Consumer law – misleading or deceptive conduct – trading corporation – in trade or commerce

In ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) v Transport Workers’ Union of Australia [2020] FCA 231 (22 December 2020) the Full Court heard ALDI’s appeal from the dismissal of its claim under s18 of the Australian Consumer Law, and specifically the conclusions that the communications made by the respondent (TWU) were not made in trade or commerce and that the TWU was not a trading corporation.

The events underlying the claim were that, during 2017, the TWU published various communications relating to ALDI in the form of media releases, hand-distributed pamphlets and flyers, a media interview and a Facebook post, and undertook certain protest actions at a number of ALDI stores and an ALDI distribution centre.

The communications included statements to the effect that ALDI’s contractual arrangements with trucking companies resulted in truck drivers being underpaid and put under pressure, causing them to speed and drive long hours without mandatory breaks with a detrimental impact on transport safety.

ALDI commenced a proceeding against the TWU which included a claim alleging that its conduct constituted a breach of s18 of the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth), which prohibits misleading or deceptive conduct.

The primary judge found that the communications made by the TWU were not made in trade or commerce and also that the TWU was not a trading corporation. Although it was unnecessary to resolve whether the relevant communications were misleading or deceptive or likely to mislead or deceive, the primary judge concluded that the alleged representations made by the TWU in the communications, save in one respect, were likely to mislead.

The Full Court dismissed ALDI’s appeal. On when conduct is “in trade or commerce”, the Full Court analysed the leading authority, being the High Court decision in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 (at [27]-[36]). As a matter of fact and as a matter of legal principle, the Full Court rejected ALDI’s submissions that the TWU’s conduct was in trade or commerce because it was intended to discourage consumers from shopping at ALDI (at [47]).

Besanko, Bromberg and O’Bryan JJ stated at [53]: “Misleading conduct may affect, and may be intended to affect, the choices of consumers as to the products they purchase and the places they purchase from. However, that circumstance alone does not support a finding that the misleading conduct is in trade or commerce. The misleading conduct certainly relates to trade or commerce. But the conduct will not be in trade or commerce unless in some relevant way the conduct can be said to be an activity that bears a trading or commercial character. Mere advocacy of a social, industrial or political cause is not such an activity. There are many examples of this principle in the decided cases…”

The Full Court also rejected ALDI’s contention that the core activities of the TWU, seeking to advance the industrial interests of its members, was a trading or commercial activity such that the TWU was a trading corporation (at [62]). However, that was not to suggest that a union was incapable of conducting a commercial or business activity; for instance, a union might provide training or similar services for reward.

The Full Court’s conclusion was limited to the contention advanced by ALDI that the primary activities of the TWU, industrial advocacy, were a commercial or business activity (at [65]).

Dan Star QC is a Senior Counsel at the Victorian Bar, ph 03 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

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