Essay Plans on Misleading and Deceptive Conduct

oatsandsugar —  June 22, 2011 — 9 Comments

As part of our exam for Commercial Law, we had to prepare 12 essays on Misleading and Deceptive Conduct (s 18 of the Australian Consumer Law [ACL]; then s 52 of the Trade Practices Act [TPA]) in response to the following questions:

  1. What is conduct in trade and commerce in the context of s 18 of the Australian Consumer Law?
  2. Discuss the extent to which it is necessary to ascertain the person or class of persons to whom misleading conduct is directed?
  3. To what extent can a representation as to a future matter including a non-fulfilled promise amount to liability under s.18?
  4. To what extent can silence amount to misleading and deceptive conduct?
  5. What is the effect of a disclaimer clause on liability under s.18?
  6. What is the effect on a claimant’s claim for damages under the Competition and Consumer Act  and Australian Consumer Law where the claimant or their advisor knew or should have known that a statement made to them was misleading or deceptive?
  7. In Henjo Investments Pty Limited v Collins Marrickville Pty Limited (1989) 89 ALR 539, Lee J observed at 556: “The inquiry as to the amount of loss or damage suffered by a person as a result of, or by reason of the conduct of another in contravention of s.52, becomes an assessment of that which is reasonable having regard to the degree of connection between the loss suffered and the contravening conduct as well as to the extent to which the loss could have been mitigated.”Discuss with reference to relevant case law and current legislation.
  8. Discuss the principles enunciated by the High Court in Murphy v Overton Investments (2004) 216 CLR 388 in relation to the assessment of damages under the Australian Consumer Law for a breach of s 18.
  9. Compare and contrast the contractual and tortious measures of damages with the assessment of damages under the Australian Consumer Law s 236.
  10. In what circumstances will the recovery of damages by a claimant be reduced by the operation of the Competition and Consumer Act and Australian Consumer Law ie s 137B CCA and s 236 ACL)?
  11. In what circumstances will a claimant be statute barred from commencing proceedings to recover damages under s 236 of the ACL for a contravention of s.18?
  12. Discuss with reference to relevant case law and legislation the extent to which the remedies available to a successful claimant under the Competition and Consumer Act, other than damages, are more far reaching and more flexible than the remedies available to a successful claimant at common law or in equity. [NB the ACL is part of the Act].
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1       What is conduct in trade or commerce in the context of s 18 of the Australian Consumer Law?

1.1      Introduction

  • s 18 of the Australian Consumer Law (Schedule II of the Competition and Consumer Act) prohibits certain types of conduct that take place in trade or commerce.  Pursuant to the act (ss 18(1)): A person shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
  • As such, it is central to determine what “conduct” is “in trade or commerce” in order to understand the extent of this restriction.
  • There have been, primarily, two possible constructions of this limitation:
    • The first, a broad construction: anything that occurs “in connection with” or “in relation to” trade or commerce.
    • The second, a narrower construction: conduct that was engaged in by a person as part of “trade or commerce”

1.2      Concrete Constructions v Nelson

  • This was considered in Concrete Constructions v Nelson, where an employee (the respondent in this appeal) claimed that his foreman’s wrong instructions, which lead to his injury, constituted misleading and deceptive conduct.
  • The issue before the court, thus, was whether the internal instructions between an employee and his boss constituted conduct “in trade or commerce”
    • If the broad construction (“in connection with”) was to be used, the conduct would fall under the act; if the narrow construction (part of “trade or commerce”) was to be used, the conduct would be outside of the act.
  • Mason CJ, Deane, Dawson and Gaudron JJ concluded that the narrow construction, here, was most appropriate (finding that the conduct was not in trade or commerce).  They noted:
    • The wording of the act seemed to apply evenly to persons involved in a transaction, or dealing with one another “in trade or commerce”, thus, the nature of the transaction was not central.
    • Whereas the ACL is not bound by the same constitutional limitations as the TPA was, the wording used was in direct reflection of s 51(i) of the constitution, as such, the power cited should encompass the whole act: thus a narrow approach is required.
    • Finally, the phrase “in trade or commerce” in s 18 has a restrictive operation.  It qualifies the prohibited conduct to only apply to such specified conduct.  If the legislature wanted the act to be more broadly construed, it should have been worded as such (Toohey).
  • Thus, their honours concluded that the interpretation of “in trade or commerce” includes activities which are undergone in the course of “carrying on some overall trading or commercial business”.
    • E.g. driving a truck to make a delivery to a client, rather than just driving a truck
  • However, this is limited to the specific act, just because the person acts, generally, in trade or commerce, it does not guarantee that the specific act falls within the scope of the legislation (Bank of NSW v The Commonwealth at 381).

This position, however, is further clarified in certain circumstances.

1.3      Employment

  • Prima facie, it seems that Concrete Constructions excludes all communication made between an employee and his employer.
  • Barto v GPR Management Services states that the ratio in Concrete Constructions should not be construed so broadly:
    • Wilcox J stated that where there are negotiation of the terms of employment, terms which include pay, which affect profit margin, the employment communication falls within the definition of “in trade or commerce”
    • He states, where “conduct which would plainly by conduct in trade or commerce if varied out vis-a-vis a stranger ought not lose that characteristic simply because the party with whom the person is dealing with happens to be an employee”.

1.4      Property Transactions

  • A number of cases suggest that “trade or commerce” does not include conduct by a vendor in real property (Obrien v Smolonogov: where it was found that the conduct of a private vendor is not regulated).
  • In Argy v Blunts, this was found to be a bit more complex.  There, the realtor and law firm were found to be acting in trade/commerce, but the owner was not.
  • The cases under property transactions show how stringent the requirement for conduct to be in “trade or commerce” under s 18, indeed, is: where commercial or trading character is lacking from a party (even where there is a transaction), the conduct falls outside of the act.

1.5      Sale of Business and other miscellaneous transactions

  • This rule was modified in Bevanere v Lubidineuse, whereby a sale of land was part of a sale of a business was held to still be of a commercial character because “is not uncommon for a corporation to acquire and dispose of business during the course of its corporate life”
  • Transactions involving gratuitous acts were held in E v Australian Red Cross Society to be outside of the scope of this act.
    • However, this does not exclude all medical transactions, if consideration is a payment of fees, it falls within the act.
  • Congruently, religious groups, too, do not act in trade and commerce when engaging in their core activities (A-G (ex rel Elisha) v Holy Apostolic Church).
  • Further, professions (Holman v Deal) and politicians (Durant v Grenier) often fall outside the scope of the act

As such, the narrow definition in Concrete Constructions seems to hold true.  However, this matter is somewhat complicated by cases involving Public Commentators.

