Misleading or deceptive conduct – representations made by Australian Standards
This decision considers whether Standards Australia, when preparing and releasing Australian standards, does so 'in trade or commerce' within the meaning of section 18 of the Australian Consumer Law.
Section 18 of the Australian Consumer Law (ACL) provides that: 'A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.'
In December 2013, Standards Australia (respondent) published the AS 1657-2013 'Fixed Platforms, walkways, stairways and ladders - Design, construction and installation', a standard primarily concerned with safe working at height. AS 1657-2013 superseded AS 1657-1992, a 1992 standard which dealt with the same subject matter. Hi-Rise Access Pty Ltd (applicant) was a consulting and engineering company specialising in heightsafety, fall protection and suspended access. AS 1657-2013 was significant to the applicant's business because it closely coincided with the type of design, construction and installation work that the applicant undertook. The applicant commenced proceedings alleging that AS1657-2013 breached the ACL by engaging in misleading or deceptive conduct in trade or commerce by representing that: • complying with AS 1657-2013 was more safe and less risky than complying with AS 1657-1992; • AS 1657-2013 ensured building sites provided the optimal level of safety to users; and • AS 1657-2013 was intended to reduce the risks to the safety of users, (together the representations). The question whether these representations were misleading or deceptive was not raised or addressed in the proceeding.
The court dismissed the applicant's claim because the respondent's conduct was not in trade or commerce.
Murphy J accepted the respondent's submissions that the representations were not made in trade or commerce and so were not in breach of section 18 of the ACL.
The court distinguished between the respondent and SAI Global Limited (SAI), the company to which the respondent has granted a worldwide license to publish, distribute and sell Australian standards, an arrangement under which the respondent earns significant income from royalty payments.
Despite the financial arrangements, his Honour found that:
- the representations were not designed to increase sales of Australian standards for the commercial benefit of the respondent or SAI; and
- the respondent operated in a quasi-government role in conjunction with the Commonwealth Government to facilitate the development of Australian standards and to promote the benefits of Australian standards and standardisation in the public interest.
Therefore, in his Honour's view, the representations were not, by their nature, of a trading or commercial character and were not made in trade or commerce.