Australian consumer law

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Full Title Copyright Foreword Preface Publisher’s Note Table of Cases Table of Statutes Table of Contents Chapter 1: Introduction Introduction Overview Overview of the ACL What is the ACL? What does the ACL cover? What are the key changes that are made by the ACL? What are the objectives of the ACL? Why was the ACL introduced? The Crown, Crown immunity, derivative Crown immunity and liability of the Crown The Crown Crown immunity Derivative Crown immunity Section 2A of the CCA Section 2B of the CCA Section 2BA of the CCA Extraterritorial application of the ACL Section 5 of the CCA Extended application of the ACL Jurisdiction of the court Conferred jurisdiction Transfer of proceedings Application of the Criminal Code No ‘double dipping’ of liabilities Regulations Short theory questions Theory questions Further reading Chapter 2: Definitions and Key Concepts Introduction Overview Definition of consumer Section 3 of the ACL Acquiring goods or services as a consumer Exceptions to acquiring goods as a consumer Definitions of corporation, subsidy, holding and related bodies corporate Definition of a corporation Definition of a foreign corporation Definition of a trading corporation Definition of a financial corporation Definition of a subsidiary, holding and related body corporate The meaning of ‘in trade or commerce’ What provisions does ‘in trade or commerce’ apply to? What is ‘in trade or commerce’? Private sale of land or business Public statements, debates and general education Political statements and lobbying Employment contracts Internal communications Conduct to influence others The activities of the government Accessorial liability ‘Involved’ ‘Aided, abetted, counselled or procured’ the contravention ‘Induced’ the contravention ‘Knowingly concerned in’, or ‘a party to’, the contravention ‘Conspired with others’ to effect the contravention Attempt to contravene The elements of attempt to contravene Liability of corporate and non-corporate principals Section 139B of the CCA ‘On behalf of’ Not on a ‘frolic of their own’ Section 139C of the CCA Various other key definitions and concepts ‘Goods’ ‘Services’ ‘Severability’ ‘Supply’ ‘Manufacturer’ Short theory and problem questions Theory questions Hypothetical problem questions Further reading Chapter 3: Misleading or Deceptive Conduct (General Principles) Introduction Overview Section 18 of the ACL Overview Who is a person? Legal and natural person What is ‘in trade or commerce’? What is ‘engaging in conduct’? To do or refuse to do any act What is ‘misleading or deceptive conduct’? The overall impression is what matters Induces or is capable of inducing error Mere confusion or wonderment Doctrine of erroneous assumption Is there any difference between ‘misleading’ and ‘deceptive’? What is ‘likely to mislead or deceive’? No need to prove that a person was actually misled Who must be misled? Section 18 is not limited to consumers The relevant members of the public must be identified Lack of reasonable care General principles of misleading or deceptive conduct Conduct must be viewed as a whole Multiple meanings Intent (and honesty) Spoken words Literal truths Half-truths Silence Future conduct (predictions, forecasts or opinions) Failure to make proper inquiries Failure to accommodate subsequent changes and the transitory effect Passing on information Disclaimers and exclusion clauses Misleading conduct in relation to professional advice Misleading conduct in without prejudice negotiations Misleading conduct and legal professional privilege Exemptions for information providers Section 19 of the ACL Remedies and enforcement powers Summary of available remedies and enforcement powers Short theory and problem questions Theory questions Hypothetical problem question Further reading Chapter 4: Misleading or Deceptive Conduct and Advertising Introduction Overview General principles of misleading conduct in advertising Misleading advertisements are captured under s 18 of the ACL Puffery What is puffery? Can puffery be misleading? Advertising and small print The requirement of sufficient prominence Advertising and asterisk The requirement of sufficient prominence Advertising and different communication mediums Different mediums make a difference Advertising and packaging Packaging can be misleading in many ways Advertising and labelling A lack of proper labelling may be misleading Character advertising Creating the wrong impression Comparative advertising A comparison in advertising must be accurate Disparaging advertising Inaccurate disparaging advertising