1.6      Public Commentators/Lobby Groups

  • An early decision held that when public commentators are industry groups promoting their industry, this promotion was conduct in trade and commerce (Gloria v WA Chip and Pulp) since the aim was to protect future income streams.
  • This was furthered in Tobacco Institute v Australia Fed of Consumer Organisations, whereby the commercial interest required was highlighted.
  • However, this rule was modified in Robin v Canberra International Airport, whereby Gyles J stated that, here, where the commentator was one step further removed than in Gloria or Tobacco, the promotion was so indirect so as to bring it outside the scope of the act.
    • It was held that the ratio in Concrete Constructions was stricter than previously interpreted: indirect promotion would be too far removed from trade and commerce to fall within the act.

1.7      Conclusion

The requirement for actions to be in trade or commerce is a strict one, defined narrowly in Concrete Constructions.

    • However, “trade” and “commerce” themselves have been defined broadly, meaning “all the mutual communing, the negotiations verbal and by correspondence, the bargain, the transport and the delivery which comprise commercial agreements” (Re Ku Ring Gai Co Op Building Society)
    • Further, the test has been defined carefully to include the specific action alleged and not the range of activities that a relevant corporation ay be engaged.  There can only be misleading and deceptive conduct where the conduct can be described as having occurred in the course of dealings that “bear a trading or commercial character.”
    • Finally, this test is a test of facts and circumstances: each case will be weighed against the strict requirements outlined in the above case law to judge whether it falls within the scope of this legislation.

2       Discuss the extent to which it is necessary to ascertain the person or class of persons to whom misleading conduct is directed?

Note: this was one of the two essays chosen for the Autumn 2011 exam.

2.1      Introduction

      1. S 18 does not expressly state that a class of person, or, indeed what class of person should be considered when determining if conduct is misleading or deceptive or likely to mislead or deceive.
        1. In some scenarios, thus, it is irrelevant.
        2. For example, where there is a specific target to the representation

i.     Here, the court looks to what each knew or ought to have know about each other as a result of the nature of their dealings (Butcher v Lachlan Elder Realty).

      1. However, in certain scenarios, the class of persons to whom the misleading or deceptive conduct is directed must be taken into consideration to determine if there has been a contravention.
      2. This is primarily the case where there is no one specific target to the representation.
        1. A representation to a group or to a wide audience, for example.
        2. In such a situation, the specific characteristics of that audience (for example, their product knowledge) may be relevant (World Series Cricket v Parish).
      3. Thus, there are two situations (Butcher v Lachlan Elder Realty)
        1. This is a question of fact for the court (NSW Egg Corporation)

2.2      A representation to the public at large

With regards to an express public representation to the public at large, the test outlined in Campomar Sociedad v Nike is as follows:

      • With regards to the allegedly infringing conduct, what is the likely reaction to the representations by ordinary or reasonable members of the class to whom the representation is made?

Thus, it becomes essential to determine the class of people the conduct will be received by.

The test where there is a public representation is set out in Taco Co v Taco Bell, as follows:

      • First, the section (or sections) of the public by reference to whom the question of whether the conduct is or is likely to be misleading must be identified
      • Once the relevant section of the public is established, the matter is to be considered by reference to all who come within it:
        • “including the astute and the gullible, the intelligent and the not so intelligent”… etc.
        • Evidence that some persons within that section have in fact formed an erroneous assumption is admissible, but is not essential.  Further, in and of itself, it does not conclusively establish that the conduct is misleading or deceptive or likely to mislead or deceive.
          • It is necessary to inquire why the proven misconception has arisen.  The fundamental importance of this principle is that it is only by this investigation that evidence of those who are shown to have been led into error can be evaluated
      • This was held to increase the burden on the allegedly infringing party in World Series Cricket, whereby the audience of the advertisement (readers of Australian Women’s Weekly) were found not to know a lot about cricket, thus the conduct was more likely to mislead or deceive.
      • Whilst it may seem that this tends to be to the detriment of the allegedly deceptive party, that is not always the case.  The opposite was shown in Parkdale v PUXU whereby consumers were held to take active precautions to check maker’s marks before purchases of furniture (especially when they look similar).
        • Thus, the principle holds in both the positive and the negative case.

With regards to misrepresentation, the HC has expressed that a “reasonable person” test should be used.

      • Mason J in Parkdale stated that where there is no identifiable individual,  but, rather, a class of persons which is identifiable, “it is necessary to isolate by some criterion a member of that class”
        • Thus, the knowledge and experience of a person of that class is a relevant modifier of this test.
        • In Taco Bell, Deane and Fitzgerald JJ agreed that the character of the class of persons is a decisive factor in determining whether the conduct is m/d

2.3      Limitations

The doctrine may, thus, be surmised as follows:

      • Distinguish the class of persons
      • Isolate a reasonable member of the class
      • Apply the reasonable person test

However, in Taco Bell the affected members of the class were held to be any member of the class, and the reasonable person must represent the sector as a whole.

      1. This has been limited as follows:
        1. Persons who are extraordinarily stupid would not be protected (World Series Cricket: per Frankie J)
        2. Assumptions made by a representee that are extreme or fanciful will not be taken into account (Campomar Sociedad v Nike)
        3. Persons who failed to take reasonable care of their own interests would not be protected (Parkland v Puxu)

Thus, with misleading and deceptive conduct made out to a group of persons, pursuant to s 18, the court must determine whether the context was misleading in the context of the audience that received it.

3       To what extent can a representation as to a future matter including a non-fulfilled promise amount to liability under s 18?

3.1      Introduction

There are two cases here: the first, promises predictions and opinions as to future matters; and the second, representation as to future matters.

      1. The first case derives its authority through implied representations
      2. The second case derives its authority from statute, namely s 4 of the Australian Consumer Law.

Thus, these two must be differentiated: the first case is predictive, opinion based or somewhat speculative (e.g. I think I will have $100 next week to pay you), the second is more certain (e.g. I will pay you $100 next week).

3.2      Promises, predictions and opinions as to future matters

This type of case derives its conduct from the implied representations made by giving an opinion, prediction or promise.

      • In such a representation (e.g. I think I will have $100 next week to pay you) there are implied representations as to current intention
        • E.g. I believe I will have $100 next week
        • E.g. I intend to pay you next week
        • There may be a contravention of s 18 if, at the time, the person did not believe these secondary representations.

The general law, under s 18, is that predictions are normally regarded as m/d if the person knew them to be false or made them with a recklessness as to their truth (Thompson v Mastertouch).

