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CONSUMER PROTECTION: Misleading or Deceptive Conduct and Specific False or…

- - - - false representation that it is safe
    - - false representation of history
    - - false representation of history
  - - - didn't include booking fees in price
  - - - Impressions of health, actually full of sugar
  - - - No remedy if something is broken
  - - - claimed made in Australia but actually made in China
  - - - Injunction
      - Damages
      - Other orders
    - - Corporation - the greater of 10 million or 3x value of benefit (e.g. profit), or 10% annual turnover, per breach
- - - - Not including private on off transactions, political statements or private statements
        
        O'Brien v Smolonogov
  - - - Hyder v McGrath
  - - - Making a statement, claim or promise (orally or writing)
      - Performing an act or refusing to
        
        Silence was a breach
        
        Henjo v Collins Marrickville
      - Includes pictures
  - - - Capable of leading a person into error
      - Objective test
        
        Directed at specific individuals, consider:
        
        Conduct as a whole
        
        Nature of the parties and transactions
        
        Butcher v Lachlan
        
        Directed at public at large consider:
        
        Identify target audience
        
        Conduct as a whole and any dominant message
        
        what was the dominant message to ordinary and reasonable members of the target audience
        
        ACCC v Coles
    - - Puffery/sales puff are exaggerated, fanciful or grandiose claims - reasonable person would not take seriously and be misled
      - ACCC v TPG (2013)
        
        Fine print not dominant, first time users with little experience, perfunctory attention (ads briefly intrude on consciousness)
      - ACCC v TPG (2020)
        
        No dominant message, reasonable consumers would not be mislead
      - ACCC v Coles
        
        Shopping isn't an analytical process, shouldn't be expected to read fine print, shopping for many items so not focusing on one item
    - - Business takes action against competitor to prevent dishonest or unfair advantage
      - Similar products
        
        Parkdale v Puxu
        
        Expensive item, consumers should take longer to inspect
        
        McWilliams Wines v McDonald's Systems
        
        Not the same product, no similar aspects such as colour or logo
        
        Apand v Kettle Chip
        
        Kettle had a secondary meaning
    - - Protects parties who are induced to enter into contract due to misleading or deceptive conduct during pre-contractural negotiations
      - Byers v Doretea
        
        Breached
      - Hyder v Mcgrath
        
        not breached
  - - - Brighton v Multiplex
    - - Butcher v Lachlan Elder Real Estate
  - - - s 232 - order to refrain from conduct
    - - s 236 (1) - recover loss or damage caused by misleading conduct
        
        Damages must flow directly from reliance on conduct
        
        Wakefield Trucks v Lach Transport