s.18 acl -> misleading advertising (not unfair) copy product -> being copied (unfair but not misleading if they make it clear that they are not the original firm, and they are a copy) multiple potential plaintiffs audience is important -> target audience of advertisement look at whole advertisement mislead determined not by inducement to contract but by inducement to enter into a negotiation significance of advertisement flashing across -> not paying full attention since you are watching the show dominant message was not a result of their lack of vigilance, but their marketing strategy not mentioning rival rebate, comparing some products but not others, fair comparison false claims advertisements and puffery advertisements and fine print price claims using an existing name or design puffery you can't avoid liability with fine print proximity of fine print to misleading statement how the disclaimer is expressed -> not clear and overly complicated language ACCC v trivago -> false impression that you would get best offer for hotel. the top position was determined by cost paid by clicks per bid, not the attractiveness of the hotel copying existing name, design, get up, etc. s131 -> apply acl to commonwealth corporations s6 extensions to post, telegraph, territories, etc. claim failed using existing name -> business no longer exists association is more important for deciding whether something is misleading neurofen -> not a significant scientific basis -> one study, not replicated, injunction restraining neurofen from publishing it's advertisements the court only had to prove that there was no scientific basis for a comparative claim, not that something contains a stronger or more effective dose law that legistlates that acl cannot apply to state banking operating outside a state was shot down as invalid as a company cannot be described as a financial corporation for only part of its activities (this is contradictory). thus the law was overturned. it will be applicable under s 18 of state law though the commonwealth application of the concept of corporations is wider than the state defini they didn't win in the case because they saw the cooked patty in the advertisement, not the uncooked patty -> even though the cooked patty was 25% bigger s18 -> section 251 statutory defence for publishers also conduit only defence 1. factual errors 2. nature of target audience 3. nature of product and transaction 4. the whole advertisement - including fine print 5. if there is fine print - does this impact the dominant message? 6. it wouldnt necessarily be limited to mcdonalds to complain - even consumers could complain the s6 extension provisions to natural persons are rarely applied now with state provisions but are still upheld s23 unfair contract terms corporations which are not covered under the acl i) were not incorporated in a territory ii) were not formed for commercial purposes iii) do not engage in commercial activities acting according to law -> things change, does the awareness of the change effect, responsiveness to change, motive: unfair profit intention: audience: implementation (either by inclusion or omission): law: intention: prevent misleading or deceptive conduct implementation: specific provisions administrator vs beneficiary the competition and consumer act 2010 > acl forms part of the cca s4(1) includes business not for profit s4(1) body corporate or controlled interest company of commonwealth or body corporate s18 - personal injury - bulldozing other areas of law, attempts to curtail it only tobacco is allowed for personal injury claims -> does it extend to vaping? s18 claim is no longer allowed s29 -> false representation not only civil liability, but pecuniary penalty crown, constitution, parliament, common law, civil law, statutory law may be prohibited twice in ch 4 and s18/s29. under ch 4 it's made a criminal offense, brought by commonwealth director of public prosecution, extablished beyond all resonable doubt - here only needs to be proved under balance of probabilities false or (OR) misleading representation - standard, quality,value - goods are new - a particular person has acquired or endorsed - sponsorship, approval performance, accessories, uses or benefits - more precise in s29, more difficult to prove compared to the broader prohibition of s18 - price - availibility of repairs - origination - need for goods - existence of right, warranty or condition - need to pay for a contractual condition chapter 3 s29 s18 -> civil chapter 4 -> criminal "freshly baked in-store" misleading director of consumer affairs vs gibson accc vs bloomex - false strikethrough pricing jacking up then decreasing the price is also counted as misleading devising schemes to get around the prohibition doesn't work land, employment, goods or services owner is not liable if they are not doing it in trade or commerce if they falsely make claims about the property agent may be able to recover damages through contract seller would be liable if s was in the business of buying and selling houses if the agent conveys the misleading statement from the owner, they will be liable to the purchases, not the owner - even if they are the source. s18 - misleading conduct. s30 - false representation contract - agreement to indemnify against liability false representation about business opportunities damages civil penalties criminal penalties infringement notices other remedies or sanctions - injunction - non-punitive orders - training, corrective advertising, etc. - disqualification you cannot exclude liability through contracts clause won't work saying you are protected by clause contravenes s29 - $50m is a warranty an exclusion clause - yes consumer guarantees -> just as extensive as warranty from manufacturer never buy the