j)    to prepare and make available or distribute materials associated with standardisation including but not limited to handbooks, codes, guides and supplements as may seem conducive to the objects of the Company;

…

(Emphasis added.)

25    Standards Australia is the peak Australian body responsible for facilitating the preparation and maintenance of Australian Standards and ensuring that they are contemporary, technically up-to-date and internationally aligned where possible. It represents Australia in the development of international Standards including at the International Standardisation Organisation (ISO) and the International Electrotechnical Commission (IEC) and in relation to the subsequent adoption of international Standards as Australian Standards. It also facilitates and manages the development of Standards-related handbooks, guides, technical specifications and technical reports.

26    In a publication by the Department of Innovation Industry, Science and Research (the Department) titled “Australia’s Standards and Conformance Infrastructure” dated August 2011 (the August 2011 publication) the Minister for Innovation, Industry, Science and Research (the Minister) described Standards Australia’s role in the following terms:

Standards and conformance are the backbone of everyday life. They give confidence to consumers, certainty to business, and clarity to the scientific community. Every time we read a label, we affirm our trust in the unsung Australian institutions in this publication. We are right to do so.

Australia has developed a world class standards and conformance infrastructure over many decades, aligned with our trading partners and responsive to our needs.

Four key bodies work together with the Government to meet consumer needs, support domestic and export-orientated industries and provide a firm foundation for investment:

    The National Measurement Institute, responsible for metrology - the science of measurement;

    Standards Australia, responsible for the development of consensus based documentary standards;

    The National Association of Testing Authorities, responsible for the accreditation of testing laboratories; and

    The Joint Accreditation System of Australia and New Zealand, responsible for the accreditation of certification bodies.

27    The August 2011 publication described Standards Australia as a not-for-profit organisation, and Australia’s peak non-government standards development body. The Department said that Standards Australia “is charged by the Australian Government to meet Australia’s need for contemporary, internationally aligned standards and related services.” (Emphasis added.)

The Memorandum of Understanding with the Commonwealth Government

28    Standards Australia operates under a Memorandum of Understanding with the Commonwealth Government dated 17 May 2013 (the MoU). Under the MoU the Commonwealth Government recognises Standards Australia as the peak non-government Standards body in Australia.

29    The MoU describes the Commonwealth and Standards Australia’s responsibilities as collaborating to assist the community to strengthen Australia’s national standards system. It recognises that “many community benefits… flow from standardisation, for example in improvements in quality, community safety, the environment, business efficiency and the competitiveness of Australian industry in national and international markets”.

30    Pursuant to the MoU the Commonwealth:

(a)    aims to promote an internationally recognised Standards and conformance infrastructure;

(b)    seeks to encourage the further development of that infrastructure;

(c)    recognises Standards Australia as the peak non-government Standards body, and as a not-for-profit organisation;

(d)    recognises Standards Australia as a key organisation in Australia’s Standards and conformance infrastructure in coordinating and developing knowledge and international experience in Standards development;

(e)    recognises Standards Australia as the peak non-government Standards body in Australia, which encompasses the coordination of the development of Australian Standards and also Australia’s participation in the development of international Standards; and

(f)    recognises the ABSDO, established by Standards Australia as a separate body for the accreditation of SDOs, to develop Australian Standards.

31    Under the MoU, Standards Australia’s role includes the following:

(a)    developing national and internationally harmonised Standards and other solutions;

(b)    co-ordinating national and international standardisation initiatives, knowledge and information exchange;

(c)    accrediting non-government organisations to develop Standards through SDOs;

(d)    working with governments, industry and community in the design, development, delivery and implementation of innovative solutions in relation to Standards; and

(e)    facilitating and managing the development and maintenance of Standards used in connection with consensus-based voluntary Standards developed by or on behalf of Standards Australia or by accredited SDOs.

32    Pursuant to the MoU, the Commonwealth undertakes that it:

(a)    will encourage government legislative and regulatory bodies to use the process of developing Standards and related documents provided by Standards Australia rather than develop their own standards and documents and, where appropriate, participate in the development of Standards that are in a form suitable for referencing in legislation, regulations and purchasing guidelines;

(b)    will encourage its agencies to consider the merit of providing financial or in-kind support on a case-by-case basis for the development of regulatory Standards; and

(c)    may provide financial assistance in relation to activities contributing in net terms to the welfare and wellbeing of the Australian community as a whole that would not occur if left entirely to the private market.

33    Pursuant to the MoU, Standards Australia undertakes that it:

(a)    will provide national leadership for establishing Standards;

(b)    will make the Standards development process accessible to the general public, including by making all significant documents that define the Standards development process (known as Standardisation Guides) readily available on the internet, and promoting and providing opportunities for public comment on draft Standards;

(c)    wherever possible give priority to requests for work the Commonwealth considers necessary for the successful attainment of public and national interest objectives;

(d)    in consultation with relevant stakeholders, undertake a net benefit analysis (Net Benefit) to justify the setting of priorities for the development of new, or revision of existing, Standards and make such Net Benefit analysis available upon request;

(e)    ensure that stakeholders are given opportunities for input into priorities for Standards development including small business, consumer organisations, industry and government;

(f)    make every effort to ensure a balanced representation on technical committees, including representatives of small-business, academic, consumer and other community interests and enterprises involved in overseas and interstate trade, as well as enterprises producing for the local market; and

(g)    in its role as Australia’s representative on international bodies, it will act in the national interest and recognise the priorities of the Australian community.

34    The parties jointly undertake to:

(a)    encourage full participation of all concerned, especially public purchasing authorities, in the preparation and use of Standards;

(b)    exert their best efforts to promote understanding and awareness of Standards and their uses through educational, training and promotional activities; and

(c)    use their best endeavours to promote the role of Standards Australia and the Australian standardisation process within governments, industry and the community.

Not-for-profit status

35    Article 3 of the Constitution provides that:

…the income and property of the Company will be applied solely towards the promotion of the objects of the Company as set forth in this Constitution, and no portion thereof will be paid or transferred directly or indirectly by way of dividend, bonus, or otherwise by way of profit to any Member.

Article 6 provides that upon winding-up or dissolution of the company any amount remaining after satisfaction of debts and liabilities is not to be paid or distributed to the Members. Any surplus is to be given or transferred to some other institution having objects similar to the objects of Standards Australia.

36    Standards Australia’s “2013 Annual Review” for the financial year ended 30 June 2013 (the 2013 Annual Review) said that the first principle of its financial model is:

To ensure the organisation is financially sustainable in the short, medium and long-term; that is, to live within its means, so it can fulfil its objectives as Australia’s peak standards body in perpetuity.

(Emphasis added.)

37    Standards Australia’s “Detailed Strategic Plan 2015-2019” (the Strategic Plan) said:

Standards Australia must maintain a financial model that combines both a sustainable level of contribution to operating expenditure funded by the investment corpus to ensure financial sustainability, and the objective to maintain the corpus in perpetuity. Standards Australia must achieve the right balance between meeting short term demand for standards development, whilst maintaining long term financial sustainability.

(Emphasis added.)

38    Ms Riley-Takos described Standards Australia as a not-for-profit company, and the Commonwealth Government accepted that description in the MoU. Although it is plain that Standards Australia receives significant income through the sale of Standards by SAI, I nevertheless consider such a description is appropriate.

Standards Australia’s financial position

39    In November 2003 Standards Australia entered into a Publishing Licence Agreement (the Licencing Agreement) in which it granted SAI an exclusive worldwide licence to publish, distribute, market and sell Australian Standards and related publications in return for royalty payments. Since that date SAI has undertaken those activities, under licence from Standards Australia.

40    Standards Australia has two main sources of income and is clearly financially viable. The largest source is income from a significant investment portfolio and the other main source is income from royalties it receives from SAI from the sale of Standards and related products. Standards Australia’s 2012 Annual Review said that:

Standards Australia’s long term financial viability is dependent on returns from its long term investment portfolio, and to a lesser extent, royalties from the sale of standards publications.

41    The 2013 Annual Review confirmed that Standards Australia primarily funds its operations through revenue from its investments. It said:

The investment portfolio underpins our financial independence and differentiates us from other global National Standards Bodies who are dependent on the proceeds from the sales of Standards, and industry and government support.

(Emphasis added.)

42    Standards Australia’s Annual Reviews shows that:

(a)    in the 2012 financial year, its total revenue was approximately $18.28 million, of which royalties from SAI’s sales of Standards and related products accounted for about $3.69 million;

(b)    in the 2013 financial year, its total revenue was approximately $19.39 million, of which royalties accounted for about $3.879 million. The largest source of revenue was investment revenue of $10.65 million, derived from an investment portfolio valued at approximately $216.9 million; and

(c)    in the 2014 financial year, its total revenue was approximately $21.22 million, of which royalties accounted for about $4.3 million. Again, the largest source of revenue was investment revenue of $12.26 million, derived from an investment portfolio valued at approximately $238.1 million.

The development of Standards

43    After Standards Australia receives a request or project proposal for the development of a Standard, the ABSDO accredits an autonomous SDO to develop the particular Standard, under the auspices of Standards Australia. The SDO convenes a committee, usually known as a technical committee, comprised of persons nominated by Nominating Organisations, which represent the views of large groups of stakeholders with an interest in the proposed Standard. The technical committee has responsibility for developing the content of the Standard. As at July 2013 there were 2,471 Nominating Organisations and 352 active technical committees.

44    Standards Australia publishes “Standardisation Guide 001: Preparing Standards” (Standardisation Guide 001) on its website. It says:

The basis for the composition (or “constitution”) of a TC [technical committee] is to ensure balanced participation by those interests that will be significantly affected by the resulting Standard. Individual members of a TC are selected by Nominating Organisations that may include, but are not restricted to, government bodies, industry associations, community-based and consumer organisations, employee organisations and professional, technical and trade associations.

45    Standards Australia also publishes “Standardisation Guide 002: Structure and Operation of Standardisation Committees” on its website. It says:

Technical Committees (TC) (also known as ‘Main Committees’) are the foundation of the standardisation process. They consist of individuals who are nominated by organisations that represent the views of large groups of stakeholders with a common area of interest.

46    Standardisation Guide 001 provides for Standards Australia to review all Standards published before August 2006 (an Aged Standards Review), on an ongoing basis, to ensure that they mirror contemporary practice, are technologically up-to-date and reflect current views on safety, quality and environmental impact. The outcome of the review will be one of either; (a) withdrawal of the Standard if it is no longer appropriate; (b) confirmation of the Standard if it is still appropriate; or (c) revision of the Standard if the subject is still relevant but its content is no longer appropriate.

47    The process of developing and/or reviewing a Standard is characterised by a search for consensus amongst the members of the technical committee. Standardisation Guide 001 sets out the following main steps in the Standards development process:

(a)    Standards Australia receives a request or project proposal for the development of a new Standard;

(b)    the proposal is assessed in accordance with various criteria (including committee capability and stakeholder support, resource availability, Net Benefit to the community, the availability of external funding, support for Australia’s legislative framework, and strategic alignment to the national interest and public policy issues) before a decision is made to approve or reject a project;

(c)    where a project is approved a technical committee is formed or the project is assigned to an existing technical committee;

(d)    the technical committee develops a draft version of the Standard;

(e)    the draft Standard is released for public comment for a period usually not less than nine weeks;

(f)    at the expiry of the period for public comment the technical committee responsible for the Standard must give serious consideration to all comments received and to determine whether any proposed changes will be incorporated into the standard;

(g)    once the draft Standard is complete (including any appropriate revisions arising from public comments):

(i)    a ballot of the members of the technical committee is undertaken to determine whether to approve the draft Standard as an Australian Standard;

(ii)    each technical committee member must vote on behalf of their nominating organisation; and

(iii)    if a technical committee member casts a negative vote, the technical committee is obliged to give thorough consideration to the reasons for the negative vote and to attempt to find a resolution that is acceptable to the committee as a whole;

(h)    a unanimous affirmative vote of the technical committee is the desired outcome but where that is not possible and there are unresolved negative votes, an ABSDO ruling provides that consensus can be deemed to have been achieved where:

(i)    a minimum of 67% of those eligible to vote have voted affirmatively;

(ii)    a minimum of 80% of votes received are affirmative; and

(iii)    no major interest involved with the subject of the Standard has maintained a negative vote;

(i)    in cases where there is a sustained objection by a major interest group, it is the responsibility of the Standards Development Committee, a committee of the Board of Standards Australia, to review the development and ballot process for the draft Standard to ensure the processes have been properly carried out, to seek to resolve technical concerns and/or disputes by convening a separate group of independent experts, and ultimately to arbitrate.

