Misleading Or Deceptive Conduct - Contract

MISLEADING OR DECEPTIVE CONDUCT * * * Legislation in Australia prohibits misleading or deceptive conduct, and creates remedies for breach of the prohibition. This includes but is not limited to imposing liability for misleading statements made in precontractual negotiations. The legislation provides a range of remedies for misleading or deceptive conduct, including setting the contract aside and damages. Australian Consumer Law * The Australian Consumer Law contains some of the provisions of the former Trade Practices Act 1974 (Cth), together with some new provisions. It is a cooperative scheme between the Commonwealth and the States. Altogether, it forms a significant part of the context of contracting in Australia. * The Australian Consumer Law is Schedule 2 to the Competition and Consumer Act 2010 (Cth), and is adopted by the States, e.g. Fair Trading Act 1989 (Qld), s 16(1)(a). * Provisions which prohibit misleading or deceptive conduct (s 18) and unconscionable conduct (ss 20--22). Elements: * The Australian Consumer Law, s 18(1) stipulates that o A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. * This provision covers the conduct of both natural and legal persons. * It only applies to conduct 'in trade or commerce'. * It prohibits conduct that is misleading or deceptive, or is likely to mislead or deceive. "A person" * The Commonwealth parliament has limited legislative jurisdiction. It only has the power to legislate with respect to those matters specifically enumerated in the Commonwealth Constitution. * The Commonwealth Constitution gives the Commonwealth the ability to legislate with respect to corporations. This was the basis of the Trade Practices Act 1974 (Cth), which was the precursor to the Australian Consumer Law. * The states are not limited in the same way. By their enactment of the Australian Consumer Law (e.g. Fair Trading Act 1989 (Qld), s 16(1)(a)), the ACL's prohibition of misleading conduct now applies to persons generally, including corporations.