This test clarified in James v ANZ Banking Group, where Toohey J summarized the position for a company making a prediction/forecast as follows:

      • A corporation may be in breach even if the controlling mind of the corporation was unaware of the breach
      • The mere fact that a representation as to future events did not come to pass does not make it deceptive
      • Nevertheless, a statement relating to the future contains two implied statements as to present/past fact:
        • That the representee believed what he said (a representation as to the state of mind of the representee)
        • And that the representee had the ability to make good the promise
        • If either of these representations is false, there may be misleading/deceptive conduct.
          • Each case depends on its own facts/circumstances
          • Note that if the representation is from an expert, it may convey that the opinion was held honestly on rational grounds on the basis of expertise.  It may be misleading if such expertise was not, in fact, applied.

Opinions will not be found to be m/d merely because they are inaccurate (Global Sportsman v Mirror).

      1. It is only misleading if the opinion was not genuinely held, or if the opinion was not subject to skill and care as required professionally (Heydon v NRMA)

Promises binding in contract may amount to a breach of s 18 if they amount to a false representation that the promisor believed what was promised (Accounting Systems 2000 v CCH).

3.3      Representations as to future matters under s 4 ACL

Section 4 of the ACL serves to lump certain categories of future representation into the definition of “misleading”, bringing them within a s18 action.

      1. ss 1 provides that any future representation made without reasonable grounds is misleading
      2. ss 2 places the burden of proof on the defendant to show that the representation was made on reasonable grounds (Futuretronics).

Here, it is important to note

      • Honest belief is not sufficient, there must be reasonable grounds for this belief (Futuretronics)
      • A genuine change of mind may not constitute m/d (James v ANZ)
      • The representation must be capable of being misleading

An example of this is given in McPhillips v Ampol, whereby a franchisee’s representation that there would be no problem in extending his franchise agreement was held to be misleading, since he had no grounds for this belief.

Thus, where a representation is made as to a future matter without reasonable grounds, there is breach of s 18.  Further, where a promise, opinion or prediction is made, there may also be a breach via breach of implied representations.

 

 

4      To what extent can silence amount to misleading and deceptive conduct?

4.1      Introduction

      1. From early on (in Henjo), it was held that the ability to sue in breach of s18 (then s52) for conduct amounting to silence was not limited where there was a common-law duty to disclose.
        1. Rather, this is a statutory provision, and a facts and circumstances test should be applied: do “circumstances give rise to an obligation to disclose relevant facts”
        2. Thus, the definition of conduct by silence in this provision is different from the common law provision

4.2      Black J in Demagogue v Ramensky

  1. Demagogue v Ramensky outlined the general rule for where silence may affect a s18 claim.
  2. In Demagogue, a vendor of land sold land under the false representation that there was a right to use a common driveway.  There was no common law relationship between these parties, so silence had to be construed as conduct otherwise.  Black J said there was a duty, here, to disclose and outlined the following rule:
    1. Misleading and deceptive conduct under s 18 is a question of fact, and thus uses a statutory facts and circumstances test to see if there has been a breach
    2. Failure to disclose is merely one of these factors
    3. To speak of mere silence diverts the judge from the question

4.3      Non-disclosure by a person who has engaged in positive conduct that requires qualification in order to be accurate

  • This situation was explored in Henjo, where the proprietor implied that there was a liquor license.
    • This representation (although not express) was false
    • The question to the court was, did Henjo have a duty to qualify this implied representation?
  • The court applied the rule in Demagogue and stated that, considering the facts of the case, the vendor had a duty to disclose, thus, non-disclosure was m/d

4.4     Non-disclosure by a person who has had prior dealings with the representee

  • This was the situation in Arbest v State bank, where Kirby J overturned the judge at first instance (who stated that “you [Arbest] are the cause of your misfortune”)
    • The trial judge did not apply Demagogue correctly, since not all the facts and circumstances were taken into account
    • Here, the pre-existing relationship was a fact to be taken into account
    • Considering the relationship and the bank’s knowledge at the time, there was m/d
  • Thus, prior dealings are a relevant “fact and circumstance” in determining if silence is “conduct” under the act.

4.5      Non-disclosure and co-extensive duties under common law or equitable principles (e.g. a breach of fiduciary duty)

  1. Applying the test in Demagogue, common law duties may form part of the factual matrix of the case, modifying whether silence is “conduct” under the act.
  2. This was decided in Fraser v NRMA, where Gumow J decided that a general law duty will (usually) tip the scales from silence to conduct.
  3. Further, he stated that, given whom the duty was owed to (“mum and dad” rather than financiers), the wording of the prospectus was more-so misleading.

4.6      Non-disclosure and commercial dealings at arms length

  • In commercial transactions, caveat emptor usually applies, and s 18 will not usually require disclosure, given the nature of business negotiations requires that each party give only the information required.  This notion was limited in Lam v Ausintel by Gleeson J, who held that just because the transaction was of commercial nature, it does not give license to deceive.
  • This was affirmed in Leda Holdings v Oraka, where a lessor was held not to be required to update a commercial lessee on a change in occupation rate (which would have formed part of due diligence).
  • Thus, in commercial dealings, silence is often not enough to constitute conduct, but, again, this is just one of the facts to take into consideration when deciding.

4.7      Non-disclosure of information that is likely to confuse rather than assist

  • Where additional information may confuse rather than assist in decision making, there is no duty to disclose everything, and disclosing everything will not satisfy the requirement to clarity the representation
  • Rather, both sides of the argument must be explained at the same level, so that each may be understood (Fraser v NRMA)

4.8     Non-disclosure by a person who is subject to an obligation of confidentiality

  • In Kabwand v NAB, Lockhart J stated that there are four scenarios whereby a duty to disclose would override an obligation to confidentiality
    • Where the disclosure is compelled by law
    • Where there is a public duty to disclose
    • Where the interests of the party representing require disclosure
    • Or where disclosure is made with consent
  • This was upheld in Brophy v NIAA, where Mahoney, Meagher and Handley JJ stated that disclosure that required a breach of duty of confidence (outside of the above exceptions) means there could not be misleading or deceptive conduct for failure to disclose.

4.9    Conclusion

Essentially, the facts and circumstances test, according to Black J in Demagogue, decides where conduct is conduct within the act.  The above situations modify this test by adding or removing variables from this test, but, again, this test is a matter of fact.

