Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17

ORDER Appeal allowed with costs. Set aside the orders of the Federal Court made on 15 March 1989 and in lieu thereof order that the preliminary question be answered: No. Order that the respondent pay the appellant's costs of the notice of motion.

Cur. adv. vult.

The following written judgments were delivered:—

May 3 Mason C.J.,Deane, Dawson and Gaudron JJ.

The appellant ("the company") is a corporation which was, in July 1987, constructing a building in Grosvenor Square, Sydney. The respondent ("the worker") was one of the company's employees on the site. He sustained injuries when he fell to the bottom of an air-conditioning shaft while attempting to remove a grate positioned at the entry point of the shaft. He alleges that his injuries were caused by the conduct of the company's foreman who wrongly informed him that the grates at the entry points of the air-conditioning shafts were fixed by three bolts on each side and that it was safe to remove them in the manner explained by the foreman. On the worker's case, he fell down the shaft when "one of the grates gave way by reason of the fact that it was not affixed by bolts or otherwise".

The worker instituted proceedings for damages against the company in the Federal Court. The statement of claim contained the above allegations about the cause of the worker's injury and, attributing the conduct of its foreman to the company, asserted that those injuries were occasioned to the worker "by reason of conduct of the [Company] which was misleading or deceptive or liable to mislead or deceive". By consent, an order was made pursuant to the Federal Court Rules (O. 29, r. 2(a)) that the following question be decided before trial: "Do the facts pleaded and particularized in the Statement of Claim give rise to a cause of action under the Trade Practices Act 1974?" That preliminary question was argued before Einfeld J. in the Federal Court who answered it in the affirmative. The present appeal is brought from his Honour's judgment that the question be so answered. It is common ground that the issue which the question raises is one of statutory construction. Briefly stated, it is whether, accepting all of the worker's allegations about the cause of his injuries and that the misleading or deceptive conduct of its foreman is to be attributed to the company, the conduct constituted a contravention of the provisions of s. 52 of the Trade Practices Act 1974 Cth ("the Act"). If it did, it is not disputed that the worker's action for damages lies, pursuant to s. 82 of the Act, in the Federal Court.