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for a transaction to involve both a supply of goods and the provision of services. This is clear from the reference to services including "a contract for or in relation to the performance of work" where the contract can include "the supply of goods". Other provisions, such as s 3 (and see also s 11(c)) of the Australian Consumer Law also involve the notion of a "mixed supply" where "goods or services are purchased or acquired together with other property or services, or together with both other property and other services".
131 Although it is possible for a contract for the provision of services also to include the "supply of goods", the effect of the exclusionary words at the end of the definition of services requires that the transaction first be characterised to determine whether it involves a "supply of goods". This is why s 11(c) provides that a reference to a supply of goods includes goods supplied with services but s 11(d) does not extend a reference to the supply of services to include a supply of goods. This is also why the Full Court of the Federal Court said, of the definitions, that an agreement could be one for services "unless the subscribers are to be characterised as the purchasers of 'goods'": ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460, 467.
132 If, properly characterised, the whole of the transaction involves the supply of goods then the exclusionary words in the definition of 'services' will mean that none of the supply will involve a service. This point was made by Wilson J in Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd [1986] HCA 72; (1986) 162 CLR 395, 402:
The Act clearly contemplates that services may accompany the supply of goods in such a way as to constitute a single transaction properly described as a supply of goods. It follows that an act or series of acts, once characterized for the purposes of the Act as a supply of goods, cannot also be a supply of services: see Taperell, Vermeesch & Harland, Trade Practices and Consumer Protection, 3rd ed. (1983), p. 163. Thus a contract for the supply and fitting of a windscreen to a motor vehicle has been held to fall within a market in which persons supply goods rather than services: Cool & Sons Pty. Ltd. v. O'Brien Glass Industries Ltd. [(1981) 35 ALR 445, at p 460] (upheld on appeal [[1983] FCA 191; (1983) 48 ALR 625, at pp 635, 646)]. It may not always be easy to make the characterization, the task being to identify, from all the circumstances of the case, the precise legal obligation undertaken by the supplier of the goods.
133 Similarly, if a contract, properly construed, involves no supply of goods then the breadth of the definition of services might make the conclusion simple that the contract involved the provision of services. For instance, in E v Australian Red Cross Society (1991) 31 FCR 299, the Full Federal Court considered whether there had been a contract for the supply of blood plasma in the context of a claim alleging breach of terms which had been implied into the