 

5      What is the effect of a disclaimer clause on liability under s.18?

This was the second question chosen in the exam

5.1       Introduction

  • Consumer rights granted by the Australian Consumer Law, such as protection by s 18, are not excludable: they will be void to the extent that they attempt to exclude the operation of this section – it will not negate the misleading or deceptive conduct per se (Henjo v Collins Marrickville)
  • However, disclaimer clauses may affect a claim under this section by ameliorating representations made prior.
  • Further, the disclaimer clause may interrupt causation (acting as a kind of “novus actus interveniens”) disrupting the causality between the representation and the consumer’s decision (disproving reliance, required when suing for damages under s 236).
  • Thus, even given the limited nature of the effectiveness of such clauses, they are often still inserted into contracts (consumer contracts and otherwise) by persons.

5.2      Cases before Butcher v Lachlan Elder

  • In Tantipech, there was a clause in a lease which read “I have relied upon no representations” – this was held not to modify the representations made prior since it was held that the representee did not understand the clause and the contract was obtained, itself, by misleading or deceptive conduct.
  • However, in Lezam, there was a similar clause, but handwritten by the representee.  Here, the judge held that the representee understood the terms of the clause.  Whilst the judge found that this did not automatically negate misleading or deceptive conduct, it was held that this modified the facts as a whole to such an estate that the misleading or deceptive conduct was negated.
    • Further, if the clause was found not to be valid, the court held that the representee, in writing in such a clause, may be found to have mislead if he then sued in contravention of the term he wrote into the contract.
  • In Campbell v Backoffice Investments, it was held that a declaration of non-reliance forms one factor in the facts and circumstances of the case, but may be persuasive in proving non-reliance, breaking causality.

5.3      Butcher v Lachlan Elder

  • In Butcher v Lachlan Elder there was an innocent misrepresentation by a realtor in the form of an incorrect survey diagram (the mean high-water mark was mis-marked).
    • However, on the bottom of each page was a disclaimer, stating: whilst the realtor believes the information given in the brochure was reliable, they did not vet the information and interested persons should research themselves.
    • Butcher relied on this representation and this was a contributing factor in his purchase of the property
  • The court held, in majority, that the test in Lezam was correct: that is, in light of all of the facts and circumstances of the case (including the intelligence and wealth of the purchaser, the character of the transaction, etc.) including the disclaimer clause, the misleading or deceptive conduct was negated.
    • They introduced a two stage test:
      • Would a reasonable reader have read the disclaimer
      • And would the reasonable buyer have understood it?
    • If these were satisfied, the disclaimer would be considered, but still, alongside the other facts/circumstances of the case.
  • McHugh J stated that this test must not divert attention form the fact/circumstances test: taking all of the circumstances into account, was there misleading and deceptive conduct?
    • Further, he stated that a disclaimer in small print not brought to the attention of the representee would not be effective.
  • Kirby J agrees with the application of the law, but differed in the characterization of the facts.
    • He added, however, that a disclaimer should reasonably impinge on the consciousness of the reader, in order to be effective

Thus, after Butcher v Lachlan Elder, if a reasonable reader would have read a disclaimer, and a reasonable reader would have understood it, it is to be taken into account as one (but no the only) fact and circumstance in determining if the conduct was misleading or deceptive.

5.4     The disruption of causation

Whereas the above-mentioned cases analyse the effect of a disclaimer clause on the representation, a disclaimer clause, if effective, may disrupt causation (required by s 236 to sue for damages).

  • Causation is proved using the test in March v Stramare.  Thus, if the disclaimer clause served to sever such a causal chain (that is, it was no longer an inducement into the decision which led to damage – no longer a sufficient cause (it is not necessary for it to be the only cause)), there can be no damages apportioned under s 236 (Keen Mar v Labrador).

5.5      Conclusion

  • Thus, applying the above, a disclaimer clause does not serve to negate liability under s 18.
    • However, it may serve to modify the representation, so that in all facts and circumstances, the conduct wasn’t misleading or deceptive.
    • Further, it may break the chain of causation between the conduct and the reliance, in which case no damages may be sought under s 236 of the act.
  • In either way, a disclaimer clause may reduce liability under s 18 of the act.

6       What is the effect on a claimant’s claim for damages under the Competition and Consumer Act and Australian Consumer Law where the claimant or their advisor knew or should have known that a statement made to them was misleading or deceptive?

6.1      Introduction

  1. Under s 236 of the CLA:
    1. The loss claimed must have occurred “because of” the contravention of a provision in Chapter or 3 (here, s 18).
  2. Thus, it is necessary to prove reliance (Henjo).
  • s 236 includes a duty to mitigate: if the claimant did not mitigate his/her damage, damages claimable may be unavailable.
  • Further, if there has been a substantial failure to mitigate such that it constitutes contributory negligence, damages may be reduces via s 137B of the Competition and Consumer Act.

6.2      Failure to mitigate loss

  • In Henjo v Collins Marrickville, the question of whether damages could be reduced where the applicant knew or should have known that they were being misled or deceived was addressed.
    • Where there was actual knowledge, or where the applicant should have known of the breach of s 18, and there was a failure to mitigate loss, damages under s 236 may be unavailable.
  • The relevant facts are as follows: if the solicitor in Henjo had enquired into the license agreement, the facts (that the license was faulty) would have been apparent, and the applicants would not have suffered damage
    • The full federal court held that the applicant was entitled to recover a smaller claim (limited to “limited trading losses”) since it had failed to mitigate all of its loss.
    • Thus, a representee, here, is under an obligation to mitigate losses, and failing to mitigate losses may lead to a reduction in damages awarded.
  • Where the applicant does some positive act or omission after they knew or ought to have known that the representor’s conduct was in contravention of this act, the court must look at whether the act by the applicant after the conduct was reasonable, taking into account all of the facts and circumstances of the case.
    • If the action was reasonable, then damages are still recoverable (Hellyer Drilling v MacDonald Hamilton).
    • However, if the action was so unreasonable that it will result in a breaking of the causal chain, s 236 damages will not be available to the plaintiff (Hellyer Drilling v MacDonald Hamilton).
  • Thus, where there is such a failure to mitigate (caused by the plaintiff’s actual knowledge, or if they should have known of the representee’s breach of s 18) that the causal chain is broken, damages under s 236 may not be available (Argy v Blunt).

6.3      Contributory Negligence

  • Where there is a claim for damages under s 236 (CCA s 137B (a)) for a breach of s 18 (CCA s 137B (b)), and the representor did not have the intention to mislead or deceive (i.e. there was an innocent misrepresentation) (CCA s 137B (d)), it is possible for the defendant to a claim that there was contributory negligence under s 137B of the CCA.
  • If the above is satisfied, damages payable by the defendant may be allocated onto the plaintiff if the plaintiff failed to take reasonable care (CCA s 137B (c)(i)).
  • Reasonable care includes a duty to mitigate damage (Henjo), therefore, where the claimant or their advisor knew or ought to have known about the misleading or deceptive conduct of the defendant, and failed to act (or acted inappropriately) to their detriment, damages awardable under s 236 may be reduced (note: they can be reduced to 0% if the action is sufficiently contributory to the damage).