The development and publication of the 2013 Standard

48    The review of the 1992 Standard and the preparation of a revised Standard commenced in 1998, with a hiatus between late 2009 and mid-2011. It was not until after the development of the revised Standard had already commenced that the 1992 Standard became the subject of an Aged Standards Review.

49    The review of the 1992 Standard was undertaken by a technical committee named “Standards Australia Technical Committee SF-013 Platforms, Gangways, Stairways and Ladders” (the Technical Committee). It comprised an independent chairperson and representatives of WorkCover New South Wales, WorkSafe Victoria, the Australian Building Codes Board (ABCD) (representing the Commonwealth, State and Territory building and construction regulators), the Tasmanian Department of Justice, various industry and professional associations namely the Australian Industry Group, Engineers Australia, Safety Institute of Australia, Energy Networks Association, Ladder Manufacturers Association of Australia Ltd, Australian Rope Access Association and Australian Aluminium Council, and building and property associations, namely the Master Builders Australia (MBA) and the Property Council of Australia.

50    The terms of reference to this Technical Committee described its task as:

Standardisation in the field of safety requirements for the design, construction and installation of fixed platforms, walkways, stairways and ladders which are intended to provide a safe means of, and safe working at, places normally used by operating, inspection, maintenance and servicing personnel.

51    By about mid-2012 the Technical Committee had prepared a draft revised Standard (the Draft Standard) and the following events occurred:

(a)    on 20 July 2012 Standards Australia issued the Draft Standard to invite comment on its technical content, wording and arrangement, to be provided by September 2012 (the feedback period). It was issued as a draft and was not intended for use as a Standard;

(b)    during the feedback period the Technical Committee received a number of public comments in relation to the requirements of the Draft Standard, including comments by Hi-Rise. [Name redacted], the MBA’s representative on the Technical Committee, submitted adverse comments together with a report by Adjunct Professor David Caple (the Caple Report). The comments included assertions generally to the effect that:

(i)    allowing uneven or irregular rung spacing on ladders is dangerous for users and not as safe as the requirement for equal rung spacing as under the 1992 Standard;

(ii)    step-type ladders are not universally accepted, can be dangerous and therefore warning should be given, and provision should be made to ensure that persons who descend such ladders do so when facing the ladder;

(iii)    fixed platforms and landings should be level as any slope will increase the risk of injury;

(iv)    cleats are a known trip hazard and should only be provided if the walkway surface is not slip resistant; and

(v)    the technical specifications and criteria in the Draft Standard are generally more dangerous and risky to users than the 1992 Standard;

(c)    prior to finalisation of the Draft Standard the Technical Committee considered the comments and the Caple Report but it did not commission an independent scientific or engineering assessment;

(d)    on 19 August 2013 the Technical Committee completed a draft Preliminary Impact Analysis of the Draft Standard and sent it to the ABCD for review;

(e)    on 27 August 2013 the Draft Standard was issued to the Technical Committee for a ballot;

(f)    on 2 September 2013 the ABCD returned the draft Preliminary Impact Analysis with few suggested changes, which did not materially alter the Draft Standard. Those changes were accepted by the Technical Committee and the final Preliminary Impact Analysis was provided to the Building Codes Committee (the ABCD’s peak building technical advisory body);

(g)    the final Preliminary Impact Analysis said that the 1992 Standard was out of date, inadequate or in conflict with other Standards and that the major groups affected by issues with that Standard were those who own, design, certify and use fixed platforms, walkways, stairways and ladders. It said that the impacts of the 1992 Standard included that:

(i)    owners and designers were potentially exposed to legal liability and penalties in relation to provision of reasonable and safe access for users;

(ii)    regulators and certifiers were required to interpret often unclear and conflicting requirements in a number of different Standards; and

(iii)    users potentially face a higher safety risk due to inadequate provisions in the 1992 Standard and confusion in the marketplace.

The Preliminary Impact Analysis said that the Draft Standard was aimed at addressing those issues and providing clear design methodologies to enable the development of consistent and appropriate solutions for such facilities.

(h)    by 23 September 2013 all members of the Technical Committee had voted on the Draft Standard, and each member except for [name redacted] voted to approve it;

(i)    when Standards Australia informed the MBA that [name redacted] had voted not to approve the Draft Standard the MBA appointed a new representative to the Technical Committee who subsequently voted to approve the draft Standard.

52    Although SAI has an exclusive worldwide licence to publish Standards and related products, before me Standards Australia admitted that it published the 2013 Standard on 10 December 2013. I proceed on the basis of that admission.

Relevant Provisions of the Standard

53    Hi-Rise relies on two brief paragraphs in the 2013 Standard, under the headings “Scope” and “Objective” which state:

1.1    SCOPE

This Standard sets out requirements for the design, selection, construction and installation of fixed platforms, walkways, stairways and ladders that are intended to provide safe access to places used by operating, inspection, maintenance and servicing personnel.

…

1.2    OBJECTIVE

The objective of this Standard is to provide technical specifications and criteria for fixed platforms, walkways, guardrails, stairways, ladders and permanently configured (but movable) platforms that are used in the workplace, to reduce the risks to the safety of users.

(Emphasis added.)

Publication of the media release

54    Hi-Rise also relies on the terms of the media issued by Standards Australia on 16 December 2013, which relevantly said:

AUSTRALIAN STANDARD: FIXED PLATFORMS, WALKWAYS, STAIRWAYS AND LADDERS - DESIGN, CONSTRUCTION AND INSTALLATION

Standards Australia has released a new version of AS 1657 - 2013 Fixed platforms, walkways, stairways and ladders — design, construction and installation

“The publication of this new edition is a result of working with all stakeholders including government and industry,” said Dr Bronwyn Evans, Chief Executive Officer, Standards Australia.

“Input from the construction sector and work health and safety experts has produced this excellent outcome,” Dr Evans added.

The new standard will serve to reduce ambiguity and give guidelines for manufacturers, and provide greater safety of the users involved in accessing of fixed ladders, platforms and walkways.

Dr Evans said certifiers will have an up-to-date set of requirements which consistently addresses the current accepted industry practices and will make it much easier to monitor and increase industry conformance.

“This standard is all about ensuring that building sites provide the optimal level of safety,” said Dr Evans.

The standard was prepared by the Standards Australia Committee SF-013, Platforms, walkways, stairways and ladders. The following organisations are represented on the committee:

• Australian Aluminium Council

• Australian Building Codes Board

• Australian Industry Group

• Australian Rope Access Association

• CSIRO

• Department of Justice (Tasmania)

• Energy Networks Association

• Engineers Australia

• Ladder Manufacturers Association of Australia

• Master Builders Australia

• Property Council of Australia

• WorkCover New South Wales

• WorkSafe Victoria

Dr Evans said the standard continues to provide guidance and requirements from the design stage through to installation for platforms, walkways, stairs and ladders.

…

Australian Standards are available through SAI Global www.saiglobal.com/shop

(Emphasis added.)

55    The evidence shows that employees of Standards Australia discussed, amongst themselves, the messages that should be included in the media release and the proposed methods of publication. For example, on 16 December 2013, Mr Nicholas Davy, Standards Australia’s Head of Public Affairs, sent an email to Mr Stingemore asking him whether he was content with the proposed media release. Mr Stingemore said in reply:

There is a lot of history and politics, believe it or not, around this standard - not sure if the quote “When it comes to stairs, ladders, walkways or platforms, workplace safety has to be the top priority” is on message. There are a number of stakeholders who could see this as a red rag including [name redacted] who would most probably disagree with the statement. He was on the committee until removed by his [nominated organisation].

Some other suggested quotes “Working with all stakeholders including government and industry from the construction and work health and safety sectors has led us to this excellent outcome.”

“The publication of this new edition brings to a close an important step forward in relation to the construction and use of platforms and ladders in Australia.”

Alison might have some other perspectives.

56    The evidence also shows that Standards Australia provided SAI with some limited input on SAI’s promotion of Standards, doing so at SAI’s request. For example, on 11 December 2013 Ms Olympia Erskine, SAI’s Marketing Coordinator, sent several emails to Mr Rupasinghe, Project Manager at Standards Australia, enquiring as to the target audience for the Standard and seeking his advice on the appropriate image to use in marketing the Standard. Mr Rupasinghe responded by advising that the target audience for that Standard would be manufacturers, installers and certifiers of equipment for safe working at height because the Standard concerned the design, construction and installation of fixed ladders, platforms and walkways.

Sales of Standards

57    Only SAI sells Standards, doing so either on a stand-alone basis or through a subscription service. In addition, some Standards are made available to the public online at no charge (where the relevant fee is met by the Commonwealth), some Standards are made available to the public online at no charge through SAI, and some Standards are available (for viewing only) at some local, State and TAFE libraries.

58    Standards Australia does not sell Standards. Its website does, though, provide a link to the section of the SAI website where Standards can be purchased. At the time Standards Australia’s website said:

Search and Buy a Standard

Standards Australia maintains some 6,873 Australian Standards and associated publications, all available in a variety of formats from the traditional printed book, through to advanced online subscription services.

Search or Buy Australian Standards and other Standards Australia documents

…

Australian Standards are sold and distributed worldwide by SAI Global Limited.

To buy an Australian Standard please click on the link below:

[A link to the SAI Global InfoStore appears here, followed by the telephone, fax and email contact details of SAI Global.]

The impugned publications

59    Hi-Rise relies on various parts of Standards Australia’s website and I set out only the relevant parts.

60    At the time the website section headed “What is a Standard?” relevantly said:

Standards are published documents setting out specifications and procedures designed to ensure products, services and systems are safe, reliable and consistently perform the way they were intended to. They establish a common language which defines quality and safety criteria.

Standards can be:

    International standards

Developed by ISO and IEC (and others) and are used directly or adopted by other standardising bodies.

    Regional standards

...

    National standards

Prepared, adopted or approved by a national standards body or other body accredited to produce national standards.

For example, Australian Standard brand Standards are either developed in Australia or are adoptions of international standards

Australian and joint Australian/New Zealand standards are practical and don’t set impossible goals. They are based on sound industrial, scientific and consumer experience and are regularly reviewed to ensure they keep pace with new technologies.

They cover everything from consumer products and services, construction, engineering, business, information technology, human services to energy and water utilities, the environment and much more.

…

(Emphasis added.)

61    The page provided a link to “Standardisation Guide 003: Standards and other Publications” (Standardisation Guide 003).

62    At the time the website section headed “The 7 Benefits of Standards” relevantly stated:

Standards matter. They matter in Darwin as a mother buckles her child into a baby capsule, in Albury as a young couple discusses the designs for their new home, in Melbourne as a managing director decides on his new risk management strategy, in Adelaide as an engineer inspects structural design plans for a new development.

All these people have one thing in common - they are relying on an objective, rigorous set of Standards to ensure these products and systems are safe and reliable.

Thanks to Standards Australia and the thousands of experts that contribute to the development of Australian Standards, Australian consumers can have that assurance.

Australian Standards set out the specifications and design procedures to ensure goods and services consistently perform in the way they are intended. They make a sustained contribution to generating national wealth, improving our quality of life, increasing employment, improving safety and health and using our national resources more efficiently.

…

1.    Standards protect Australians

Australians at home, at play and at work are made safer by Standards. Traffic lights, footpaths, power points, seatbelts and child restraints, air quality, smoke and fire alarms are all underpinned by Australian Standards. Standards give businesses and consumers confidence that the goods and services they are developing or using are safe, reliable and will do the job they were intended for.

(Emphasis added.)

