Under s18 of Australian Consumer Law (ACL) a person must not, in trade or commerce, engage in conduct that is:
This section focuses upon conduct rather than representations that a person may make.
The law defines conduct as doing or refusing to do any act.
A person has engaged in conduct that is misleading if they have made a misrepresentation. A misrepresentation may be either express or implied.
The conduct does not need to mislead or deceive. There also does not need to have been an intention to mislead, only that such conduct tends to mislead.
Silence may constitute misleading or deceptive conduct under the ACL. This can be where a person fails to state information which impacts the accuracy of what they have said.
Liability may result from silence if there is a reasonable expectation of disclosure.
If a party makes an:
that they do not uphold, this will not amount to misleading or deceptive conduct.
Conversely, if a person makes that opinion, promise, or prediction:
the conduct will amount to being misleading.
The onus is on the person who made the misrepresentation to prove they had a reasonable ground.
In determining whether conduct tends to:
it is necessary to determine the characteristics of the recipient of the conduct.
Whether conduct is likely to mislead or deceive can depend on the audience. The standard to determine if the conduct was misleading or deceptive must thus vary. For example, where the audience is an expert, the standard may be higher.
The next question is, what responsibility did the person have to protect themselves.
If it is the case that the conduct:
it may be that misleading or deceptive conduct has occurred.
This provision has the potential to apply to a range of situations. This provision under the ACL has applied to:
It is important to remember that the provision will only apply in trade or commerce. This means that the scope of the provision does not capture private dealings.
It is important to have experienced litigation lawyers when:
Contact us if a dispute has arisen due to conduct:
We can advise you on your situation and what your rights may be.
Our litigation and dispute resolution lawyers have significant experience handling these disputes. To speak to a litigation and dispute resolution lawyer:
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000