Thus, where there is a failure to mitigate so that causation is disrupted, damages under s 236 may not be available.

Further, where the requirements of CCA s 127B have been met, the contributory negligence provision may reduce damages available for failure to mitigate.

 

7       In Henjo Investments Pty Limited v Collins Marrickville Pty Limited (1989) 89 ALR 539, Lee J observed at 556: Discuss with reference to relevant case law.

“The inquiry as to the amount of loss or damage suffered by a person as a result of, or by reason of the conduct of another in contravention of s.52, becomes an assessment of that which is reasonable having regard to the degree of connection between the loss suffered and the contravening conduct as well as to the extent to which the loss could have been mitigated.”

7.1      Introduction

  • This statement in Henjo states that damages must be reasonable with regard to
    • (1) The connection between losses and the contravention of s 18, and
    • (2) Whether or not the damage could be mitigated.
    • Thus, an analysis of these with regards to the quantum of damages is required.

7.2      Causation

  • For a s 18 claim (with damages under s 236) to be successful, there must have been conduct by the defendant which acted as an inducement, that was relied upon by the plaintiff in making a purchase/a decision related to the damages.
    • The requirement for causation is brought forth by s 236 of the act (“because of the conduct” s 236(1)(a)).
    • Thus, the degree of connection spoken of by Lee J seems relevant.
  • In Gould v Vaggelas, the principle of connection between loss and conduct was enunciated as follows (as approved in Henjo)
    • (1) the representee must have relied upon the representation
    • (2) If a material representation is made which is calculated to induce the representee to enter into contract, and that person enters into contract, reliance/inducement may be inferred
    • (3)This, however, is a rebuttable inference
    • (4) The representation need not be the sole inducement
  • As such, we must look to reliance, which is a significant determinant of the degree of connection between the contravening conduct and the subsequent loss.
    • In Henjo, it was held that in determining damages, there must be reliance on the misleading/deceptive conduct which caused the damage
    • This is a two stage test:
      • There plaintiff must have done, or refrained from doing something because of the defendant (Henjo)
      • There must be a sufficient causal link between the conduct and the damages (Gould v Vaggelas)
    • However, the misleading or deceptive conduct does not have to be the “sole inducement”: as long as the conduct in question materially contributes, there is causation, even if there are multiple sufficient causes (Henville; INL)
  • Thus, Lee J’s assertion that there must be a sufficient connection between the damage claimed and the conduct in breach of s 18 holds, without the connection, there can be no claim for damages.
    • This connection may be further clarified by case law, requiring the conduct to be a substantial cause of the damage.

7.3      The applicant’s failure to mitigate loss

  • Where the applicant fails to mitigate the loss in such a manner that the chain of causation is broken, the claim falls outside of s 236 damages, and damages sought under that section (then s 82) are not claimable (Munchis v Belperio; Henjo).
  • Thus, Lee J’s assertion that failure to mitigate damage affects the quantum of damage may be questioned, since subsequent case law stated this was a matter only of causation, and that once causation has been proved, damages are claimable in full.
  • However, s 137B of the CCA allows Lee J’s assertion to hold true.
  • Where there is a claim for damages under s 236 (CCA s 137B (a)) for a breach of s 18 (CCA s 137B (b)), and the representor did not have the intention to mislead or deceive (i.e. there was an innocent misrepresentation) (CCA s 137B (d)), it is possible for the defendant to a claim that there was contributory negligence under s 137B of the CCA.
  • If the above is satisfied, damages payable by the defendant may be allocated onto the plaintiff if the plaintiff failed to take reasonable care (CCA s 137B (c)(i)).
  • Reasonable care includes a duty to mitigate damage (Henjo), therefore, where the claimant or their advisor knew or ought to have known about the misleading or deceptive conduct of the defendant, and failed to act (or acted inappropriately) to their detriment, damages awardable under s 236 may be reduced (note: they can be reduced to 0% if the action is sufficiently contributory to the damage).
  • Thus, Lee J’s claim that the quantum of damages may be affected by mitigation of loss holds.

7.4     Conclusion

  • Causation is necessary in making a claim for damages for a breach of s 18 under s 236.
  • Such causation may serve, as Lee J advances, to determine the amount of loss or damage suffered, where all subsequent damage (after a point) is too remote to satisfy the steps outlined in s1 above.
  • Further, failure to mitigate damages, too, may alter the quantum of damages: not in the manner Lee J advances (in determining the amount of damage attributable), but, rather, via contributory negligence and s 137B of the CCA.

8       Discuss the principles enunciated by the High Court in Murphy v Overton Investments (2004) 216 CLR 388 in relation to the assessment of damages under the Australian Consumer Law for a breach of s 18.

8.1      Introduction

  • In Murphy v Overton, two central issues with regards to the assessment of damages for a breach of s 18 were enunciated:
    • First, when do damages begin to accrue for a breach (specifically with regards to potential contingencies) and,
    • Second, how should damages be assessed when there is a continuing relationship between the contractual parties.

8.2     When do damages begin to accrue?

  • In Murphy, an estimate as to future costs payable was a misrepresentation, since it failed to account for categories of future costs which were subsequently charged for.
    • Thus, from the outset, the representation hid a contingency.
    • The HC held that since damages under s 236 (then s 82 of the TPA) were compensatory, they could not be granted where the damage is potential
    • Thus, “until the contingency, which the misrepresentation hid, was first realized” the Murphey’s suffered no loss.
    • A loss may only be compensated for once it becomes an actual loss (when the contingency came to pass in 1997) rather than when the conduct occurs (when the lease was signed in 1992).
  • A similar decision was made in the following cases:
    • In Magman v Westpac, contingent damage was used to show that loss occurred when the loss was called upon, not when the agreement was made
    • In Karedis v Antoniou, the court held that a cause of action did not accrue at the date of the signing of the lease (much like in this case)
    • In Marks v GIO there was also held to be a contingency, since no actual loss was suffered until GIO started charging in breach of their representation (at 2.25%). However, here, no actual losses were suffered, and the loss remained a contingency loss, rather than actual, claimable loss