63    The passage went on to assert six further benefits of Standards, being that Standards support Australian innovation, boost Australian production and productivity, make Australian businesses more competitive, link Australia to the world, complement Australian regulation and make markets work better and reward participants.

64    Standardisation Guide 003 relevantly said:

(a)    In the “Introduction”:

An AS or AS/NZS Standard is recognised by industry and users as being an authoritative document. It can potentially be relied upon to protect human health and safety, as an element in contracts, as a point of reference under statute law, as a benchmark of currently acceptable practice and for a range of other applications with similarly significant ramifications. Standards have wide legislative acceptance in the States, Territories and Commonwealth.

(b)    Under the heading “What is a Standard?”:

Standards are published documents setting out specifications and procedures designed to ensure that products, services and systems are safe, reliable and consistently perform the way they were intended to. They establish a common language that defines quality and safety criteria. Standards are practical and set achievable goals. They are based on sound industrial, scientific and consumer experience and are regularly reviewed to ensure that they keep pace with advances in technology.

(c)    Under the heading “Purpose of Standards”:

Standards are developed for a number of purposes, including:

1. Voluntary or mandatory applications - Standards that specify requirements to achieve at least the minimum objectives of safety, quality or performance of a product or service.

2.    Regulatory compliance - Standards that are used to specify minimum least-cost solutions to technical requirements expressing characteristics, performance and design criteria compatible with the function of legislation.

3.    Contractual purpose - Standards that serve as purchasing specifications or technical conditions of contract between two parties.

4.    Guidance - Standards that may be intended for educational purposes and which include recommendations, or administrative or project management procedures.

(d)    Under the heading “Functions of Standards”:

Standards may fulfil many functions including:

…

Design Standards - Design Standards are a basic element of nearly all engineering and building projects. They are a means by which the essence of long experience and research in design is expressed in a concise and readily available form. Design Standards are largely concerned with safety and are normally written in mandatory language, making them suitable for adoption by reference in regulations.

…

Safety Standards - provide guidance on safety in health, life and property matters…

…

(e)    Under the heading “Drafting of Standards”:

The responsibility for the technical content of a Standard resides with the Technical Committee (TC). It is the final version of the Standard that is voted upon by the TC.

…

When drafting Standards, committee members are careful to ensure that the content is up-to-date, relevant and reflects community expectations. For example, if there are several acceptable technical solutions and one of those solutions is not catered for in the Standard, it could have significant legal and financial implications for those using that solution. Alternatively, if the trade-off between factors such as cost and safety is biased one way or the other, the community will be placing its faith in something that either offers inadequate safety or is overpriced and economically inefficient.

Transparency and consensus building associated with national standardisation helps avoid such problems. The requirement to show a Net Benefit when first proposing the development of a new Standard (or revision of an existing Standard) also assists in ensuring community expectations are met.

(Emphasis added.)

65    The meaning of the expression “Net Benefit” in Standardisation Guide 003 is defined in another (linked) section of the website, which relevantly said:

Net Benefit

What is Net Benefit?

Every Australian Standard, regardless of who develops it, must demonstrate positive Net Benefit to the community as a whole. All Australian Standards must provide a value or benefit that exceeds the costs likely to be imposed on suppliers, users and other parties in the community as a result of its development or adoption and implementation.

Net Benefit is a core component of how Standards Australia operates.

For simplicity and to align the Productivity Commission’s recommendations with ABSDO’s requirements, Standards Australia has defined Net Benefit to mean “having an overall positive impact on relevant communities.”

Net Benefit takes into account the costs and benefits related to the following criteria:

(a)    Public health and safety;

(b)    Social and community impact;

(c)    Environmental impact;

(d)    Competition; and

(e)    Economic impact.

…

Standards must deliver Net Benefit

The Accreditation Board for Standards Development Organisations (ABSDO), which oversees all Standards Development Organisations (SDOs) has incorporated the demonstration of Net Benefit into the requirements for developing an Australian Standard.

…

This requirement aligns to the recommendation arising from the Productivity Commission report into standards in 2006, and also reflects the Memorandum of Understanding between Standards Australia and the Commonwealth Government.

(Emphasis added.)

66    The requirement that a Net Benefit be established as a “core component” of each Standard is picked up in the MoU. Clause 6.3.2 of the MoU provides that “for all standards development projects, whether they be resourced by Standards Australia, externally-funded or committee driven, the primary decision criterion is a net benefit to the Australian community as a whole.” (Emphasis in italics added). As I will explain, in my view the requirement that each Standard must show a Net Benefit operates to qualify the alleged representations.

67    The FAQ section of the website relevantly said:

Who is Standards Australia?

Standards Australia is Australia’s peak non-government Standards body, recognised through a Memorandum of Understanding (MoU) with the Commonwealth Government.

We are an independent, non-government, not-for-profit organisation responsible for bringing together industry, government and consumer groups to develop Australian Standard brand standards.

Standards Australia is not a regulator and is not responsible for enforcing compliance with any Australian Standards.

What does Standards Australia do?

In consultation with government, business, industry, community, academia and consumers, Standards Australia develops internationally aligned Australian standards and related publications to help ensure the safety, reliability and performance of a range of products, services and systems.

What is a Standard?

Standards are published documents that set out specifications and procedures designed to ensure products, services and systems are safe, reliable and consistently perform the way they are intended to. They establish a common language that defines quality and safety criteria.

…

What is the purpose of a Standard?

[The section then lists the purposes for which Standards are developed, doing so in essentially the same terms as in Standardisation Guide 003]

…

How do I obtain a Standard and how much do they cost?

Australian Standards are distributed by SAI Global under licence from Standards Australia. Sales and pricing information is available from SAI Global.

[A link to the SAI website is here provided, together with telephone contact details.]

…

Can I view a Standard without purchasing it?

Australian Standards are available for viewing in some local, State and TAFE libraries.

You will need to contact these institutions directly to find out if the Australian Standard you wish to view is available.

You can view the scope and contents of an Australian Standard through the SAI Global InfoStore.

…

Development

How are Australian Standards developed?

Australian Standards are developed by Committees of technical experts that have a balanced representation of interest groups such as suppliers, regulatory authorities and consumers.

Committee members do not represent their employers. They are appointed as representatives of Standards Australia's Nominating Organisations, such as associations, government departments, and academia. Australian Standards are developed by committees through the use of a consensus model.

Decisions made by Committees in the development of Australian Standards are made on a consensus basis.

For a full description of the consensus approach, see the Standardisation Guides available on our website.

…

(Emphasis added.)

68    At the time, Standards Australia published a brochure titled “Developing Australian Standards” (the Developing Australian Standards brochure), which relevantly said:

(a)    Under the heading “What is an Australian Standard”:

Australian Standards are published documents setting out specifications and procedures designed to ensure products, services and systems are safe, reliable and consistently perform the way they are intended to. They establish a minimum set of requirements which define quality and safety criteria.

Australian Standards are voluntary documents that are developed by consensus. Many Australian Standards, because of their rigour, are adopted into legislation to become mandatory or referenced in contracts.

(b)    Under the heading “About Standards Australia”:

Standards Australia develops internationally aligned Australian Standards in the national interest.

As Australia’s peak standards body, we facilitate and manage the development and maintenance of Australian Standards…

We do this by providing a neutral meeting ground and rigorous framework in which government, industry, consumer, academic, professional, community and employee bodies can discuss and debate issues with the aim of developing standards which meet the needs of the Australian community. Our processes are based on balance of interests, transparency, openness and consensus.

…

(c)    Under the heading “How are Australian Standards developed?”:

Our standards development process is based on the key principles of transparency, consensus and balanced expert committee representation. This process is regarded as one of the most rigorous in the world.

Before a project to develop a new Australian Standard or revise an existing Australian Standard commences, there needs to be demonstrable evidence that the standard will deliver a net benefit to the Australian community.

…

69    Hi-Rise also relies on statements made by Standards Australia’s Chairman and by its Chief Executive Officer (CEO), in its 2012, 2013 and 2014 Annual Reviews. In the 2012 Annual Review:

(a)    The Chairman, Dr Alan Morrison, said:

My highest priority as Chairman has been to advocate the economic value of Australian Standards to government and corporate decision-makers. On this front and others, Standards Australia has made significant progress towards its strategic imperatives.

Our standards development projects have increasingly been meeting business needs by providing solutions to common problems and establishing new benchmarks. We have seen this across all sectors.

This has been demonstrated by strong interest from standards development proponents through the Project Prioritisation and Selection Process. We have supported merit-based progression of key standards development projects.

We welcome the opportunity to facilitate standards development in support of business objectives. Australian Standards belong in every business development toolkit and are increasingly being used for this purpose.

…

Australian Standards support trade, innovation and economic exchange in ways which are fundamental to the functioning of a modern, globally connected economy.

(b)    The CEO, Mr Colin Blair, said, :

Standards Australia has made significant progress towards implementation of the strategic plan while continuing to excel in standards development and delivery. Our core business function has never been more certain nor as focused.

…

[O]ur standards development activities are strategic and yielding tangible results. This is demonstrated in our continued drive to develop new standards and update existing ones.

…

My vision for the organisation is based on several key principles:

•    Strive for excellence in our core activity – Developing internationally-aligned Australian Standards in the national interest

•    Enhance awareness of Australian Standards - Ensure Standards Australia is adapting to change, linked to research, and engaged across industry sectors

•    Maintain our peak status as the national standards body - Our responsibility is to deliver Australian Standards of benefit to the community

…

•    Sound operational platform - To ensure peaks status requires sound finance, resources and processes, engagement with stakeholders, and international engagement

…

It has been our objective to ensure that Australian Standards are placed at the core of business decision-making. In this arena we have made significant advancements.

(Emphasis in original.)

70    In the 2013 Annual Review:

(a)    The Chairman said:

Australian Standards are playing a fundamental role in the national economic story. Our standards underpin our largest export sector, mineral resources, ensuring they are readily accepted in export markets and are delivered to a standard which is internationally recognised.

…

Firms which adopt Australian Standards are better equipped to withstand market pressures…than those which do not. They are better equipped to find ready buyers for their products and services, domestically or internationally, and they are also more prepared to adapt to changing market preferences.

Standards Australia has made significant progress this year in advancing its core focus: developing internationally-aligned Australian Standards in the national interest. Value added standards are now being more efficiently created and our core collection being updated to increase its value to our industries.

Commercial transactions and international trade could not take place without the support of the nation’s technical infrastructure, which comprises measurement, standards, and conformance.

We often hear about Australia’s need to better build infrastructure, but we don’t hear so often about the need for rigorous technical infrastructure, which is arguably just as important in helping to create our nation’s wealth.

Standards Australia is an essential pillar in the creation of the nation’s technical infrastructure. And it is in this context which Australian Standards become important in terms of public policy. Too often the first answer for a policy problem is government intervention. While this is appropriate at times, voluntary standards can be met with less resistance, complied with greater enthusiasm by our industries which are involved with the creation of standards, thus providing a more effective tool for achieving lasting change.

Australian Standards are an important alternative to regulation and can promote growth, trade and opportunity.

…

In order for the nation to be competitive, resilient, and innovative we will be relying on standards more; not less. The demand for national and international standardisation is constantly increasing to facilitate our trade, industry and commerce.

…

(b)    The CEO said:

As the nation’s peak standards body, Standards Australia is charged with a major responsibility. We must ensure our standards are contemporary, technically up-to-date, and internationally-aligned where possible. It means we have to be efficient in our delivery; effective in our engagement; international in our outlook; and excellent at what we do.

By focusing on our core activities, Standards Australia is on stronger footing. Our financial basis is sound, our standards development processes are effective, and our human capital is strong.

….

Standards Australia has made significant progress over the previous year, including the signing of a new Memorandum of Understanding (MoU) with the Commonwealth Government following a five year review of the existing MoU. This agreement is fundamental to our peak status.

…

As part of our commitment to maintain a contemporary suite of standards, this year we have undertaken a review of standards greater than 10 years old to determine their ongoing relevance or otherwise; ensuring their revision, reconfirmation or withdrawal. The role of technical committees is fundamental in this process.