warranty as it usually doesn't give benefits compared to what you would get under acl way it's expressed that you won't get anything s29 false representation about the future - s29 - section 4 -> representations about the future can only be prosecuted for liability if they did not have reasonable grounds to believe so - clearly in terms or conditions - show it is a company - must be company to be liable under commonwealth acl - was it misleading or deceptive - nature of audience - nature of advert (fleeting or paper) - consider advert as a whole - what was the dominate message tpg case (leading autority on dominant message) national exchange case (another on dominant message) homeopathy (shows that effectiveness is how close the disclaimer is to the message) other important nelsons concrete lg HCt = high court PM = p motors? It was extablished by the HCt in X that Y. Applied here this would mean that whether A depends upon what was the B> If it was C, PM would E; if on the other hand it was E, then there would be no contravention. have the case at your fingertips for major tips mentioned in class would attempts to suppress public knowledge of litigation be misleading or deceptive - agreements which convince the consumer to that they were not mislead mention subsections of the acl statute unconscionable conduct - unwritten law unconscionable conduct - statutory unconscionable conduct - contravention of both has civil remedy consequences + can lead to a pecuniary penalty (if in green rectangle) - neither create an offence (neither are in the red rectangle) - they are not replicated in chapter 4 - so pecuniary penalty but not offence - both prohibitions apply only to conduct in trade or commerce - unwritten law u/c covers any form of conduct; statutory u/c applies "only" to conduct relating to the acquisition or supply of goods or services (defined to include land) - for statutory u/c, a long list of matters that may be considered by a court is set out in s22 of the acl commonwealth parliament only has power to legislate in areas specified in the constitution (ie. trade or commerce) - restricts away from personal communications overlap s20, s21 unconscionable conduct law of torts and law of contracts in common law statute law - passed by parliament common law - created by judges "equity" in common law "unwritten law" - not in a statute - in common law - the reason if it is prohibited even if the judge has already prohibited it - judge made law will only make transaction unenforceable - if the transaction has already occured, the transaction will have to be reversed - adding it to the acl gives the victim access to the remedy provisions of the acl. commercial bank v amadio stubbings v jams 2 pty ltd designed to prevent the weak (W) being victimized by the strong (D) 1. W must suffer from some special disadvantage vis-a-vis D that seriously affects W's ability to judge what is in their own best interests. 1. D must be aware of this and take unfair advantage of the situtation. unwritten law is less likely to be used by consumers because of the availability of statute under s21, s22 thorne vs kennedy - requires victimization commercial bank v amadio - amadio's son ran a business, borrowed money from a commercial bank - old amadios, mortgage to guarantee overdraft (parents thought it was limited mortgage, but it was unlimited). old amadios didn't speak english particularly well, weren't capable of reading and properly understanding the documents, misapprehension about the extent of their liability in the event of a default. - could not judge whether in own best interests - relied on their son who misled them - they were elderly and infirm - had limited understanding of english - believed business was flourishing when it was not - had no business experience stubbings v jams asset based lending - not concerned whether borrower can repay the money, concerned whether they have the assets to repay the money in the event that they default and fail to meet payments - laws against predatory lending unemployed, doing odd jobs, lost job and housing - no education, only simple arithmetic, he did own two houses in narre warren but they were occupied by other people went to bank - denied zourkas introduces stubbings to a firm of solicitors who will lend stubbings money from their wealthy client. all transactions go through zourkas, not to lawyers and lenders. lender only interacts through the lawyers. combined equity is higher than the amount he borrowed. money was lent not to stubbings directly but through the victorian boating company - to avoid the responsible lending provisions (they don't apply in relation to companies). high court unanimously decides that jams et al. acted in unconscionable conduct and took advantage of the vulnerable. appealed to court of appeal of 3 judges - they decided that the conduct was not unconscionable, further appeal to 5 judges saying that it is unconscionable. judge through out the plea based on the citation of the incorrect act (acl rather than asic act). remember to cite the correct act! thorne v kennedy matrimonal family law - woman persuaded to come to australia to marry a wealthy older man. the law requires for the woman to go and get independent legal advice for a prenupital agreement. she signs the prenupital agreement anyways, stuck in australia no accommodation, parents are here with no accomodation, came from eastern europe. under tremendous pressure since she wouldn't be able to support herself. family court said not unconscionable, high court said it was unconscionable. statutory unconscionable conduct - not limited by the concept of unconscionability under unwritten law - must be in trade or commerce - must be in relation to the acquisition or supply of goods or services - consumer restriction of statutory unconscionable conduct has been removed - available to businesses - second in popularity only to s18 asic v koblet - "booked-up" credit system - take payment for credit when they recieve social security payments, with residue being available to the person. - prosecution brough against him by asic failed in the high court since the majority in the high court decided that koblet had not exploited his customers' socio-economic vulnerability to extract financial advantage from them. - although koblet's customers were rendered more vulnerable to exploitation by the book-up system than might have otherwise have been the case, the respondent did not take advantage of said vulnerability accc v lux distributors - door to door sales offering to "check" vacuum cleaner - once in the door persuaded elderly woman that a new cleaner was needed. - deception against elderly - door to door sales legislation was contravened acm group ltd "Harassment or coercion" - section 50 is used against debt collection agencies - forceful use. unfair practices offering rebates, gifts or prizes - offence to offer rebate, gift, or prize if they have no intention of offering it. bait advertising - when good or services are adventised at a specific price - reasonable time and in reasonable quantities - if you knew you wouldn't be able to supply them in reasonable prices or quantities adair s32 - one items for less not free (price for 2 is more than you could have got one). wrongly accepting payment 1. accepting payment with no intention of supplying goods/services 2. accepting payment with the intention of supplying other goods/services 3. Accepting payment when there are reasonable grounds for believing that the acceptor would not be able to supply the goods/services within the time specified or a reasonable time and the acceptor was/should have been aware of this 4. accepting payment and then not supplying all the goods/services within the time specified or a reasonable time. 4-> absolute obligation target is different from intention first two have a false intention, second two do not require intention. more powerful. quantus accepting payments for flights that were overbooked unrequested goods and services - prohibition is on "sending" unrequested credit or debit cards to people proceeding concerning a representation of a kind referred to in subsection (1)(e) or (f), the representation is taken to be misleading unless evidence is adduced to the contrary. sending unrequested goods or services and asking for payment demand payment for unauthorizdd entries or advertisements providing additioinal services additional to those requested rebates/gifts - s32 bait advertising - s35 wrongly accepting payment - s36 sending unrequested credit or debit cards - s39 seeking payment for unrequested goods, services or entries - s40-43 prohibitions no liability to pay no responsibility for loss or damage - title passes to consumer after recovery period (1-3 months) gift cards asserting the right to payment is the offence. s29(2) and s29(3) are confusing s29(1)(m) in the act of trade or commerce, in connection with the supply of goods or services, a person must not make false or misleading respresentations concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy. under $100,000 - he is a consumer - goods and services acquired in trade or commerce - covered under consumer guarantees regime transactions before 1 Jan 2011 are covered under TPA you do not have a right to return the item if you don't like it only have right to return goods if there is something wrong with them the tractor is not covered under the acl as it is over $105,000 - over $100,000 - transport of goods on roads - personal purposes if tractor is of a kind acquired for personal use or consumption (ie. hobby farm). not a serious commercial tractor were you told anything about the tractor? ask questions about the thing when buying (representations may have a section 18 claim) gift recipients enjoy the same rights as the consumer but the consumer who gave the gift is not counted as a supplier and is not liable. non compliance with a guarantee is not an offense (no pecuniary penalty) doing something that alleges that there is not a guarantee, or does not apply to a guarantee is an offense ACCC v LG Electronics Australia Pty Ltd [2018] FCAFC 96 agitate if you have defective goods 1. services provided with due care and skill (all businesses and professionals including architects and engineers) - s60 2. services will be reasonably fit for the disclosed purpose (excluding architects and engineers) - s61(1) 3. services will achieve the result that the consumer made known to the supplier (excluding architects and engineers) - s61(2) 4. The services will be supplied within a reasonable time unless the parties agree otherwise - s62 consumer guarantees for services - defined broadly and inclusively - rights/interest in relation to land and personal property (ie. leasing/renting is a service) - not services performed by workers for their employers under a contract of service. exclusions - financial services (asic) - architects and engineers - transportation/storage - insurance contract - contracts of services - but not contracts for services - industry specific asic act does !!not!! have a set of statutory guarantees. uses common law technique of implying guarantees into contract of supply. sue for breach of contract. definition of services for all acl includes insurance, but services guarantee excludes insurance due care and skill 1. requires requisite degree of skill and care for the job (unless disclaimed) 2. must exercise skill and care when doing it Cheryl Foster v Smarty Web Solutions: despite best effort, didn't have skill consumer informs supplier of