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Misleading or Deceptive Conduct S 18 “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive” Just for ‘consumers’? • S 18 may be used by consumers, trader, corporations or other parties in the event that those parties have experienced M/D conduct (Custom Build Furniture) “A person” • Includes a corporation (Houghton v Arms) • S 131 applies the ACL to the conduct of corporations Conduct “in trade or commerce” • “Trade or commerce” means: T/C within or outside Australia, and includes any business or professional activity (s 2) • These words have been narrowly interpreted and so it has restrictive operation (Concrete Constructions) the phrase “can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character” • Such conduct includes: promotional activities in relation to, or the purposes of, the supply of goods and services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public (Village Building) • Examples of conduct in T/C: o Promoting own products in advertising campaigns (Gillette Australia) o Misleading reps made in connection w/ the sale of a property or business (Nescor) • More controversial forms of conduct: o Private sales by individuals (generally not in T/C Smolonogov) o Statements made in an employment context (two different lines of authority: negotiations b/w employer and future or existing employee is not conduct in T/C Martin v Tasmania; such negotiations are in T/C because a business cannot conduct any form of trade or commerce w/out employees Stoelwinder) However, in Roberts v UNE the court said only in the course of negotiating a new employment contact w/ potential employee will conduct be in T/C because this is intrinsically commercial. Negotiations with an existing employee are not T/C o Statements made in the course of public debate (General education or information campaigns may not be in T/C if not designed to advance or protect commercial interests Fasold v Roberts) – need a close relationship between the allegedly misleading conduct and the advancement, maintenance or protection of the corporation’s commercial interests o Conduct intended to influence the trade and commerce of another (statements made by persons who are not themselves engaged in T/D may nevertheless held to have been made in T/C Houghton v Arms) “Misleading or deceptive” • Both “lead into error” (Custom Built Furniture) • Determine whether or not the relevant conduct amounted to a representation which has or would be likely to lead to a misconception arising in the minds of that section of the public to whom the conduct has been directed (AstraZeneca) • Taco Bell methodology o Identify the relevant section(s) of the public by reference to whom the question of whether conduct is or is likely to be misleading or deceptive falls to be tested, o Once established, consider the matter by reference to all who come within it, including astute or gullible, intelligent and not, educated and not, and men/women of all ages (objective test would an ordinary and reasonable person from that class be likely to have been misled or deceived?) o Evidence that some person has actually formed an erroneous conclusion is admissible and may be persuasive. But such evidence is not conclusive o Merely causing someone to wonder or leading ton confusion is NOT sufficient to show M/D conduct. Conduct may be M/D is it leads into error o Enquire why any proven misconception has arisen • Need a representation? o For conduct to be M/D it is not necessary that it conveys express or implied representations. It suffices that it leads or is likely to lead into error (Miler v Associates) Identifying the ‘class of consumers’ • The class of consumer likely to be affected by the conduct (Custom Built Furniture) • Must show sufficient nexus between conduct (or apprehended conduct) and the misleading or deception/likely misleading or deception of prospective purchasers • “Reasonable member” (Campomar) o Where the persons in question are not indentified individuals but members of a class to which conduct was directed in a general sense, it is necessary to isolate by some criterion (characteristic or quality) a representative member of that class o Once that is done, an inquiry thus is to be made w/ respect to this hypothetical individual why the misconception complained has arisen or is likely to arise o Identify conduct alleges, examine whether the misled state of mind of the actual consumer was caused BY the conduct in question or some other cause (Backoffice) Proving a significant portion of class misled? misleading/deceptive c. Exclusion clauses i. You cannot exclude the operation of the ACL or CCA (Henjo) 4. Representations about the future a. Court in James v ANZ Banking considered i. There mere fact reps as to future conduct or events do not come to pass does NOT make them misleading/deceptive ii. Nevertheless, a statement re the future may contain an implied statement as to present or past fact. It may represent impliedly that the promisor has a present intention to make good the promise and it may represent impliedly that he has the means to do so iii. A statement involving the state of mind of the maker of the statement, eg promises, predictions and opinions, ordinarily conveys the meaning that the maker of the statement had a particular state of mind when the statement was made and that there was basis for that state of mind. IF the meaning contained in or conveyed by the statement is false in that or in any other respect, it will have been a contravention of s 52 b. Therefore if party A to a contract is attempting to establish that future rep made by party B is misleading/deceptive, A must establish that the future rep: i. Contained an implied statement of present/past fact about the maker’s state of mind or intention; and ii. That the maker of the future rep did not have reasonable grounds for holding that state of mind, intention or for making that future representation 5. Opinions and predictions 6. Silence, of failure to warn, advise or correct a. Note case of man selling his business without disclosing that in 8 weeks time the business (selling flashing signs) was going to be banned by the government because of the distraction it posed to drivers. Does ‘conduct’ imply a positive act? b. The failure to do something IS conduct, under the ACL section 2(2). The courts are just divided in their approach to finding that certain conduct (i.e. silence) is misleading/deceptive c. HCA in Miller v BMW 2010 stated that ‘conduct’ defined in TPA s 4 / ACL s 2(2) is wide enough to capture ‘silence’ and refusing to do an act i. But note s 2(2)(c) seems to suggest that a reference to refusing to do an act includes a reference to “refraining (otherwise than inadvertently) from doing an act” d. Full Court decision in Demagogue v Ramensky 1992 is starting point for principles in evaluating……. i. Early case law required a plaintiff to establish that the defendant owed a positive duty of disclosure before the failure to disclose could be considered misleading or deceptive in terms of the TPA (Rhone-‐Poulence v UIM) ii. That has been rejected. Courts have rejected the need to establish a ‘duty to disclose’ in favour of evaluating the conduct as a whole, within the entirety of the circumstances of the case (CBA v Mehta) iii. Therefore the crucial question is whether the context of the facts gave rise to a ‘reasonable expectation of disclosure’ that if a particular matter existed, it would be disclosed. iv. If the answer to that question is ‘yes’ then it may be that, in the circumstances, that failure to disclose the particular fact amounted to conduct that was misleading or deceptive, or likely to mislead/deceive, in breach of s 18