Standards Australia has sought to increase the quality and level of engagement with industry and government leaders. Whether it is through technical committees, sector management, or the Industry Leaders Forum, we have worked to increase the understanding of Australian Standards and their role in supporting our economy. This task is ongoing.

Meanwhile, social media is changing human interaction on a massive scale. This year we have also stepped up our presence and I am pleased to report social media is now fully embedded as part of our communication strategy. Standards Australia has a growing presence on key platforms such as LinkedIn, Facebook and Twitter.

71    Standards Australia’s Chairman and its new CEO made some similar statements in the 2014 Annual Review.

SAI’s publications

72    It is uncontentious that SAI is a large multi-national company with operations extending well beyond the Licensing Agreement with Standards Australia. In the 2013 financial year it had sales revenue of approximately $478.60 million.

73    SAI’s business of selling Standards and related products falls within its Information Services Division, which also covers an unrelated business titled “Property”. In the 2013 financial year SAI’s combined income from these two businesses totalled approximately $214.704 million. Its profit before interest, tax and significant charges totalled approximately $45.479 million, which was an increase from the previous year.

74    SAI’s 2013 Annual Report SAI said that:

The Standards and Technical Information business grew its revenue by 1.1%. Although activity improved slightly over the course of the second half, the benign year-on-year growth reflects a continued softness in demand which, together with a reduced flow of new standards, saw sales of standards decline. However, subscriptions continued to grow. EBITDA was slightly firmer, up 4.9%.

The business over the last 2-3 years has seen a significant and favourable change in revenue mix. Sales of individual standards have declined but have been offset by strong growth in subscription revenue that now represents 65-70% of revenue. This has made the business less vulnerable to the standards release cycle. The impact of this change in mix was evident particularly in the second half of FY13.

Driving subscription growth and continuing to build towards value added content services and workflow solutions is expected to see the stronger second half trends continue into FY14.

Overall, the division achieved revenue and EBITDA growth of 6.7% and 10% respectively.

75    It also said that:

A key contributor to the revenue and profitability of [the Standards and Technical Information] business is the Publishing Licence Agreement (PLA) with Standards Australia. Under the PLA Standards Australia has granted to SAI a worldwide licence to publish, distribute and sell Australian Standards. The agreement commenced in December 2003 and has five and a half years remaining of the original fifteen year term. The Agreement envisages that prior to December 2018 SAI Global and Standards Australia will negotiate the commercial terms for a further five year period from December 2018 to December 2023.

(Emphasis added.)

76    SAI’s 2014 Annual Report said that in the 2014 financial year its sales revenue was approximately $527.749 million, and revenue from the two sections of the Information Services Division totalled $244.179 million. Revenue from Standards and Technical information grew by 9.6% which the 2014 Annual Report said was:

…primarily due to the continued focus on selling subscription services versus sales of single standards. This is reflected in the increase in annuity revenue which now represents 73% of revenue. Focus on subscription services also reduces the impact to the business of the decline in sale of individual standards. This decline follows the trend of the overall standard sector of which a reduced output of new and revised standards a contributing factor.

4.    WHETHER Standards Australia MADE THE ALLEGED REPRESENTATIONS

Relevant legal principles

77    Section 18(1) of the ACL provides:

Misleading or deceptive conduct

A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

78    The Court must determine two primary issues:

(a)    whether the pleaded representations were conveyed by the relevant conduct in trade or commerce; and

(b)    if yes, whether the representations were misleading or deceptive or were likely to mislead or deceive, which is a question of fact. This is not, however, a question for the present hearing.

79    There is no real contest between the parties as to the principles to be applied and the parties’ differences boil down to the application of the principles to the facts.

80    Because the impugned statements were published to the public at large rather than to specific individuals the Court must assess what representations were conveyed by reference to the class or classes of persons to whom the conduct was directed. The following principles are worth restating.

(a)    Section 18 of the ACL is concerned with the effect or likely effect of “conduct” upon the minds of the person or persons in relation to whom the question of whether the “conduct” is likely to be misleading or deceptive falls to be tested. The test is objective. “Conduct” can, of course, include a statement: Australian Competition and Consumer Commission v Dukemaster [2009] ATPR 42-290; [2009] FCA 682 at [10] (Gordon J).

(b)    It is necessary to identify the relevant section or sections of the public at which the impugned statements were directed: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; [1982] HCA 44 at 199 (Puxu) (Gibbs CJ); Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at 319 [25] (French CJ) (Backoffice Investments).

(c)    Consideration must be given to who comes within that target audience. Statements published to the public at large will include a broad range of people including the astute and the gullible, the intelligent and the not so intelligent, the well-educated and the poorly educated: Puxu at 199.

(d)    It is necessary to enquire by reference to a hypothetical ordinary or reasonable member of the target audience what representation will have been conveyed to that hypothetical person by the impugned statements and whether that hypothetical person is likely to be misled or deceived, excluding reactions that are extreme or fanciful: Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 at [105] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

(e)    The impugned statements must be considered as a whole and in the context of all the surrounding circumstances. It would be wrong to select some words only and ignore others: Puxu at 199; Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73; [2014] FCA 634 (Coles) at [41] (Allsop CJ).

(f)    The question as to whether a representation is conveyed may involve consideration of the knowledge properly to be attributed to the members of the target audience: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 at [53] (French CJ, Crennan, Bell and Keane JJ).

(g)    The question of whether representations are misleading or deceptive must be tested against each meaning which is reasonably available to the hypothetical ordinary member of the target audience: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; [1992] FCA 962 at 50 (Hill J); Coles at [46]-[47]. The Court must determine which meanings are reasonably available.

The target audience

81    In submissions Hi-Rise narrowed the target audience of the alleged representations to installers, certifiers, engineers and designers of equipment and systems for working at height such as fixed platforms, walkways, stairways and ladders. It accepted that the impugned statements were not directed at the public at large, or at people who merely used fixed platforms, walkways, stairways and ladders.

The knowledge to be imputed to the target audience

82    Hi-Rise submits, and I accept, that such an audience embodies a wide cross-section of people with varying degrees of education, intelligence and commercial and business acumen, but it otherwise gave little attention to the knowledge to be imputed to the ordinary or reasonable member of the target audience. It is necessary to keep in mind that the alleged representations were not made to the public at large, but instead to installers, certifiers, engineers and designers of equipment and systems for working at height. They are likely to have a reasonably high level of knowledge about the safety risks in their industry, the safety of the available equipment and systems, the level of safety provided through the requirements of the 2013 Standard, and the level of safety provided through the requirements of the 1992 Standard. I consider the hypothetical ordinary or reasonable member of the target audience is likely to know that the 2013 Standard is intended to ensure that goods and services meet a minimum or reasonable standard of safety, and to know that the factors taken into account in developing that Standard extend beyond just safety considerations and include matters of cost and practicality.

The alleged representations

The General Standards Representations

83    In paragraph 19A of the ASOC Hi-Rise alleges that:

At all relevant times since at least 2013, Standards Australia has represented to the public and users of Australian Standards that each Australian Standard:

(a)    ensures goods and services are safe;

(b)    is based on sound industrial, scientific and consumer experience;

(c)    sets out specifications and procedures designed to ensure that products, services and systems are safe; and

(d)    contributes to improved safety and health and makes Australians safer at home, work and at play;

(e)    further or alternatively, in Standard Australia’s opinion:

(i)    ensures goods and services are safe;

(ii)    is based on sound industrial, scientific and consumer experience;

(iii)    sets out specifications and procedures designed to ensure that products, services and systems were safe;

(iv)    contributes to improved safety and health and makes Australians safer at home, work and at play,

and that this opinion can be relied upon, is based on reasonable grounds, does not require qualification and is the result of the exercise of reasonable care.

(the General Standards Representations).

84    Hi-Rise alleges that the General Standards Representations were conveyed in written statements in:

(a)    general information on the Standards Australia website in the sections titled “What is a Standard?” and “Benefits of Standards”;

(b)    the Developing Australian Standards brochure; and

(c)    the 2013 Annual Review of Standards Australia.

85    Standards Australia admits that it made the General Standards Representations alleged in paragraphs 19A(a)-(d) of the ASOC, and admits they are representations of fact rather than opinion. It denies that it made the representations of opinion alleged in paragraph 19A(e).

86    Standards Australia’s admission that it made representations of fact in this regard is appropriate because:

(a)    it made statements on its website that:

(i)    Standards are “designed to ensure products, systems and services are safe, reliable and consistently perform the way they were intended to”;

(ii)    Standards “are based on sound industrial, scientific and consumer experience and are regularly reviewed to ensure they keep pace with new technologies”;

(iii)    “Standards set out the specifications and design procedures to ensure goods and services consistently perform in the way they are intended”;

(iv)    “Australians at home, at play and at work are made safer by Standards”; and

(v)    Standards “make a sustained contribution to…improving safety and health”.

(b)    the Developing Australian Standards brochure said that Standards are:

…designed to ensure products, services and systems are safe, reliable and consistently perform the way they are intended to.

(c)    the 2013 Annual Review said that:

Australian Standards ensure goods and services are safe, reliable and will do the job they are intended for.

87    Having regard to Standards Australia’s admission that it made these representations of fact, Hi-Rise submitted that the alternative construction that the conduct constitutes representations of opinion remained open, but it did not press the allegation. I proceed on that basis.

88    Standards Australia submits, however, that the representations as to the safety provided through Standards are qualified because Standards are developed by reference to numerous criteria including cost and practicality, such that Standards do not ensure safety (in the sense of make it certain) but refer to an accepted minimum or reasonable standard of safety.

89    To an extent, Hi-Rise relies only on those parts of Standards Australia’s publications which support its argument and it attempts to disregard other parts which do not assist its case. However, particularly as the passages on which Hi-Rise relies are no more prominent than qualifying passages in other parts of the publications, there is no reason to think that the ordinary or reasonable member of the target audience would have read only the impugned passages and not the others. The representations conveyed must be determined by considering the impugned statements in the context and circumstances overall: Puxu at 199; Coles at [41].

90    I approach the questions before the Court on the basis that the ordinary or reasonable member of the target audience will have read all relevant parts of the impugned publications (being Standards Australia’s website, the Developing Australian Standards brochure, the 2013 Annual Review and the 2013 Standard). Considered overall these publications show that safety is not the sole criterion underpinning the development of Standards, and indicate that the level of safety provided through the requirements of a Standard is a minimum or reasonable level.

91    The qualifications found in the relevant publications include:

(a)    the website section headed “What is a Standard?” said that “Australian and joint Australian/New Zealand Standards are practical and don’t set impossible goals”;

(b)    the Developing Australian Standards brochure said that “Australian Standards are published documents setting out specifications and procedures designed to ensure products, services and systems are safe, reliable and consistently perform the way they are intended to. They establish a minimum set of requirements which define quality and safety criteria”;

(c)    Standardisation Guide 003 said that:

(i)    “Design Standards are largely concerned with safety” (emphasis added);

(ii)    there may be a “trade-off between factors such as cost and safety”; and

(iii)    every Standard must show a “Net Benefit”;

(d)    the website section headed “Net Benefit” said that every Standard must demonstrate a positive Net Benefit to the community as a whole, being a value or benefit that exceeds the costs likely to be imposed on suppliers, users and other parties by implementation of the Standard. Other than safety, it referred to relevant considerations such as competition, economic impact, environmental impact and social and community impact.

92    Having regard to the knowledge I impute to the ordinary or reasonable member of the target audience (see [82] above), together with these passages in the impugned publications, it is likely that the ordinary reader would reasonably understand the representations as referring to a minimum or reasonable standard of safety. In my view the ordinary reader is unlikely to understand the representations to mean that Standards “ensure” (in the sense of make certain) that goods and services are completely safe and have no risks.