8.3      Assessment of damages for a continuing relationship

  • It was held in this case that the word “loss” should be defined broadly and is not limited to economic loss.
    • However, in this case, there were potential future losses to be incurred (the payment of dues into the future).
    • Thus, it was difficult for the court to quantify the damages payable
  • The court decided:
    • Where there is a continuing relationship, damages should be assessed to prevent the misleading or deceptive conduct from continuing into the future
    • Both losses on the capital and revenue accounts may be compensated for: a loss of capital or a loss of potential revenue, however, the court must be careful of double compensation.
    • “Loss or damage may be a loss of capital.  But there may also be a loss on the revenue account, which, unless some other remedy is granted which will prevent it continuing into the future, will or may continue into the future”
  • A loss on the revenue account may be distributed in a lump sum payment under s 236 (although, seeking an injunction against future breach might be more effective) but it is difficult to calculate the quantum of such a sum – “it is difficult and the result is imperfect”.
    • Particularly, other court orders issued under ss 237, 238 and 243 may modify the future amount payable, and may be more appropriate remedies

8.4      In this case

  • In this case, the HC held that the Murphys suffered loss because the financial burden they took on with the lease was misrepresented to them.
  • The HC took into account, when quantifying damages, which the Murphys believed the rates would increase into the future.  Thus, only unexpected increases were to be compensated for, but these were to be compensated for the life of the breach.
  • Thus, the court was required to hear submissions “necessary to estimate how long this larger financial burden would likely to be borne by the appellants.  This would […] require estimates of life expectancy” etc.

8.5      Conclusion

  • The court held in this case that
    • Damages begin to accrue at the moment that a contingency that was hidden by misleading/deceptive conduct comes to pass
    • Damages may be sought under s 236 for loss of future revenue, but this is not the most appropriate remedy (injunction is often more appropriate)
    • Where future damage is considered, the court must make estimates as to the amount of time and total quantum of the damage to be incurred, and compensate for that

9       Compare and contrast the contractual and tortious measures of damages with the assessment of damages under the Australian Consumer Law s 236.

9.1      Introduction

  • When causation, required under s 236 is proven, the plaintiff is entitled to damages.
    • Whilst the common law analogies of damages – namely, an analogy with expectation losses under contract and an analogy detrimental reliance damage under the tort of deceit – are useful, it was held the court is “not bound by analogies to the common law” since s 236 is a statutory remedy (Murphy v Overton).
    • S 236 does not award punitive damages, but, rather, only compensatory damages.  However, the quantum of these damages is argued over, especially when it comes to a continuing breach or loss of chance damages.  Here, it is useful (but not binding) to use the aforementioned common-law analogies.

9.2      The contract law analogy – expectation damages

  • Under contract law, sometimes expectation loss/loss of bargain damages are available.  They seek to compensate the plaintiff for what was likely to have happened had the breach not occurred.  In cases of misleading or deceptive conduct inducing a contractual relationship, the most common occurrence is that another contract would have been entered into conferring different rights to the plaintiff – the difference between the two is the amount compensated for.
    • However, there are some difficulties in applying this method damages, namely: proving that, had the misleading and deceptive conduct not occurred, that a different option would have been chosen; and quantifying the effect of the secondary option.

9.3     The tort analogy – deceit

  • Under tort law (specifically with regards to the tort of deceit), damages are available to a plaintiff to compensate for any detrimental reliance.
    • The object of these tortious damages is to put the plaintiff back in the position before the deceit occurred.  In applying this to a contract entered into because of deceit, if there is a duty of care (relevant?) and this has been breached, damages will be amounted to equal to the amount of loss incurred, excluding the “economic cost” (potential income difference) of the transaction (Gett v Tabett).
  • Thus, the tortious damage route will often give a lesser damage quantum than the contractual route if there has been a loss of chance.

9.4      The application of these analogies in s 236 damage claims

  • The court is not bound by common law damage analogies, but it often uses them in order to assist the court in quantifying damages.
    • The most common analogy used by the court is the tortious damage analogy, with damages amounting the quantifiable extent of their own detrimental reliance.
    • However, where there has been a loss of chance or loss of future revenue, this method, often, does not account for the full breadth of damages.
    • If the evidence showing future loss satisfies the court, damages may be granted to compensate for this in the manner of the contractual damages discussed above.  The following cases describe the burden of proof.
  • In Gates City Life, it was shown that the burden was to, firstly, prove reliance on the statement, and, secondly, to show what you would have (or wouldn’t have (Vigellis)) done had the misleading or deceptive conduct not occurred.
    • If the reliance, it is show, deprived the plaintiff of the opportunity to go into another contract, you can recover the loss (including loss of portential profit under the alternative contract).
    • The burden, though, is quite high: it must be shown that the alternative “could have and would have” occurred.  Thus, proof of the alternative’s consideration and probability must be tendered.
  • In Tapes TPD, misleading and deceptive statements indemnified an insurance provider from paying claims with regards to specific injuries.
    • Diminution damages (i.e. following the tortious analogy) would have been the difference between what premium he would have paid with and without the indemnification clauses.
    • Expectation damages (i.e. following the contractual analogy) would have provided the damages he would have received if the clauses were not included.
    • However, there was not sufficient evidence qualifying his purchase as based on the conduct, and it was impossible to quantify damages.
  • In Marks v GIO, a misleading representation stated that the company was not going to increase a loan.  This occurred (i.e. the loan was increased) in breach of their representation.
    • Whilst the representation was misleading, the other options available would not have provided better relief, thus contractually analogous damages were unavailable.
    • Here, it was shown that the loss of chance must not be hypothetical, but actual, specifiable and evidenced.

9.5     Conclusion

  • Whilst both the contractual and tortious analogies may assist the court in quantifying damages under s 236, they are not binding or limiting on the court, since a claim for damages under the section is statutory, not based on the common law, and should be read to its fullest extent.
  • The tortious analogy of diminution of value to the extent of detrimental reliance is often used and is easy to quantify.
  • Whilst the court has not shut out the contractual analogy of expectation damages, the burden on the plaintiff is high, and, thus, it is unlikely.

10       In what circumstances will the recovery of damages by a claimant be reduced by the operation of the Competition and Consumer Act and Australian Consumer Law (i.e. s 137B CCA and s 236 ACL)?

10.1      Introduction

  • If causation under s 236 of the ACL is satisfied, the plaintiff is entitled to compensation of the full extent of the damage caused by the misleading or deceptive conduct.
  • However, in certain circumstances, the amount of damages may be reduced if the plaintiff was contributory negligent, under s 137B of the CCA.

