Uuniversity first year BUSINESS LAW - consumer and business protection legislati
ID: 460173 • Letter: U
Question
Uuniversity first year BUSINESS LAW - consumer and business protection legislation
Chapter 10
Short Answer Questions (end of chapter – pp 308-309): 1, 3, 4 and 5
1. What were the purposes behind the enactment of the provisions that prohibit misleading or deceptive conduct?
2. In what way does s 18 of the ACL differ from s 52 of the TPA?
3. What are the requirements or elements of an action under s 18 of the ACL? Briefly explain these requirements or elements.
4. What remedies are available for contravention of s 18?
5. Is it possible to contract out of liability under s 18 by the use of an express exclusion clause? Is it possible to disclaim responsibility for the accuracy of statements with an appropriately worded disclaimer?
6. Briefly describe the likely impact of s 18 on the common law of misrepresentation. What advantages can you see in proceeding under statute rather than relying on general (note deletion here) law contract principles, such as misrepresentation?
Explanation / Answer
1. The purpose behind he enactment of the provisions that prohibit misleading or deceptive conduct is to prevent, in the field of trade and commerce, a person from engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. If a person does engage in such a conduct then it will be considered a breach and remedies such as injunctions, damages and compensatory orders will be pressed.
2. The word 'corporation' in 52 TPA has been replaced by the word 'person' in 18 ACL. To put it simply, 18 ACL is applicable to individuals as well as corporations, while 52 TPA is applicable only to corporations.
3. 18 ACL deals with greenwashing i.e. the act of misleading consumers regarding the environmental practices of a company. The requirements of action under s 18 of the ACL is misleading and deceptive conduct. 18 ACL provides the general prohibition regarding this matter and includes an array of misleading conduct.
4. The provisions of 18 ACL may lead to civil action. There are no fine imposed for breach. However, court has the power to grant injunctions, damages and remedial orders under 18 ACL.
5. 18 ACL provides that certain specifications cannot be excluded in trade and commerce using an express exclusion clause. Certain disclaimers that are allowed will not be effective if the information given in the disclaimer is found to be purposely misleading. No, it will not be possible to disclaim responsibility for the accuracy of statements with an appropriately worded disclaimer, as it can amount to fraud and can be used for misleading the consumer.
6. 18 ACL will have a positive impact on common law of misrepresentation. This is because the focus on misleading and deceptive conduct is much broader than what constitutes a misrepresentation. The advantages in proceeding under statute will be that the general law contract principles is confined only to persons in a contractual relationship, however, the proceedings under statute will not be confined only to persons in a contractual relationship. This will increase the scope.
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