The 2013 Standard Representations

93    In paragraph 20 of the ASOC Hi-Rise alleges that:

From around mid-December 2013… Standards Australia has represented to service providers and users of fixed platforms, walkways, stairways and ladders that:

(a)    the requirements in the 2013 Standard:

(i)    make it more safe and less risky to users than complying with the requirements under the 1992 Standard;

(ii)    provide greater safety to users;

(iii)    ensure building sites provide the optimal level of safety to users; and

(iv)    are primarily intended to provide safe access, and to reduce the risks to the safety of users;

(b)    further or alternatively, the requirements in the 2013 Standard make it as least as safe to users as the requirements under the 1992 Standard;

(c)    further or alternatively, in Standards Australia’s opinion, the requirements in the 2013 Standard:

(i)    make it more safe and less risky, or alternatively at least as safe, to the users than complying with the requirements under the 1992 Standard;

(ii)    provide greater safety to the users involved in accessing of fixed ladders, platforms and walkways;

(v)    ensure building sites provide the optimal level of safety to users; and

(vi)    are primarily intended to provide safe access, and to reduce the risks to the safety of users; [misnumbering in original]

(d)    the opinions in paragraph 20(c) were safe to be relied upon, were based on reasonable grounds, did not require qualification and were the result of the exercise of reasonable care.

(the 2013 Standard Representations.)

94    Hi-Rise alleges that the 2013 Standard Representations were conveyed by statements in the 2013 Standard itself under the headings “Scope” and “Objective” (set out at [53] above) and statements in the media release (set out at [54] above). It also alleges that the representations in paragraph 20(b) are to be implied from:

(a)    the General Standards Representations;

(b)    the fact that the 1992 Standard was revised over a long period of time;

(c)    the fact that the terms of reference of the Technical Committee described its task as being to standardise safety requirements for the design, construction and installation of fixed platforms, walkways, stairways and ladders to ensure safety to users; and

(d)    the fact that Australian Standards represent benchmarks in quality and safety and are expected to ensure goods and services are safe.

95    Hi-Rise submits that Standards Australia made unequivocal, unambiguous and unqualified representations of fact in relation to the safety of users through the requirements of the 2013 Standard. In the alternative (and in relation to the representations of opinion in paragraph 20(c)) Hi-Rise alleges that they were representations of opinion which carried implied representations that the opinions were based on reasonable grounds, were the product of due care and skill and were safe to be relied on.

96    I now deal with each of the alleged 2013 Standard Representations.

The alleged representations of fact

The More Safe and Less Risky Representations

97    Hi-Rise alleges that Standards Australia represented that the requirements in the 2013 Standard:

(a)    make it more safe and less risky to users than complying with the requirements under the 1992 Standard and provide greater safety to users - paragraphs 20(a)(i) and (ii) of the ASOC; and

(b)    alternatively “make it as least as safe to users as the requirements under the 1992 Standard” - paragraph 20(b);

(the More Safe and Less Risky Representations).

98    The alleged representations are based on statements in the media release and the 2013 Standard, and the representation alleged in paragraph 20(b) is also to be implied from the matters set out at [94] above.

99    Under the heading “Scope” the 2013 Standard states that its requirements “are intended to provide safe access to places used by operating, inspection, maintenance and servicing personnel.” Under the heading “Objective” it states that its objective is “to reduce the risks to the safety of users”.

100    The media release relevantly said that:

(a)    Standards Australia has released a new version of the Standard;

(b)    “input from the construction sector and work health and safety experts has produced this excellent outcome”;

(c)    the new Standard will “provide greater safety of the users involved in accessing of fixed ladders, platforms and walkways”;

(d)    the new Standard “will make it much easier to monitor and increase industry conformance”; and

(e)    the new Standard “is all about ensuring that building sites provide the optimal level of safety”.

101    It is common ground that the ordinary or reasonable member of the target audience would understand the statements as to “greater safety” as representing that the 2013 Standard provides greater safety for users than the 1992 Standard.

102    I do not accept Hi-Rise’s contention that the More Safe and Less Risky Representations are unqualified. As I said (at [92] above) it is likely that the ordinary or reasonable reader would have understood the representations to refer to a minimum or reasonable standard of safety, and that Standards take into account considerations beyond just safety. However, in relation to these representations, this makes little difference to the meaning conveyed.

Whether the More Safe and Less Risky Representations are representations of fact or opinion

103    Standards Australia admits that the More Safe and Less Risky Representations are representations of opinion, but it denies that they are representations of fact.

104    It argues that the requirements of the 1992 and the 2013 Standards set standards such that compliant platforms, walkways, stairways and ladders can properly be called “safe” and it accepts that a representation to that effect would be a representation of fact. It submits, however, that a comparison of the relative safety of the requirements under the 1992 and 2013 Standards would be understood by the ordinary or reasonable member of the target audience as a representation of opinion.

105    In Backoffice Investments at [32]-[33] French CJ described a statement of opinion as a statement of “judgment or belief of something as probable, though not certain or established” and said that as a matter of logic there may be some category overlap between opinions and statements of fact. In Madden v Seafolly [2014] FCAFC 30 at [90] the Full Court (per Rares and Robertson JJ) said that, generally, an opinion “is an expression of a point of view based on an identified matter or state of affairs.”

106    In Middleton v Aon Risk Services Australia Ltd [2008] WASCA 239 (Middleton) at [22]–[23] McLure JA explained:

Whether or not a statement is one of fact or opinion depends upon all the relevant circumstances known to the representee, including the form in which the statement is made and the personal knowledge or likely personal knowledge of the person making the statement. The subject matter of the statement may also be relevant but is not necessarily determinative. Further, a person may make a statement of fact about what he or she merely believes as opinion. For example, a statement as to the value of property or the nature of its tenure may be in such form and made in such circumstances as to be a statement of fact not opinion: Spencer Bower, Turner and Handley, Actionable Misrepresentation 4th ed [31], [32] and the authorities there cited.

Thus, an unqualified assertion by a person who has, or is reasonably expected to have, personal knowledge of a matter may be a statement of fact not opinion. So too, a statement as to the content or general effect of a document, including a legal document, has been held to be a representation of fact: Spencer Bower, Turner and Handley at [43], [44] and the authorities there cited.

(Emphasis added.)

107    Also in Middleton, Buss JA said at [80]:

The form of a statement does not determine whether it is of fact or opinion. Rather, what is important is the sense in which the statement is reasonably understood. For example, a statement which appears to assert facts without qualification may nevertheless be merely of opinion if made in circumstances in which the recipient must be taken to know that the maker of the statement has inadequate knowledge or information in relation to the facts apparently asserted. Where, however, the facts are not known equally to both parties, a statement by the party with the better knowledge, which is in form an opinion, may convey a representation that the party making the statement has reasonable grounds for the opinion. See Smith v Land and House Property Corporation (1884) 28 Ch D 7, 15 (Bowen LJ). Thus, whether a statement is or conveys a representation of fact or opinion depends upon all of the relevant circumstances, including the facts known to the recipient or representee, the form and subject matter of the statement, and the actual and likely personal knowledge of the maker of the statement or representor.

(Emphasis added.)

108    I consider the better view is that the impugned statements conveyed a representation of fact to the target audience.

109    First, I say this because on the ordinary meaning of the words used, the statements were assertions of fact rather than statements of opinion.

110    Second, the ordinary or reasonable member of the target audience would know that Standards Australia has a high level of knowledge and expertise in relation to Standards, and the 2013 Standard in particular. He or she would also understand from the media release that the 2013 Standard was developed with input from a number of well-qualified and credible workplace safety regulators, trade and industry associations, and the CSIRO. He or she is likely to have understood Standards Australia to be representing that it had personal knowledge in relation to the impugned statements and that it made the statements on the basis that their truth was known to it.

111    Third, the representation as to “greater safety” in the media release was made:

(a)    alongside other claims in that release that the 2013 Standard:

(i)    was an “excellent outcome”;

(ii)    was “all about ensuring that building sites provide the optimal level of safety”; and

(iii)    “will make it much easier to monitor and increase industry conformance.”

(b)    in the context that:

(i)    the 2013 Standard expressly states that its objective is to provide technical specifications and criteria to reduce the risk to the safety of users; and

(ii)    Standards Australia represented that, in general, Standards ensure goods and services are safe, are based on sound industrial, scientific and consumer experience, set out specifications and procedures designed to ensure that products, services and systems are safe, and contribute to improved safety and health and make Australians safer at home, work and at play.

112    I consider it was reasonably available for the ordinary member of the target audience to understand the impugned statements as conveying the More Safe and Less Risky Representations as representations of fact (albeit qualified as I have said).

The Optimal Safety Representation

113    In paragraph 20(a)(iii) of the ASOC Hi-Rise alleges that Standards Australia represented that the requirements in the 2013 Standard “ensure building sites provide the optimal level of safety to users” (the Optimal Safety Representation).

114    Hi-Rise relies on both the media release and statements in the 2013 Standard in this regard. The media release expressly said that the 2013 Standard “is all about ensuring that building sites provide the optimal level of safety”, and referred to an “excellent outcome” in regard to the Standard and to the greater safety it provides to users. The 2013 Standard does not refer to optimal safety and it says only that it is intended to provide greater safety for users.

Whether the Optimal Safety Representation is a representation of fact or opinion

115    Hi-Rise submits that the impugned statements conveyed a representation of fact, being that the 2013 Standard ensures building sites provide the optimal level of safety. I do not agree.

116    First, I say this because the media release said that the 2013 Standard “is all about ensuring that building sites provide the optimal level of safety.” (Emphasis added.) On their ordinary meaning the emphasised words concern the purpose or intent of the 2013 Standard and do not convey that the Standard “ensured” the optimal level of safety.

117    Second, the ordinary or reasonable member of the target audience would have understood from the 2013 Standard itself that the representation concerned the purpose of the Standard rather than its outcome. The Standard states that it “is intended to provide safe access” and that its objective is to “reduce the risks to the safety of users.” (Emphasis added).

118    Third, the ordinary or reasonable member of the target audience would understand that the optimal level of safety on building sites is an inherently uncertain matter which necessarily involves different and unknown considerations, depending on the building site. He or she will also know that a building site may be unsafe even when Standards-compliant systems or equipment are used.

119    Having regard to this, the ordinary or reasonable reader is likely to understand the impugned statement as representing that Standards Australia intended the 2013 Standard to provide an optimal level of safety (as a representation of fact), not that the Standard ensured an optimal level of safety as a matter of fact.

What was conveyed by the words “optimal level of safety”

120    Hi-Rise contends that the ordinary or reasonable reader is likely to understand the phrase “optimal level of safety” as “the highest degree of safety that could be achieved, recognising that no activity involving people working at height can be perfectly safe or present absolutely zero risk”. I do not accept this.

121    The ordinary or reasonable member of the target audience would understand that Standards are required to show a Net Benefit, and take into account considerations beyond just safety such as cost and practicality. He or she is likely to understand the impugned statement as referring to a minimum or reasonable standard of safety and would not have understood the phrase “optimal level of safety” as a reference to the highest degree of safety that could be achieved.

The Intention to Reduce Safety Risks Representation

122    In paragraph 20(a)(iv) of the ASOC Hi-Rise alleges that Standards Australia’s conduct conveyed the representation that the requirements in the 2013 Standard are “primarily intended to provide safe access, and to reduce the risks to the safety of users” (the Intention to Reduce Safety Risks Representation).

123    It is clear that the media release and the 2013 Standard represented that the 2013 Standard is intended to reduce safety risks. I consider the representation is one of fact because, amongst other things:

(a)    having regard to the knowledge and expertise of Standards Australia, and the fact that the Standard was developed following input from well-qualified and credible workplace safety regulators, trade and industry associations and the CSIRO, the ordinary or reasonable member of the target audience is likely to understand Standards Australia to be representing that it had personal knowledge in relation to the impugned statement and that it made the statement on the basis that their truth was known to it;

(b)    the media release said that the 2013 Standard is “all about ensuring that building sites provide the optimal level of safety” to users, that it provides greater safety for users, and that it is an “excellent outcome” achieved after input from the construction sector and work health and safety experts; and

(c)    the media release was published in the context that:

(i)    the 2013 Standard expressly said that it intended to provide safe access to users and that its objective is to reduce the safety risks of users;

(ii)    Standards Australia represented that, in general, Standards are designed to ensure that products, services and systems are safe; and

(iii)    Standards Australia’s website said that Standards are designed to ensure goods and services are safe, reliable and consistently perform the way they are intended to, to improve safety and health, and to help ensure the safety reliability and performance of goods and services. The Developing Australian Standards brochure makes similar statements.

