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Misleading and Deceptive Conduct Under the Australian Consumer Law

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Misleading and Deceptive Conduct

Under s18 of Australian Consumer Law (ACL) a person must not, in trade or commerce, engage in conduct that is:

• misleading; or
• likely to mislead or deceive. 

This section focuses upon conduct rather than representations that a person may make.

What Is Misleading and Deceptive Conduct?

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.

Failure to Disclose Information

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.

Conduct That Is Not Misleading and Deceptive

If a party makes an:

• opinion;
• promise; or
• prediction;

that they do not uphold, this will not amount to misleading or deceptive conduct. 

Conversely, if a person makes that opinion, promise, or prediction:

• without reasonable grounds; or
• with the intent not to uphold it;

the conduct will amount to being misleading.

The onus is on the person who made the misrepresentation to prove they had a reasonable ground.

Audience Is Key

In determining whether conduct tends to:

• mislead; or
• be deceptive;

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:

• goes beyond the scope of taking reasonable care of the party’s interests; and
• is likely to mislead that audience;

it may be that misleading or deceptive conduct has occurred.

Situations Where Conduct Can Be Misleading or Deceptive

This provision has the potential to apply to a range of situations. This provision under the ACL has applied to:

• misleading advertising in the media;
• deceptive selling practices; and
• statements made during pre-contractual negotiations. 

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.

Focused on results

It is important to have experienced litigation lawyers when:

• defending a misleading and deceptive conduct allegation; or
• bringing an action for misleading and deceptive conduct.

Aitken Whyte Lawyers’ Civil Litigation and Dispute Resolution Team are focused on results.

Contact us if a dispute has arisen due to conduct:

• engaged in before parties entered an agreement;
• that led to the parties entering the agreement; or
• where that conduct has led, or is alleged to have led, to certain actions or results that have caused loss.

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:

• call 07 3229 4459; or
• send us an email.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au