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Final

MLL217 Study Guide - Final Guide: Objective Test, Survey Methodology, Contributory Negligence
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11 Pages
70 Views
Fall 2018

Department
Business and Law
Course Code
MLL217
Professor
Sharon Erbacher
Study Guide
Final

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The Nature of Misleading Conduct
The hegemony of Section 18
Section 18 broadly interpreted - regulates negligent misstatements, pre-contractual
misrepresentations, deceit, injurious falsehood, passing off and other false claims in
advertising
Section 18 is often pleaded in preference to common law torts
Section 18 liability is broader; unnecessary to show an intention to deceive or
negligence
Any interested individual can apply for an injunction to prevent repetition of
the conduct
A wider range of remedies are available under the ACL
Liability can be imposed on persons involved in the contravention
Continuing relevance of common law torts
Section 18 applies only to conduct in trade or commerce no application to private
conduct
Exemplary damages not available under the ACL
Note: damages not recoverable for personal injury caused by contravention of s 18
(and other provisions in Part 3-1) unless smoking related: ss 137C, 137E of the CCA
Passing Off
Elements, as stated by Lord Diplock in
Erven Warnink BV v J. Townsend & Sons (Hull) Ltd:
A representation that the Defendant's business, goods or services are those of
another or associated with that other;
Made by a trader in the course of trade;
Calculated to injure the business or goodwill of another;
State of mind
Causes actual damage or will do so.
Locus standi for breach of s 18
Not limited to consumers
Re false claims in advertisements any person can obtain an injunction (s 232)
including:
Consumers
Consumer groups
ACCC
Takes action on behalf of individuals
Very rare that an individual will take action
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Business competitors
Principal group of users of Section 18
Clear that it is available to them since:
Hornsby Building Information Centre v Sydney Building Information
Centre (1978)
s 18 is not limited to consumers despite the heading of the
schedule, as there are no private users, and they initiated
proceedings for their own interests, and not the interest of
consumers
Parkdale Custom Built Furniture v Puxu (1982)
High Court rationale:
will enhance consumer protection,
they are more likely to afford litigation,
more likely to seek injunctions to prevent repetition of
conduct and corrective advertising.
emphasised that s 52 WAS directed at the protection of
consumers and not unfair practices per se
Business competitors
Conduct must be likely to lead consumers into error in their capacity as
consumers
Emphasis on consumers when companies initiate proceedings
Hornsby Building Information Centre v Sydney Building Information
Centre
Parkdale Custom Built Furniture v Puxu
Damage to the competitor insufficient
But note that to claim damages (s 236), the applicant must have
suffered loss.
The nature of the prohibition in s 18
Section 18 prohibits conducts that leads, or is likely to lead, into error the person or
persons to whom it is directed
Likely means a has the capacity or tendency to mislead – not necessary to show
that any person has actually been misled
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd per Gibbs CJ
Likely means a has the capacity or tendency to mislead, a real or not remote
chance or possibility, does not have to be > 50%.
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd
McWilliams Wines Pty Ltd v McDonalds System of Australia Pty Ltd
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s 18 does not extend to conduct which might be regarded as oppressive but which
does not convey information such that they might be led into error
ACCC v Oceana Commercial Pty Ltd
The nature of the prohibition in s 18
Liability is strict – Defendant liable even if acting honestly and reasonably
Bridge Stockbrokers and Moore v Bridges
Plaintiff does not need to show an intention to deceive or negligence
S& I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd
But a breach of s 18 more easily found where corporation intended to deceive
Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd
Also, exceptional cases where intention to deceive relevant; e.g. future
statements; opinions; accessorial liability (see Topic 5)
The nature of the prohibition in s 18
MC that is never communicated to anybody cannot contravene the section
embodying the requirement of communication to a person or persons
Representation? What type of representation?
Silence can amount to MC in a greater range of circumstances than common law
SGIC v GIO
Henjo Investments v Collins Marrickville
No. of seats in restaurant case
Generally s 18 involves an oral or written representation but also
encompasses conduct more generally
Proving misleading conduct
Approach:
1. The conduct was engaged in by the Defendant
2. The conduct conveyed a certain meaning
3. The conduct was misleading or likely to mislead
- Objective test
Proving misleading conduct
1. The conduct was engaged in by the Defendant
Must be proven with a sufficient degree of precision for courts to then assess
whether they were misleading in the circumstances
Obvious where express
More difficult where not express
Circumstantial evidence
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Description
The Nature of Misleading Conduct The hegemony of Section 18 Section 18 broadly interpreted regulates negligent misstatements, precontractual misrepresentations, deceit, injurious falsehood, passing off and other false claims in advertising Section 18 is often pleaded in preference to common law torts Section 18 liability is broader; unnecessary to show an intention to deceive or negligence Any interested individual can apply for an injunction to prevent repetition of the conduct A wider range of remedies are available under the ACL Liability can be imposed on persons involved in the contravention Continuing relevance of common law torts Section 18 applies only to conduct in trade or commerce no application to private conduct Exemplary damages not available under the ACL Note: damages not recoverable for personal injury caused by contravention of s 18 (and other provisions in Part 31) unless smoking related: ss 137C, 137E of the CCA Passing Off Elements, as stated by Lord Diplock in Erven Warnink BV v J. Townsend Sons (Hull) Ltd: A representation that the Defendants business, goods or services are those of another or associated with that other; Made by a trader in the course of trade; Calculated to injure the business or goodwill of another; State of mind Causes actual damage or will do so. Locus standi for breach of s 18 Not limited to consumers Re false claims in advertisements any person can obtain an injunction (s 232) including: Consumers Consumer groups ACCC Takes action on behalf of individuals Very rare that an individual will take action
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