The alleged representations of opinion

Paragraphs 20(c)(i) and (ii)

124    In paragraph 20(c)(i) and (ii) of the ASOC Hi-Rise alleges, in the alternative, that Standards Australia made representations that in its opinion the requirements in the 2013 Standard:

(a)    make it more safe and less risky, or alternatively at least as safe, for users as the 1992 Standard – para 20(c)(i); and

(b)    provides greater safety for users – para 20(c)(ii).

It alleges that these representations carried implied representations that they were safe to be relied on, were based on reasonable grounds, did not require qualification and were the result of the exercise of reasonable care.

125    Standards Australia admits the allegation in paragraph 20(c)(i) and admits that it represented that there were reasonable grounds for that opinion. There is no real difference between the admitted representation and the representation alleged in paragraph 20(c)(ii) and in my view the admission should be treated as relating to both representations. I consider that such representations made by the peak non-government Standards body in Australia carried implied representations that they were safe to be relied on, were based on reasonable grounds and were a result of the exercise of reasonable care.

126    Accordingly, if I am wrong in my conclusion that the More Safe and Less Risky Representations are representations of fact, I accept that the impugned statements conveyed representations of opinion (qualified as I have said) as well as the implied representations that Hi-Rise alleges.

Paragraph 20(c)(v)

127    In paragraph 20(c)(v) of the ASOC Hi-Rise alleges, in the alternative, that Standards Australia represented that in its opinion the requirements in the 2013 Standard ensure building sites provide the optimal level of safety.

128    If I wrong in my conclusion that the Optimal Safety Representation is a representation of intention (and in that regard a representation of fact), I accept that it was reasonably available for the ordinary reader to understand the impugned statement as a representation that in Standards Australia’s opinion the 2013 Standard provided an optimal level of safety (albeit qualified as I have said).

Paragraph 20(c)(vi)

129    In paragraph 20(c)(vi) of the ASOC Hi-Rise alleges, in the alternative, that Standards Australia represented that in its opinion the requirements in the 2013 Standard are primarily intended to provide safe access, and to reduce the risks to the safety of users.

130    In my view the ordinary or reasonable member of the target audience would understand that Standards Australia knew what it intended to achieve through the publication of the 2013 Standard, and I do not consider the impugned statement would reasonably be understood to convey a representation of opinion.

5.    WHETHER THE REPRESENTATION are “IN TRADE OR COMMERCE”

The relevant legal principles

131    Section 18 of the ACL applies to misleading or deceptive conduct that occurs “in trade or commerce”. Section 2 of the ACL defines “trade or commerce” to mean trade or commerce within Australia or between Australia and places outside Australia. It expressly includes “any business or professional activity (whether or not carried on for profit).”

132    It has been said that words such as “trade” and “commerce” have “about them a chameleon-like hue, readily adapting themselves to their surroundings, different though they may be”: Federal Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355; [1982] HCA 8 at 378-379 per Mason J. It is though well-established that they are terms of common knowledge of the widest import, and they are to be given a broad meaning. The phrase “trade or commerce” is commonly used to denote operations of a commercial character by which a trader provides goods or services to customers for reward, but the meaning is not restricted to arms-length dealings on an open market, and “trading” may include activities which, while being commercial in character, are not within the mainstream of ordinary commercial activities and which do not have a dominant objective of profit-making: Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134; [1978] FCA 107 at 139 [8] per Bowen CJ, and 167 [44] per Deane J.

133    The meaning of “trade” and “trading” has often been considered in the context of whether a corporation is a trading corporation within the meaning of s 51(xx) of the Constitution. In Aboriginal Legal Service of Western Australia (Inc) v Lawrence (No 2) (2008) 37 WAR 450; [2008] WASCA 254 (Aboriginal Legal Service) at 469 [68], Steytler P usefully summarised the principles in that regard (as endorsed by the Full Court in Bankstown Handicapped Children’s Centre Association Inc v Hillman (2010) 182 FCR 483; [2010] FCAFC 11 per Moore, Mansfield and Perram JJ). Relevantly, his Honour said:

…

(3)    In this context, “trading” is not given a narrow construction. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services.

(4)    The making of a profit is not an essential prerequisite to trade, but it is a usual concomitant.

(5)    The ends which a corporation seeks to serve by trading are irrelevant to its description. Consequently, the fact that the trading activities are conducted in the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as “trade”.

(Citations omitted.)

These principles are also apposite to the meaning of “trade or commerce” in the present context.

134    However, the difficulty in the application of s 18 does not stem from the words “trade or commerce” but rather from the requirement that the conduct must be “in trade or commerce”.

135    The Courts have considered the meaning of “in trade or commerce" on many occasions. The leading authority is the High Court decision in Concrete Constructions (N.S.W.) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17 (Concrete Constructions) at 602-604 per Mason CJ, Deane, Dawson and Gaudron JJ. Concrete Constructions concerned the phrase as it was used in s 52 of the Trade Practices Act 1974 (Cth) (TPA) but the limitations which the case sets out are equally applicable to s 18, the successor provision: see Murphy v State of Victoria (2014) 45 VR 119; [2014] VSCA 238 at [77] (Nettle AP, Santamaria and Beach JJA).

136    In Concrete Constructions Mr Nelson sued his employer for damages for personal injury sustained in his employment when he fell to the bottom of an air-conditioning shaft. The accident occurred when he removed a grate in a manner that he had been wrongly informed by a foreman was safe. He brought a misleading or deceptive conduct claim against the employer under the TPA, and was therefore required to establish that the foreman’s misleading statement was conduct “in trade or commerce”.

137    The majority noted that as a matter of language it was open to construe the phrase “in trade or commerce” narrowly or broadly. In reference to the broad construction their Honours said (at 602-603):

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.

138    In reference to the narrow construction their Honours said (at 603):

Alternatively, the reference to conduct "in trade or commerce" in s.52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions 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 N.S.W. v. The Commonwealth (1948) 76 CLR 1, at p. 381, 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.

(Emphasis added.)

139    The majority held (at 603-604) that the narrow construction was to be preferred, and explained that the phrase “in trade or commerce":

…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 purposes of, its overall trading or commercial business.…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.

(Emphasis added.)

140    The majority noted (at 604) that the dividing line between what is and what is not conduct “in trade or commerce” may not be clear and that such cases:

…may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character.  The point can be illustrated by reference to the examples mentioned above.  The driving of a truck for the delivery of goods to a consumer and the construction of a building for another pursuant to a building contract are, no doubt, trade or commerce in so far as the relationship between supplier and actual or potential customer or between builder and building owner is concerned.  That being so, to drive a truck with a competitor’s name upon it in order to mislead the customer or to conceal a defect in a building for the purpose of deceiving the building owner may well constitute misleading or deceptive conduct “in trade or commerce” for the purposes of s 52.  On the other hand, the mere driving of a truck or construction of a building is not, without more, trade or commerce and to engage in conduct in the course of those activities which is divorced from any relevant actual or potential trading or commercial relationship or dealing will not, of itself, constitute conduct “in trade or commerce” for the purposes of that section.  That being so, the giving of a misleading handsignal by the driver of one of its trucks is not, in the relevant sense, conduct by a corporation “in trade or commerce”.  Nor, without more, is a misleading statement by one of a building company’s own employees to another employee in the course of their ordinary activities.  The position might well be different if the misleading statement was made in the course of, or the purposes of, some trading or commercial dealing between the corporation and the particular employee.

141    The majority concluded (at 604-605) that because the alleged misleading or deceptive conduct in that case consisted of an internal communication between employees in the course of their ordinary construction activities, the conduct was not “in trade or commerce”.

142    In Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153; [2015] FCAFC 52 (Fletcher) at [31] the Full Court (Middleton, McKerracher and Davies JJ) said:

In Concrete Constructions, focus was placed upon “the central conception” of trade or commerce and not 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. As Yates J noted in Toben v Jones (2012) 298 ALR 203 at [40] and the authorities there cited, conduct “in relation to” or “in connection with” trade or commerce is not sufficient to engage the provision.

Factual findings

143    Hi-Rise made a series of contentions as to the factual findings that should be made, most of which I accept. It is convenient to note (or reiterate) that I find as follows:

(a)    Standards, including the 1992 and 2013 Standards, are products that can be purchased or subscribed for by any member of the public;

(b)    as the peak Australian Standards body, Standards Australia facilitates the development and revision of Standards and it published the 2013 Standard;

(c)    Standards Australia promotes the benefits of Standards and standardisation on its website, and it specifically promoted the 2013 Standard through the media release.

(d)    Standards Australia commonly uses business and economic terms in promoting Standards including by stating that Standards save time and money for businesses, increase productivity for businesses, develop standards for business and business development, promote innovation and support industry development while protecting intellectual property, and that the process that leads to standardisation is big business with over 1000 recognised standards development organisations worldwide;

(e)    Standards Australia is a sizeable operation. Under its auspices:

(i)    in the 2012 financial year 180 new Standards were developed, and there were 6,920 total current Standards. Its revenue from Standards development and related activities was approximately $9.365 million which includes royalties of $3.694 million from the sale of Standards through SAI;

(ii)    in the 2013 financial year 228 new Standards were developed, and there were 6,901 total current Standards. Its revenue from Standards Development and related activities was approximately $8.736 million which includes royalties of $3.879 million from the sale of Standards through SAI;

(f)    Standards Australia said that its vision is to be a world leading and financially secure Standards development organisation and its Strategic Plan includes ensuring its finances are secure and sustainable for long-term viability and that the economic value of Standards is understood by business leaders;

(g)    since November 2003 Standards Australia has licensed the commercial rights to publish, market, distribute and sell Standards to SAI pursuant to the Licensing Agreement. Standards Australia receives significant royalties from SAI, derived from the sale of Standards and related products;

(h)    Standards, including the 2013 Standard, are available for purchase on-line through SAI, including via a link on Standards Australia’s website to SAI’s website;

(i)    SAI operates an international business which markets and sells information services by purchase or subscription, including Standards and related products, and the Information Services Division of its business is substantial and growing;

(j)    SAI’s website said that Standards help businesses and customers by sharing technical expert knowledge, by providing knowledge to implement safe work practices, by optimising operations and therefore the bottom line, by providing a competitive advantage through sustainable business improvement, by assisting effective risk management strategies, and by ensuring products, services and systems are safe, reliable and consistently perform the way they are intended to; and

(k)    for installers, certifiers, engineers and designers of equipment and systems for working at height the 2013 Standard is a necessary reference and compliance document. In my view it is effectively compulsory for members of the target audience to purchase the Standard if they wish to continue working in the industry.

The relevant conduct

144    In order to determine whether Standards Australia’s conduct is “in trade or commerce” it is first necessary to delineate the relevant activities. The Court’s task is not to consider the “immense field of activities” in which Standards Australia operates and it must instead focus upon the relevant activities and whether or not they are, by their nature, conduct which bears a trading or commercial character.

145    Standards Australia’s relevant conduct can be divided into three main species of activities:

(a)    Its activities in making the General Standards Representations by publishing the impugned statements on its website, in the Developing Australian Standards brochure, and in the 2013 Annual Review. In these activities Standards Australia promoted the general benefits of Standards and standardisation through assertions including that Standards ensure goods and services are safe, contribute to improved health and safety and are based on sound industrial, scientific and consumer experience.

(b)    To the extent the 2013 Standard Representations are based in statements in the Standard itself, the relevant conduct is Standards Australia’s activities in developing or facilitating the development of the 2013 Standard and in publishing that Standard.

(c)    To the extent the 2013 Standard Representations are based in statements in the media release, the relevant conduct is providing input into the content of the media release and publishing the media release. In these activities Standards Australia promoted the benefits of the 2013 Standard, through assertions such as that the requirements in that Standard make it more safe and less risky for users than complying with the requirements under the 1992 Standard, provide greater safety for users and ensure building sites provide the optimal level of safety for users.

The development and publication of the 2013 Standard

146    It is convenient to deal, first, with the second species of activities, Standards Australia’s activities in developing, or facilitating the development of, the 2013 Standard, and in publishing that Standard.

