LLB202 Study Guide - Final Guide: Australian Consumer Law, Demagogue
1. Misleading or Deceptive Conduct
s18 of the Australian Consumer Law states that ‘A person must not, in trade or commerce,
engage in conduct that is misleading or deceptive or is likely to mislead or deceive’.
Whilst contained within the Australian Consumer Law, it is not limited to consumers.
9.1 Elements
a.1.1. Person
Section 18 of the ACL (Qld) does not limit the constitutional law of states and therefore is
not restricted to corporations.
Applies generally to people; including corporations, partnerships and individuals.
a.1.2. Engage in conduct
Includes doing or refusing to do any act (ACL s2(2)). Conduct will include silence
(Demagogue Pty Ltd v Ramensky).
a.1.3. Trade or Commerce
Trade or commerce has been interpreted widely and covers most commercial transactions.
The one off sale of a business will fall under this section (Bevanere Pty Ltd v Lubidineuse).
a.1.4. Misleading or deceptive
Conduct is misleading or deceptive if it has the tendency to lead a person into error (Parkdale
Custom Built Furniture v Puxu). This is an objective test to be determined in the context of
the facts and surrounding circumstances (ibid).
Whether silence is misleading or deceptive will depend on whether there is a reasonable
expectation that the information would be disclosed after having regard to all the facts and
circumstances (Demagogue Pty Ltd v Ramensky).
Depending on the circumstances, puffs may be considered misleading (Byers v Dorotea Pty
Ltd).
Future representations can be deemed misleading unless the person making the representation
can show evidence of reasonable grounds for making the statement (Australian Consumer
s4).
9.2 Remedies under the Australian Consumer Law
A remedy may be sought against the person engaging in the conduct or any person involved
in the breach. This person must have knowledge of the essential facts of the breach
Section 232 – Injunctions to prevent the conduct from continuing
Section 236 – Damages
Section 237 & 243 – Rescission of the contract, compensation and other orders at the
discretion of the court.
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Document Summary
Misleading or deceptive conduct s18 of the australian consumer law states that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive". Whilst contained within the australian consumer law, it is not limited to consumers. Section 18 of the acl (qld) does not limit the constitutional law of states and therefore is not restricted to corporations. Applies generally to people; including corporations, partnerships and individuals. a. 1. 2. Includes doing or refusing to do any act (acl s2(2)). Conduct will include silence (demagogue pty ltd v ramensky). a. 1. 3. Trade or commerce has been interpreted widely and covers most commercial transactions. The one off sale of a business will fall under this section (bevanere pty ltd v lubidineuse). a. 1. 4. Conduct is misleading or deceptive if it has the tendency to lead a person into error (parkdale.
