Consumer Law and Public Health Services

Key Points
  • The Court accepted the narrow definition of the term ‘in trade or commerce’ notwithstanding the extended definition in the ACL.
  • The High Court has previously confined the operation of the term ‘in trade or commerce’ to conduct which is itself an aspect or element of ‘activities or transactions which, of their nature, bear a trading or commercial character’.
  • The sending of the email was not in ‘trade or commerce’ and therefore the ACL claim failed.


A recent Supreme Court case which concerned allegation of defamation (reported here on 26 September 2016) also raised the important issue of whether the sending of an email by a paediatrician was a breach of the Australian Consumer Law (ACL).  We are now commonly seeing allegations in medical negligence claims against public health services asserting a breach of provisions of the ACL in relation to the quality of the care provided.

The plaintiffs alleged the paediatrician had engaged in misleading and deceptive conduct pursuant to the ACL in relation to an email he sent to the Department of Education and Training voicing concerns about the services being offered by the plaintiffs to school children in the form of hearing tests.

The paediatrician’s counsel argued that as a threshold issue the claim must fail as the conduct in sending the email was not ‘in trade or commerce’ within the meaning of the ACL. Whilst this decision does not relate to medical negligence claims it does offer some insight in relation to how a Court may deal with this issue. He encouraged the Court to follow the restrictive interpretation of the term given by the High Court when it was required to consider the term in respect of the Trade Practices Act (TPA), which was the predecessor to the ACL.

The Court accepted that the narrow definition given to the term by the Courts in previous cases and considered that the interpretation of the relevant provision in the TPA remained relevant notwithstanding the ACL’s extended definition.

Previously the High Court has confined the operation of the term to conduct which is itself an aspect or element of ‘activities or transactions which, of their nature, bear a trading or commercial character’.

The Court  accepted  that the claim under the ACL must fail as the paediatrician’s conduct in sending the email, which he was under a professional duty in the public’s interest to send, was not in trade and commerce.

So far as what interpretation may be given in a medical negligence case concerning a public health service, we note the case of Murphy in which the Court said:

“For example, if a government were proposing to construct a non-commercial public hospital as part of a State taxpayer funded health care project, it could hardly be thought that government representations to the public as to the supposed benefits of that hospital would have any commercial flavour about them. On the other hand, if a government were proposing to set up, say, a telephone or internet service provider to sell telephonic and internet services to the public, either alone or in partnership with a commercial organization, it is difficult to see why government representations to the public about the supposed benefits of the service would not be of a commercial or at least partly commercial nature.”

Whilst this statement relates to representations made about a public health service and not in relation to the way the public health services should be characterised, it may well be considered by a Court in determining whether health services provided as a legislative requirement and for no charge, can be regarded as being ‘in trade and commerce’ such that the ACL applies to the services provided.

Given the number of medical negligence matters which contain allegations of breaches of the ACL we anticipate that the issue of whether public health services can be the subject of such claims will likely come before the courts in the not too distant future.

Post by Karen Kumar 

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