147    Hi-Rise accepts that Standards are developed by a technical committee appointed by an autonomous SDO under the auspices of Standards Australia. It accepts that, at least in part, Standards Australia’s role in facilitating the development of Standards is undertaken in the public interest. However, it argues that Standards Australia operates a substantial business from Standards development activities which generates millions of dollars in royalties each year. It points to statements in the Strategic Plan and by Standards Australia’s Chairman and CEO to argue that Standards Australia has commercial objectives and that the royalties it receives from SAI are significant to its long-term financial viability. It contends that, at least in part, Standards Australia’s activities in developing and publishing the 2013 Standard were aimed at increasing sales of Standards for the commercial benefit of itself or SAI, and that those activities therefore have a trading or commercial character.

148    I do not agree. First, I say this because Standards Australia facilitates the development of Standards but it does not itself develop them. Instead, it accredits SDO’s to develop Standards which usually do so by convening a technical committee. The technical committees are composed to ensure balanced participation by those whose interests will be significantly affected by the resulting Standard, and the members are nominated by Nominating Organisations who represent the views of large groups of stakeholders, such as government bodies, industry associations, community-based and consumer organisations, employee organisations and professional, technical and trade associations. The technical committees are required to seek and consider public comment as to the proposed Standard. Once the technical committee has reached a consensus view that the Standard is appropriate, it is adopted by the Standards Development Committee of Standards Australia. None of Standards Australia’s activities in this regard bear any of the hallmarks of trading or commercial activity.

149    The terms of reference of the Technical Committee that prepared the 2013 Standard, the Standardisation Guides, the email communications between the members of the Technical Committee, the Preliminary Impact Analysis, the 2013 Standard itself and the surrounding circumstances show that the activities of developing and publishing Standards, including the 2013 Standard, do not, of their nature, bear a trading or commercial character. The evidence tends to show that Standards Australia’s activities in developing and publishing the 2013 Standard were directed to the creation of a Standard in the public interest and did not include, even in part, trading or commercial aims. In my view the evidence does not support the conclusion that, even in part, Standards Australia facilitated the development and publication of the 2013 Standard with a view to earning revenue for itself or SAI.

150    Second, the essence of “trade or commerce” is conduct which involves dealings between parties through trading activities, or the exchange of goods or services for reward. In the present case:

(a)    neither the development of the 2013 Standard, conducted under the auspices of Standards Australia, nor the publication of the Standard involved dealings with another party;

(b)    sale of the Standard was a separate activity undertaken by SAI. There was no “buying” or “selling” activity involved in preparation or publication of the Standard;

(c)    Standards Australia does not sell Standards, and it did not offer the 2013 Standard for sale to the target audience. Indeed, pursuant to the Licensing Agreement, it is not permitted to do so; and

(d)    publication of Standards does not, in itself, generate income for Standards Australia. Under the Licensing Agreement royalties are only payable based on sales of Standards and related products, not based on publication.

151    Third, while the critical question is whether the relevant activities, by their nature, bear a trading or commercial character, Standards Australia’s overall activities are nevertheless relevant. A consideration of these activities points away from the conclusion that the relevant activities are “in trade or commerce”.

152    Standards Australia was constituted as a body corporate in 1950, under a Royal Charter, to develop Standards in the national interest. The first object in its Constitution is “to prepare and maintain standards as a principal activity both at the national and international levels and to promote the general adoption of standards (including international standards).” It is a company limited by guarantee, it has no shareholders who seek a return on their capital, its income and property is applied solely towards the objects of the company, and it is appropriately described as not-for-profit. No dividends or bonuses are payable to any of its Members, and even on dissolution or winding up of the company no surplus is to be distributed to its Members.

153    Its Members are representatives of the Commonwealth and State governments, professional, trade and industry associations, consumer organisations, trade unions and research organisations. They appoint persons to the Council, its governing body, and the Council elects the Board, which has day-to-day control. This is not a structure typical of an organisation with commercial objectives. The weight of the evidence runs against the conclusion that, even in part, the Members, the Council or the Board have commercial objectives in facilitating the development or publication of Standards.

154    The MoU with the Commonwealth Government provides that Standards Australia is responsible to assist the community to strengthen the national Standards system. It recognises Standards Australia as the peak non-government Standards body in Australia with the responsibility of coordinating the development of Australian Standards and Australia’s participation in the development of international Standards. Under the MoU Standards Australia accepts obligations to provide national leadership in establishing Standards, to make the Standards development process accessible to the general public, to promote and provide opportunities for public comment on draft Standards, to undertake a Net Benefit analysis to justify the setting of priorities for the development of new or revision of existing Standards and make such analysis available on request, and to ensure that relevant stakeholders (including small business, consumer organisations, industry and government) are given opportunities for input into priorities for Standards development. In the international sphere Standards Australia undertakes to act in the national interest (rather than in the pursuit of any private interests).

155    The August 2011 publication said that Standards Australia is “charged” by the Australian government to meet Australia’s need for contemporary, internationally aligned Standards. The Minister said that Standards Australia is one of four key bodies working together with the Government as part of Australia’s world-class standards and conformance infrastructure.

156    Standards Australia’s acceptance of these obligations points away from the conclusion that it develops and publishes Standards with an eye to the commercial benefit of itself or SAI. The evidence shows that Standards Australia fundamentally operates in the public interest, and has a quasi-government role. That does not, of course, exclude characterisation of the relevant activities as being trading or commercial activities (Aboriginal Legal Service at [68]), but it points away from that conclusion. Contrary to Hi-Rise’s contentions, I am not satisfied on the evidence that Standards Australia’s activities in facilitating the development of Standards or in publishing Standards were aimed, even in part, at increasing sales of Standards for the commercial benefit of Standards Australia or SAI.

157    I accept that the royalties Standards Australia receives from SAI, which are derived from the sale of Standards, is significant to Standards Australia’s financial viability, but that does not mean that its particular activities in developing and publishing Standards are “in trade or commerce”. I consider the royalties revenue is essentially incidental to Standards Australia’s activities in developing and publishing Standards. Amongst other things, its activities in developing and publishing Standards do not occur in the course of a trading or commercial relationship nor do they otherwise bear a trading or commercial character.

The promotion of the general benefits of Standards

158    I now turn to the first species of activities I described at [145], being Standards Australia’s conduct in making the General Standards Representations through statements on its website, in the Developing Australian Standards brochure and in the 2013 Annual Review.

159    Hi-Rise accepts that Standards Australia has not sold Standards since it entered into the Licensing Agreement with SAI in 2003. However, it argues that Standards Australia continues to promote or market Standards, at least in part, to increase sales of Standards for the commercial benefit of itself or SAI. Hi-Rise argues that the evidence supports findings that the General Standards Representations were promotional and marketing statements aimed at influencing businesses and consumer attitudes and behaviour, were made at least partly to increase sales of Standards, including the 2013 Standard, for the mutual benefit of Standards Australia and SAI, and were not in any way analogous to political, governmental or departmental statements. It argues that the evidence demonstrates that Standards Australia’s activities in making the General Standards Representations was conduct “in trade or commerce”, whether that is Standards Australia’s own trade or commerce, SAI’s trade or commerce, or the trade or commerce of end-users and purchasers of Standards.

160    It is plain that the General Standards Representations were aimed at promoting the benefits of Standards and standardisation, particularly the safety benefits, to the target audience. In Concrete Constructions the majority said (at 604) that conduct “in trade or commerce”:

…includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers.

161    Toohey J explained (at 613) that the relevant conduct may relate to the trade or commerce of a party other than the representor. His Honour said that:

…in most cases the focus will be on the nature of the defendant’s business but the section is not so limited. It does not, in terms, refer to the trade or commerce of the particular corporation.

162    In Houghton v Arms (2006) 225 CLR 553; [2006] HCA 59 at 565 per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ, the High Court considered the meaning of “in trade or commerce” in analogous State fair trading legislation and approved Toohey J’s remarks in this regard. The Court said:

Moreover, in his judgment in Concrete Constructions, Toohey J emphasised that, while in most cases, the focus would be on the nature of the business of the party making the representation, s 52 was not so limited; in particular, the section did not, in terms, refer to the trade or commerce of any particular corporation. Accordingly, statements made by a person not himself or herself engaged in trade or commerce may answer the statutory expression if, for example, they are designed to encourage others to invest, or to continue investments, in a particular trading entity.

(Emphasis added.)

163    As the authorities show, statements by a person that are designed to persuade others to purchase the goods or services of a trading entity answer the description of conduct “in trade or commerce”. That is unsurprising when the purpose of such activities is to increase or maintain sales of goods or services of the entity whose commercial interests the representor is assisting. By its nature such conduct has a trading or commercial character.

164    However, it must be kept in mind that it is the character of the act, so far as the person doing the act is concerned, which is central. In Williams v Pisano (2015) 90 NSWLR 242; [2015] NSWCA 177 at [41] (Williams) Emmet JA said (with whom Bathurst CJ and McColl JA agreed):

It is the character of the act that is the subject of complaint, so far as the person doing the act is concerned, that is critical. Thus, for example, where a municipal council issues a certificate concerning the characteristics of land within the area of the council (as part of its statutory functions), that will not be conduct in trade or commerce by the council, even if the certificate is issued to a prospective purchaser who is engaged in trade or commerce and who has requested the certificate in order to further that activity.

(Emphasis added.)

165    Conduct by a corporation which does not otherwise bear a trading or commercial character is not “in trade or commerce” simply because it can be labelled as promotional or promotes a corporation’s business interests. To take that approach would be to use the broad construction of “in trade or commerce” which the majority in Concrete Constructions rejected: see Village Building Company Limited v Canberra International Airport Pty Ltd (2004) 139 FCR 330; [2004] FCAFC 240 at [30], [55], [59] per French, Sackville and Conti JJ. The question is whether the conduct falls within the “central conception” of trade or commerce.

166    In passing I note that, if I was satisfied that Standards Australia’s activities in publishing the General Standards Representations were, even in part, designed to encourage members of the target audience to purchase Standards for the commercial benefit of itself or SAI, I would have little difficulty in concluding that it was conduct “in trade or commerce”. However, I am not so satisfied.

167    Nor am I satisfied that the other matters to which Hi-Rise points mean that Standards Australia’s promotional activities should be seen, by their nature, to bear a trading or commercial character. I give little credence to Hi-Rise’s contention that there are critical omissions in Standards Australia’s evidence. Hi-Rise argues that Standards Australia’s evidence is limited and general in nature and does not include important relevant evidence concerning its business operations, the nature and extent of its commercial relationship with SAI, its royalty income, the commercial value of its Standards as products, or its strategic goals and aims as disclosed in the statements made by its Chairman and CEO and in the Strategic Plan. It argues that Standards Australia could have led this evidence but elected not to do so. Hi-Rise had the onus to establish that the Standards Australia’s promotional activities were “in trade or commerce” and in my view it did not do so.

168    I also do not accept Hi-Rise’s contention that there is no evidentiary basis to support Standards Australia’s assertion that the impugned representations were not made for the purpose or objective of advancing the trading or commercial activities of Standards Australia or SAI. In my view a significant body of evidence supports this inference. The following matters are significant to my view in this regard.

169    First, the Constitution requires Standards Australia to promote Standards and standardisation. In my view these objects, which are divorced from any commercial or trading objectives, are the primary reason for its promotional activities.

170    Article 7 of the Constitution sets out the following relevant objects:

(a)    to prepare and maintain standards as a principal activity both at the national and international levels and to promote the general adoption of standards (including international standards)…;

(b)    to utilise all available forms of communications and media to ensure that the standards and related services needs of all stakeholder groups are met, with particular emphasis on the needs on Subscribers and existing and potential customers;

(c)    to coordinate the efforts of business and industries for the improvement and standardisation of but not limited to materials, products and processes in relation to fitness for purpose, terminology, classification, testing, variety, reduction, interchangeability, design and safety generally in order to promote economic and business efficiency;

…

(e)    to adopt such measures and take such steps and do all such things as may, in the opinion of the Board, be conducive to the promotion of the interests of the Company;

…

(i)    to deliver information and education services including but not limited to seminars, workshops and conferences in the cause of education in the application and benefits of standardisation;

(j)    to prepare and make available or distribute materials associated with standardisation including but not limited to handbooks, codes, guides and supplements as may seem conducive to the objects of the Company;

…

(Emphasis added.)