particular service - no reliance / unreasonable reliance - architects / engineers - must be fit for all the consumers to whom they are supplied (ie. limit services to consumers for which the service is fit for service) mayne nickless vs crawford (installing security system, installing security system with direct line to police service - has concern that a wire to the police could be cut by robbers - robbers come and cut the wire, business suffers damages) scenic tours pty ltd vs moore supply within reasonable time - ONLY applies if parties have not agreed on a contract of supply that sets the time for delivery or mechanism to determine the time. no guarantee to comply with an agreed time for performance. you have to invoke the law of contract if they don't comply with the contract. s64 makes any attempt to exclude a !!!guarantee!!! (not any part of the acl), prevent reliance on a guarantee, prevent liability arising for non-compliance: - ineffective - an offense no section in the statute that makes it such that you can't exclude liability for s18, non consumer guarantee stuff - determined by the courts you can't exclude remedies exceptions - non-consumer goods (can limit liability to replacing or repairing goods if not unfair or unreasonable) - recreational services (other than for property damage or "reckless conduct") - state and territory limitations ACL s275 - limitation periods it wasn't scenic tours fault for the floods, but liability still arose. s60, s61 (given care, fitness for purpose) commercial disputes: arbitrable criminal matters/bankrupcy: nonarbitrable s61 - claim is valueless when the company has ceased to operate and is insolvent. 1. it adds to other remedies 2. it is statutory, not contractual 3. cannot be excluded 4. can used by the actual consumer, others who acquire goods from the consumer, affected person consumer is unhappy -> 1. does not do what you were told it would do 2. something breaks 3. the fridge causes some other damage two remedy regimes 1. consumer guarantees regime 2. manufacturers liability regime complications 1. overlap 2. who can invoke 3. remedies 4. preconditions 5. differences s and m step 1 threshold 1. can it be remedied? 2. is it a "major failure"? failure is major if: 1. would not have been acquired by reasonable consumer had they known of nature and extent of failure. 2. there is a significant departure from description or sample 3. goods are substantially unfit for purpose (common purpose or disclosed purpose) 4. goods are unfit for a disclosed purpose 5. goods are not of acceptable quality cannot be remedied, is a major failure 1. reject: refund or replacement, recover foreseeable damages 2. keep: conpensation for reduction in value, recover foreseeable damages 4. terminate contract for services cannot be remedied, not a major failure remedied, major failure remedied, and not a major failure 1. require supplier to fix problem within reasonable time 2. claim damages for foreseeable loss (tell them your purpose, expand ability to claim damages and scope of damages) 3. terminate related contract for services remedies against manufacturer 1. when also the supplier - as for suppliers (ie. apple selling in an apple store) 2. when the manufacturer only express warranty -> requires compliance (can claim damages for non-compliance) acceptable quality/correspondence/repair-spare parts -> danages fir reduction in value + reasonable foreseeable loss or damage note: exceptions/qualifications s272 scams - no specific prohibition of scamming - caught by other provisions who is affected? mass market scams vs relationship based scams unsolicited consumer agreements = door-to-door selling special provisions to door to door sales that do not apply to in store or online imposed because of vulnerability businesses failing to comply face civil and criminal sanctions inertia selling types of agreements 1. business supply to a consumer, of consumer goods or services 2. negotiations take place not at the suppliers place of business or by telephone 3. negotiations (visit or phone call) were not invited - what this covers (what is not to be regarded as an invitation) is set out in materials at 87 4. price unascertainable or more than $100 law applies only to consumer goods exemptions: business contract, discontinued agreements, party plan agreements, renewal agreements, subsequent agreementss emergency services exception unsolicited consumer agreements supplier's obligations - calling times - when calling - what they must do (upfront say why you're there) - before finalizing an agreement formal requirements for an agreement - signature - contents of agreement cooling off period - 10 days. must not supply goods in this period if they cost more than $500. consequences of non-compliance 1. penalties/fines 2. other forms of punishment 3. damages/compensation 4. avoidance of contract within 3 or 6 months Termination Within cooling off-period: 10 days for any reason and even if agreement fully executed After cooling off-period: only for supplier non-compliance (for some contraventions - 3 months), for contraventions more serious (6 months) Method of terminating: no formalities Effect of termination: - Supplier: Refund payments / not claim payments / not place customer on default register - Consumer: take care of goods - Consumer: Return goods - but can keep if not collected within 30 days. - Consumer: pay for services used Lay-by agreements 1. Agreements between supplier and consumer made in T or C 2. Goods not to be delivered until total price paid 3. price to be paid by 3 or more installments - supplier's obligations - termination: no formalities - effect: summarized in materials gift card since 1 November 2019: 3 year expiry, prominently display expiry, bans post-purchase fees.