10.2      S 137B of the Competition and Consumer Act

  • The defendant may apply, where the plaintiff has been contributory negligent, for the amount of damages payable to be reduced.
  • However, the following must be satisfied:
    • The claim for damages (for economic loss or damage to property) made by the plaintiff must be under s 236 of the ACL (CCA s 137B(a))
    • For a breach of s 18 of the ACL (CCA s 137(b))
    • The defendant did not intend to mislead or deceive (i.e. there was an innocent misrepresentation) (CCA s 137(d))
    • And at least part of the damage was caused by the claimant’s failure to take reasonable care (CCA s 183(c)(i))
    • Then a the damages payable will be reduced “to the extent to which a court thinks just and equitable having regard to the claimant’s share in the responsibility for the loss or damage.” (CCA s 137)
  • It is important to note, however, that this section, reducing damages, does not apply where the misleading and deceptive conduct itself causes the plaintiff not to exercise reasonable care (Burke v LFOT)
  • Thus, this reduction will not occur in the following circumstances:
    • Where the damages are not for economic loss or property damage, for example, where the claim is for personal injury or death (it is likely that this was a policy decision by the legislature)
    • Where the s 236 damages claim is for a breach of a section other than s 18
  • Where “the other person did not intend to cause the loss or damage and did not fraudulently cause the loss or damage”
    • Thus, this section will only serve to protect defendants who breach s 18 innocently, that is, where there is an innocent misrepresentation rather then intentional deceit or fraud.
    • If it is shown that the defendant had knowledge of the essential matter which goes to make up the offence, whether or not the defendant knew that the action was a contravention of the act, the defendant will be liable for the full damages rather than damages reduced according to contributory negligence.
    • The defendant has the onus of disproving the assumption that the conduct was fraudulent.
  • This amount of damages claimable is reducible if it can be shown that the plaintiff did not take reasonable care for their own property.
    • This is, basically, proving negligence.
    • Whilst the duty of care is established, it is also quite broad, including a duty to mitigate damages (Henjo)
    • If it can be shown that the plaintiff carelessly or purposefully breached this duty
    • And this contributed to the damage
    • Then the amount of damages claimable (pending the satisfaction of the statutory requirements discussed above) are reducible by an amount referenceable to the “guilt”, or, rather, the percentage of damage attributable to each party

10.3      Conclusion

  • Thus, if and only if the requirements of s 137B of the CCA are fulfilled, damages claimable by the plaintiff are reduced to the extent of their contributory negligence.

11       In what circumstances will a claimant be statute barred from commencing proceedings to recover damages under s 236 of the ACL for a contravention of s.18?

11.1      Introduction

  • A claimant will be statute barred from recovering damages under s 236 of the Australian Consumer Law for defendant’s contravention of s 18 if the action is not brought in time.
  • Specifically, ss 236(2) states:
    • An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
    • Thus, if the action is brought outside of this time frame, it will be statute barred.
  • However, the wording of the statute specifically does not begin the countdown at the date of the contravention.  Further, it does not say 6 years from when the contract was entered into, or when the loan expired.  The statute states that the 6 year period begins on the day on which the cause of action that relates to the conduct accrued.
  • Thus, this is the central issue to be determined by the court: when does the accrual begin?

11.2      “the day the cause of action that relates to the conduct accrued”

  • In Hawkins v Clayton (affirmed by the HC in Wardley v WA), it was held that “the kind of economic loss which is sustained, and the time when it is first sustained depends upon the nature of the interest infringed, and, perhaps, the nature of interference to which it is subjected”.  Thus, it is not the date of breach, but the resultantly concluded date of first damage, where the statutory countdown begins.
  • In Magman International v Westpac
    • Facts
      • The bank recommended a foreign currency (chf) loan at a lower interest rate than an Australian currency loan, stating (misleadingly) that the currency risk was low enough that it was not necessary to hedge the loan.
      • Subsequently, the chf increased twofold against the Australian dollar, increasing the borrower’s liability (in Australian dollar terms) by two times.
      • However, it was more than 3 years (the then statutory period) since the loan had been entered into
    • The court held, unanimously, that the cause of action did not accrue on the date the loan was entered into, but, rather, at the date the loan facility expired, since until then the losses were uncertain.
    • Justice Baumont concluded that it is not clear that every cause of action would have been statute barred, and that the case could go for trial.
  • In Wardley v WA, the court held that the entry into an indemnity was not a loss, but an executor and contingent liability
    • As such, the cause of action was not accrued until the date that the contingency occurred
    • If a plaintiff was compelled to sue before the damage was certain, or actual rather than potential, they would fail, and it would be “unjust and unreasonable” to require this.
    • Per Murphy, loss is not singular, and may be accrued on a capital account or revenue account, at the one time or at different times. Although one claim for loss or damages may be statute barred, it does not follow that all claims will be statute barred. So, whilst s82(1) and s87 (1A) may prevent an applicant from suing for some loss or damage, an applicant may be able to sue for other damage, even though resulting from the same conduct. This is demonstrated by Murphy, where any losses suffered on the capital account would have been statute barred, as opposed to the claim which was run for damages on the revenue account.
  • In Karedis, proceedings began more than 3 years after the Antonious entered into the agreement to lease the premises. However, Burchett and Hill JJ reasoned that mere entry into the lease only produced a situation where there was potential to suffer a loss, and the loss occurred at the date where the loss was reasonably ascertainable.
  • Distinguishing between contingent and actual loss came to the fore in Marks v GIO whereby Gummow and Gaudron JJ held that the entry into a loan by Marks was a contingent loss, until GIO acted on their contractual obligations. The chain of causation was held to be broken as Marks was provided with the opportunity to avoid the loss without any damage caused,
  • The principle of distinguishing between actual loss and contingent loss was amplified in Murphy, where the High Court Court drew on Wardley to hold that loss was suffered by the Murphy’s when the contingency was fulfilled.
    • Although, Overton were only charging for limited outgoings when the lease was entered, the loss which the Murphy’s suffered by taking on those obligations could only be contingent as they relied on Overton acting on their contractual powers. Just as it decided to increase the outgoings, it may have decided to keep the maintenance rate.
    • Thus, mere entry into the 99yr lease agreement only caused actual loss at the time that Overton departed from what it represented to the Murphy’s. It should be noted that the only way the defence would have succeeded was where Overton was able to put into evidence that the Murphy’s suffered a loss at the time of entering the lease because they did not receive value for the consideration they paid, however no such evidence was furnished in relation to the loss being suffered on the date of entry into lease.
    • Thus, in light of Wardley and Murphy, it can be seen that mere entry into a contract does not amount to ‘loss or damage’ where the loss or damage is contingent on the occurrence of a future event which may or not occur. It seems that damage only becomes ‘actual’ when there is an adverse balance between consideration and value paid for benefit, if acquired by the plaintiff (per Murphy). Thus, noting that the limitation period is now 6 years to bring an action under the Act, if it could be established that some loss was suffered at the date of entry into lease, and that an applicant was acquiring something less than what he or she was paying for, and it has been 6 years since that time, then such a claimant will be statute barred in an application for s82 damages. It should be noted that the onus of establishing that the claim is statute barred is on the respondent (per Murphy).

