Misleading or Deceptive Conduct
Misleading or deceptive conduct is a cause of action arising from the Australian Consumer Law which is legislated in schedule 2 of the Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)). Misleading or deceptive conduct can occur in all facets of daily life, including in business and personal dealings on the Gold Coast and nationwide.
The ACL contains a provision which aims to protect consumers by preventing businesses from misleading customers. Section 18 of the ACL provides:
(1) a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive.
Section 18 has two elements:
1. The conduct must occur in the course of ‘trade or commerce’; and
2. The conduct must be misleading or deceptive or likely to mislead or deceive.
Trade or commerce
The misleading or deceptive conduct must occur in the course of trade or commerce to fall within the ambit and protection of section 18. ‘Trade or commerce’ is to be given its ordinary meaning, and applies not only to transactions between corporations and consumers, but to anyone providing or acquiring goods or services. The definition also includes any business or professional conduct whether or not it is carried on for profit. The trade or commerce doesn’t have to have occurred on the Gold Coast, it can have occurred within Australia or between Australia and other jurisdictions.
However, purely private or domestic transactions will generally not fall within the scope of section 18. Other relief for misleading or deceptive conduct in these types of transactions may be available and we recommend you contact our office to discuss your options.
Conduct that is misleading or deceptive or likely to mislead or deceive
For conduct to be misleading or deceptive or likely to mislead or deceive, there must be a ‘real and not remote’ chance that the conduct will mislead or deceive someone as to the true bargain or transaction. Conduct that is misleading or deceptive or likely to mislead or deceive may include:
- False advertising about a company’s or its competitors’ products;
- Small print and disclaimers hiding important information from consumers;
- Bait advertising and special offers which misrepresent products or prices;
- Pricing errors where products are advertised at incorrect prices; and
- Silence and withholding important information.
In misleading or deceptive conduct claims, it is essential to show that the claimant relied on the conduct to their detriment, meaning their reliance on the conduct caused their loss.
What relief can be sought?
There are a number of options for relief from misleading and deceptive conduct including:
Damages – which is the payment of a monetary amount commensurate to any loss a claimant may have suffered;
Injunctions ordering a person or entity to do something or to refrain from doing something; and
Compensatory orders for contravening persons to compensate a claimant. Contravening persons can include directors and employees of companies who have engaged in misleading or deceptive conduct.
How we can help
We recognize the serious repercussions of misleading and deceptive conduct and the fallout such conduct can create. We can tailor a solution to meet your needs and goals by taking a commercial, agile and dynamic approach to the resolution of any matter arising from misleading and deceptive conduct.
We can also assist if you have been accused of or involved in allegations of misleading and deceptive conduct. Contact us to book a consultation on the Gold Coast on (07) 5592 1921 or email firstname.lastname@example.org.