171    Hi-Rise seeks to rely on part of Article 7(b) which refers to meeting the needs of “existing and potential customers” but understood in context that phrase does not give Standards Australia’s activities the trading or commercial character for which Hi-Rise contends. Rather than its promotional activities being aimed at carving out a larger market share for its commercial benefit (or that of SAI), the evidence tends to show that Standards Australia’s relevant promotional activities were aimed at raising general awareness and promoting the benefits of Standards and standardisation. At least in relation to the 2013 Standard those activities were directed to people for whom it was effectively compulsory to purchase that Standard.

172    Second, under the MoU both Standards Australia and the Commonwealth were obliged to:

(a)    “exert their best efforts to promote understanding and awareness of Australian Standards and their uses through educational, training and promotional activities”; and

(b)    “use their best endeavours to promote the role of Standards Australia and the Australian standardisation process within governments, industry and the community.”

173    These requirements, again divorced from any trading or commercial objectives, were also central to Standards Australia’s promotional activities.

174    Third, contrary to Hi-Rise’s submissions, there are some parallels between Standards Australia’s role and that of the Commonwealth government. Standards Australia’s promotional activities are consistent with the obligations imposed on it and the Commonwealth under the MoU, and are similar in nature to the promotional statements made by the Department in the August 2011 publication. I do not suggest that Standards Australia’s position is equivalent to the Commonwealth’s position, but it works closely with the Commonwealth to pursue the public interest in Standards and standardisation and its role can properly be seen as quasi-government. This also provides some support for the conclusion that its promotional activities do not, by their nature, bear a trading or commercial character.

175    When Standards Australia’s promotional activities are considered in the context of its objects, the fact that it is controlled by representative Members, its obligations under the MoU, its role as the peak non-government Standards body as part of Australia’s Standards and conformance infrastructure, its quasi-government role, the process of developing Standards through representative technical committees convened by SDO’s, the requirement for public input into Standards, and its not-for-profit status, in my view the evidence does not support the conclusion that, even in part, its promotional activities were designed to encourage sales of Standards or with an eye to earning revenue for itself or SAI. I consider the evidence supports the conclusion that Standards Australia develops, publishes, and promotes Standards because of the important economic, regulatory and safety benefits that will flow to the community.

176    Fourth, and importantly, Mr Stingemore gave unchallenged evidence, which I accept, that Standards Australia does not engage in promotional activities aimed at increasing the distribution of its Standards. That evidence is consistent with my view of the weight of the evidence before the Court. In itself his evidence reveals the error in Hi-Rise’s contention that there is no evidence to support Standard Australia’s assertion that it does not develop, publish or promote Standards for trading or commercial reasons.

177    Fifth, Hi-Rise makes a number of further contentions in support of the submission that Standards Australia’s promotional activities are in trade or commerce, which I now briefly deal with.

Standards Australia uses the language of business and economic terms to promote the benefits of Standards

178    In support of this contention, Hi-Rise relies, amongst other things, on various statements of Standards Australia’s Chairman and its CEO in Standards Australia’s Annual Reviews. Such statements include that “my highest priority as Chairman has been to advocate the economic value of Australian Standards” and that “we welcome the opportunity to facilitate standards development in support of business objectives”. Hi-Rise also relies on the fact that Standards Australia published a research paper titled “The Economic Benefits of Standardisation” (the research paper) which seeks to empirically demonstrate the value of Standards to the Australian economy, and proposes a strong and positive relationship between Standards and economic performance.

179    In my view these matters carry little weight. The publication of a research paper regarding the general economic benefits of standardisation is not inherently a trading or commercial activity, particularly when it was published without charge, there was no trading or commercial relationship between the publisher and the reader, and the research paper concerned the general economic benefits of standardisation rather than the benefits of any particular Standard applicable to the reader: see Plimer v Roberts (1997) 80 FCR 303 at 327 per Lindgren J. Nor do the statements of Standards Australia’s Chairman or CEO about the benefits of Standards and standardisation, by their nature, bear a trading or commercial character, replete as they are with the language of business. While the publication of such statements might be “in relation to” or “in connection with” trade or commerce, I do not consider them to be “in trade or commerce”.

Standards Australia provides direct input into SAI’s marketing content and strategies including input on the target audience

180    The evidence tends to show that Standards Australia’s input into SAI’s marketing is quite limited. Mr Stingemore said, and I accept, that from time to time SAI sought information from Standards Australia to assist it in marketing a Standard such as by seeking clarification on the relevance of a Standard to determine the likely interest groups, or to seek input on which image best depicts the Standard. The evidence shows that SAI made such enquiries of Standards Australia in relation to the 2013 Standard. There is, however, little to show that Standards Australia’s activities went further than this. In my view there is little force in this point.

Under the Licensing Agreement Standards Australia is required to cooperate and meet with SAI in connection with the development of opportunities for mutual benefit.

181    The Licensing Agreement contains a term to this effect, but there is no evidence that Standards Australia has ever cooperated with SAI with a view to increasing sales of Standards for the commercial benefit of itself or SAI or with an eye to earning revenue for itself or SAI.

Pursuant to the Licensing Agreement Standards Australia receives royalties from SAI from sales of Standards and it is incentivised to produce new materials for sale

182    A term of the Licensing Agreement provides that Standards Australia is to be incentivised to create Significant New Material (as defined), but there is no evidence that Standards Australia was so incentivised, and no evidence that it ever created Significant New Material. As I have said I accept Mr Stingemore’s evidence that Standards Australia does not promote Standards so as to increase their distribution. As I have said, I do not consider the evidence supports the conclusion that, even in part, Standards Australia promotes the benefits of Standards in order to increase the sales of Standards for the commercial benefit of itself or SAI.

183    It is also significant that the definition of Significant New Material excludes revision of an existing Standard, which excludes the 2013 Standard.

Under the Licensing Agreement Standards Australia is required to regularly review existing Standards which it did in developing the 2013 Standard and replacing the 1992 Standard

184    I accept that the Licensing Agreement contains a term to this effect. However, the reviews of Standards are undertaken by technical committees convened by autonomous SDOs. There is no evidence that SDOs and/or technical committees have trading or commercial objectives when they review existing Standards or develop a new Standard. I do not consider the evidence supports the conclusion that Standards Australia has ever facilitated the review of a Standard with a view, even in part, to earning income for itself or SAI. Indeed, the weight of the evidence strongly points the other way.

185    Further, this term of the Licensing Agreement is irrelevant to the review and revision of the 1992 Standard. That process commenced in 1998, approximately five years before Standards Australia entered into the Licensing Agreement. The Preliminary Impact Analysis shows that the Technical Committee reviewed the 1992 Standard and developed the 2013 Standard because of concerns that the 1992 Standard was out of date, inadequate or in conflict with other Standards.

Standards Australia allowed SAI to include some of the impugned statements as to the benefits of Standards on SAI’s website, in the section concerned with the purchase of Standards

186    There is little substance in this point. The relevant statements on SAI’s website are no more than general statements about the benefits of Standards and standardisation. They appear to be copied from public documents such as Standardisation Guide 003 and/or Standards Australia’s website but SAI did not need Standards Australia’s permission to use those words.

Standards Australia’s website stated that Standards can be purchased through SAI, and it provides a link to SAI’s website

187    While Standards Australia’s website contains a link to the SAI website, the fact remains that SAI sells Standards and Standards Australia does not. Before any purchase of a Standard can occur, the purchaser must directly transact with SAI by telephone, email or through its website. In my view the evidence does not support the conclusion that Standards Australia’s website contains this link as an attempt by Standards Australia to increase sales of Standards for the commercial benefit of itself or SAI.

In its Annual Reports SAI promoted itself on the basis that Standards help businesses and customers

188    SAI’s Annual Reports state that Standards help businesses and customers by, amongst other things, sharing technical expert knowledge, providing knowledge to implement safe work practices, optimising operations, assisting effective risk management strategies, and by ensuring products, services and systems are safe, reliable and consistently perform the way they are intended to. It is clear that the business activities of SAI are directed to profit-making and that its Information Services Division makes significant profits from the sale of Standards and related products. It is unnecessary to decide, but I would have little difficulty in concluding that SAI’s promotional statements are designed to encourage people to purchase Standards and related products.

189    However, the critical question is the character of the activities so far as the person undertaking the activities is concerned: Williams at [41]. For the reasons I have given I do not consider that Standards Australia’s promotional activities, by their nature, fall within the central conception of “trade or commerce”. The fact that SAI’s activities bear a trading or commercial character does not mean that Standards Australia’s activities are “in trade or commerce”.

The promotion of the 2013 Standard through publication of the media release

190    Finally, I turn to the third species of conduct which I identified at [145], being Standards Australia’s activities in providing some content for the media release and in publishing it.

191    The promotional statements in the media release (set out at [54] above) are specific to the 2013 Standard. As I have found, amongst other things Standards Australia represented that the requirements under the 2013 Standard are more safe and less risky for users than the requirements under the 1992 Standard, and that the 2013 Standard is intended to ensure that building sites provide an optimal level of safety. The media release said that the 2013 Standard was available through SAI and set out SAI’s website address.

192    Again, Hi-Rise contends that Standards Australia’s promotional statements, coupled with other evidence concerning Standards Australia’s business, support findings that the representations are promotional and marketing statements aimed at influencing businesses and consumer attitudes and behaviour, were made at least partly to increase sales of Standards, including the 2013 Standard, for the mutual benefit of Standards Australia and SAI, and are not in any way analogous to political, governmental or department statements. It argues that the Court should conclude that Standards Australia’s activities in publishing the media release is conduct “in trade or commerce” whether it was Standards Australia’s own trade or commerce, SAI’s trade or commerce or the trade or commerce of end-users and purchasers of Standards.

193    For the reasons I have already set out (at [159]-[190]) I do not accept Hi-Rise’s contentions in this regard. I will not reiterate my reasons but I refer to some further matters which are specific to the 2013 Standard.

194    First, I accept the unchallenged evidence of Mr Davis that the 2013 Standard is an essential reference and compliance document for anyone with a business in the working at height industry. He said that compliance with the 2013 Standard is compulsory for installers, certifiers, engineers and designers of equipment and systems for working at height. He effectively said that they were required to purchase the 2013 Standard if they wished to continue working in the industry.

195    His evidence shows that there was no need for Standards Australia to encourage people reading the media release to purchase the 2013 Standard. Whether or not Standards Australia promoted the benefits of that Standard (indeed whatever it said about that Standard) installers, certifiers, engineers and designers of equipment and systems for working at height were required to purchase and comply with the Standard. This strongly points away from the inference that Standards Australia’s activities in publishing the media release were designed to encourage the target audience to purchase the 2013 Standard for the commercial benefit of itself or SAI.

196    When Mr Davis’s evidence is considered with Mr Stingemore’s evidence – who denied that Standards Australia engaged in marketing activities aimed at increasing the distribution of its Standards – it provides a strong basis for the conclusion that Standards Australia’s activities in publishing the media release (or in providing input into it) were not, even in part, designed to increase sales of the Standard for the commercial benefit of itself or SAI.

197    Second, to an extent the evidence supports an inference that Standards Australia intended the media release to reassure the working at height industry having regard to the disagreement within that industry about the safety of the revised requirements under the 2013 Standard. That can be seen in the email from Mr Stingemore to Mr Davy on 16 December 2013. Such a purpose is not inherently trading or commercial in character.

CONCLUSION

198    I have made orders dismissing Hi-Rise’s claim. I am not aware of any reason why costs should not follow the event, or any reason why the costs ordered should not be ordered on a party/party basis. Unless a party files submissions opposing this course, at the expiry of 14 days I propose to order that Hi-Rise pay Standard Australia’s costs of the proceeding, including any reserved costs, on a party/party basis.

Associate:

Dated:    30 May 2017