11.3      Conclusion

  • From the above, where a claim is statute barred will turn on whether the loss is contingent or actual. Where the loss is actual, and it is 6 years from the date of the contingent loss being fulfilled by the contingency, then such a claim for loss will be met by a successful defence that the claim is statute barred by s82(1) unless the plaintiff can show that he or she was unable to bring the claim to the Court due to some mental disability/inability.

12       Discuss with reference to relevant case law and legislation the extent to which the remedies available to a successful claimant under the Competition and Consumer Act, other than damages, are more far reaching and more flexible than the remedies available to a successful claimant at common law or in equity. [NB the ACL is part of the Act].

12.1      Introduction

  • The remedies available under the TPA are quite unique.  Whilst s 236 damages have been compared with the damages available in contract and tort law, the depth of remedies available in this act is much broader.
  • This is particularly significant under the defendants that may be brought as jointly and severally liable to the action, under ss 87CB, 87CC and 87CD; the broad variety of potential remedies and orders available under ss 237 and 238; and the large group of people who have standing to apply for injunctions under s 232.

12.2      Ss 87CB, 87CC and 87CD

  • Ss 87CB, C and D apportion liability where there is a claim under s s237 for a breach of s 18 and there are concurrent wrongdoers.
  • The effectiveness of this apportionment is the low evidentiary burden required (it is easier to find a party liable under ss 87s than it is as a concurrent tortfeasor) and the fact that the defendants are now jointly and severally liable.
  • This section allows a claimant to bring an action against someone personally involved in the contravention, someone who would be protected in tort by the “veil of incorporation”.
  • Its effectiveness was shown in Henjo, where Henjo, the defendant, was found jointly liable alongside the director, Mr Saide.  Although the Henjo corporation was in poor liquidity, Mr Saide had enough assets to cover the damages, and the plaintiffs were able to receive their full compensation where otherwise they wouldn’t have.

12.3     Ss 237 and 238 – “the remedial smorgasbord”

  • These sections allow a wide variety of persons to claim – “a person who has suffered or is likely to suffer”, thus, it is not damage, but possible (or, rather, likely) damage which provides standing to sue here.
  • Further, the court has discretion to make “appropriate” orders against the person engaged of involved in the conduct.
    • This is a lot broader than the allowances in other areas of law.
    • Further, this type of order may be made alongside a s 232 injunction or a s236 damage claim, if the court finds it necessary.
    • Some orders that the court is able to make include:
      • The power to declare a contract void (which is useful in that it allows a party to avoid specific performance or damages payable for non-performance where there has been a breach or there might be damages in the future)
      • The power to vary contracts, including variation of rent clauses (although the court is reluctant to do so)
  • The court has recognized the flexibility of this provision, and has given it a wide interpretation.
    • In Illife, Mason P acknowledged this flexibility, granting a rescission order even though it would not be available in common law because it would be enforced against a third party of the contract, with whom the plaintiff did not have privity.  Thus, this section allows for the rescission or variation of contract orders against third parties, as long as they were somehow involved in the contravention (i.e. by virtue of s 87s (then, s 75B)).
    • Further, in Demagogue, although the purchasor’s failure to inspect and discover a defect in title was excluded in common law, here, it did not break the causal chain, and damages were awarded by these remedial provisions.
    • In Henjo, it was shown that these sections may be used to prevent future losses, where under s 236 and in the common law, damages may  only be sought after the damages occur (Demagogue, Gummow J at 620).
    • Variation of contract is almost exclusive to these provisions, since they cannot be varied under the general law except in terms of rectification.  Here, variation may be sought (Munchies)

12.4      Injunctions (s 232)

  • In equity, courts have limited standing to persons with a proprietary right. Parish and Phelps are two cases that involve people without proprietary rights who have brought proceedings under s 232.
  • In Parish, Bowen CJ acknowledged that whilst injunctions have an equitable root, the balance of convenience in s 232 is not impinged by equity. Further, the damage that may be caused to the public interest was impossible to calculate, unlike the weighing up of two private interests in equity.  Thus, Bowen recognized the wording of the section as conferring the widest kind of jurisdiction of the court, not limited by equitable principles and the balance of convenience lies in the applicant’s favor, as the applicant aims to protect the public interest.
  • In Phelps, the respondent’s argued that the applicant was acting in his own favor, rather than in the public interest.  The court found that this was merely incidental to the public interest.

12.5      Conclusion

  • The broad approach of the court makes a submission under the ACL remedially favorable, since “conduct” is easier to prove than “representation”, wide standing, the ability to involve many defendants and a wide variety of available court orders are available.
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oatsandsugar

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LLM candidate at Cornell Tech. Consultant for King & Wood Mallesons and Project Evangelist for Legalese.

9 responses to Essay Plans on Misleading and Deceptive Conduct

  1. 

    hi yoshi
    thank you for your help with your real prop notes last semester. greatly appreciated. do you have anything on commercial law you are able to share?
    lisa

    • 

      I have the essays I put up and a few notes I did, didn’t do too much work for that subject.

      I’ll be writing an article on Commercial in the next week or so.

      Cheers

  2. 

    hi yoshi
    thanks for dropbox folder for commercial. you’re a legend.
    have a good week.
    lisa

    • 

      Hi Yoshi

      Do you mind showing me where your drop box folder for commercial is? We are doing it Block Mode over Summer. It looks as though it going to be a huge amount to cover in a very short time. Many thanks Deborah

    • 

      It should be in my “archive” folder in the dropbox.

      Do you have access?

  3. 

    Job well done, seriously a massive help- more so than the text books and lectures. Very well laid out and easy to follow…thought I was going to fail but think I now have a chance!

  4. 

    hey yochs – you can post up we got questions 3 and 10 in our final except 3 was promise, predictions and opinions.
    plus the problem question was a basic murphy v overton scenario.

    see you next year my dear
    thanks for all your help Cat 🙂 🙂

  5. 

    Hey Yoshi,
    was wondering if you could add me to your dropbox for commercial
    email is gbchampions@hotmail.com
    thanks heaps dude

  6. 

    Hi Jochi, I love your law notes, comments, case notes, etc., it has been a great help!

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