Misleading Conduct

Note: on 1 January 2011 the Trade Practices Act was renamed the 'Competition and Consumer Act 2011' and the full Australian Consumer Law took effect. This included the repeal of Part V of the TPA, including s 52 dealing with misleading and deceptive conduct. An equivalent provision is now contained in s 18 of the Australian Consumer Law (contained in Schedule 2 of the Competition and Consumer Act 2011). Although the substance of the provision is likely to be the same, the following text currently still refers to the old s 52 and, as such, should be treated with care - it will be updated shortly.

Until 1 January 2011 misleading and deceptive conduct occurring in trade or commerce was prohibited by s 52 of the Trade Practices Act 1974 (Cth). This was (much to the horror of many lawyers) repealed and re-introduced as s 18, Schedule 2 of the Competition and Consumer Act 2010 (referred to ass 18 of the Australian Consumer Law).

This provision prohibits a person, in trade or commerce, engaging in conduct that is 'misleading or deceptive or is likely to mislead or deceive'. The key 'trade or commerce' limitation excludes purely private sales but captures most commercial activity. Where a breach of section 18 is established a range of remedies are available including damages and contractual avoidance or variation.

In addition to s 18 there are other provisions which provide liability (including criminal liability) for certain forms of misleading conduct.

Detailed discussion forthcoming

Useful articles

Arlen Duke, Representations as to the Future under the Proposed Australian Consumer Law (2009) MULR 17