may be misleading Parody advertising Inaccurate parody advertising may be misleading Trading names and business names No monopoly rights on trading or business names First to enter the market A second person to enter the market does not necessarily mislead Two Price Advertising Was/now pricing Environmental claims Environmental claims must be accurate Remedies and enforcement powers Summary of available remedies and enforcement powers Short theory and problem questions Theory questions Hypothetical problem question Further reading Chapter 5: Misleading or Deceptive Conduct and Other Areas of Law Introduction Overview The tort of passing off What is the tort of passing off? The elements of passing off Passing off v s 18 of the ACL Tort of deceit What is the tort of deceit? The elements of the tort of deceit Remedies available for the tort of deceit Tort of deceit v s 18 of the ACL Negligent misstatements under tort law An actionable misrepresentation under tort law Remedies available for negligent misstatements under tort law Negligent misstatements under tort law v s 18 of the ACL Misrepresentations under contract law An actionable misrepresentation under contract law The elements of misrepresentations in contract law Types of misrepresentations under contract law Remedies available for misrepresentations under contract law Misrepresentations under contract law v s 18 of the ACL Corporations Act 2001 (Cth) Overview Section 728 of the CA Section 1041H of the CA Remedies under the CA Some differences between s 1041H and s 728 of the CA Australian Securities and Investments Commission Act 2001 (Cth) Section 12DA of the ASIC Act Remedies under the ASIC Act Some differences between s 12DA of the ASIC Act and s 728 of the CA Some differences between s 12DA of the ASIC Act and s 1041H of the CA Delegation Short theory and problem questions Theory questions Hypothetical problem question Further reading Chapter 6: Unconscionable Conduct Introduction Overview Background to legislative unconscionable conduct Background to former TPA provisions Background to ACL ASIC Act Contracts Review Act 1980 (NSW) National Credit Code Unconscionable conduct within the meaning of the unwritten law Section 20 of the ACL What is the meaning of ‘the unwritten law from time to time’? Definition of unconscionable conduct in the unwritten law Elements of unconscionable conduct in the unwritten law Is there a difference between ‘unconscientious’ and ‘unconscionable’ conduct? Unconscionable conduct in connection with goods or services Section 21 of the ACL Unconscionable conduct under s 21 of the ACL Matters that court may have regard to for the purposes of s 21 Section 22 of the ACL Some examples of unconscionable conduct Unconscionable conduct with businesses Unconscionable conduct with consumers Remedies and enforcement powers Remedies (and enforcement powers) available for contraventions of s 20 or s 21 of the ACL Short theory and problem questions Theory questions Hypothetical problem question Further reading Chapter 7: Unfair Contract Terms Introduction Overview Background to UCT Overview of national regime History of the national regime Why introduce a national regime? How useful are the Victorian and United Kingdom decisions? The operative UCT provision Section 23(1) and (2) of the ACL What is a ‘consumer contract’? Section 23(3) of the ACL What is a ‘standard form contract’? Section 27 of the ACL What is an ‘unfair term’? Section 24(1) and (4) of the ACL Three additional considerations regarding ‘unfair’ terms Section 24(2) and (3) of the ACL Examples of terms that may be unfair Section 25 of the ACL United Kingdom examples of terms that may be unfair Contractual terms that are exempted Section 26 of the ACL Terms that define the main subject matter Terms that set the up-front price What is the up-front price? Terms expressly permitted as a matter of law Contracts that are exempted Section 28 of the ACL Some examples of UCT cases under the ACL Remedies Availability of remedies Public remedies Private remedies Short theory and problem questions Theory questions Hypothetical problem question Further reading Chapter 8: Specific False or Misleading Representations Introduction Overview Differences between ss 18 and 29 of the ACL Section 18 v s 29 False or misleading representations about goods or services Section 29 of the ACL Key terms of false or misleading representations Particular standard, quality, value, grade, composition, style, model, history, or use of goods (s 29(1)(a)) ‘Particular standard, quality, value, grade’ of services (s 29(1)(b)) ‘New’ goods (s 29(1)(c)) ‘Particular person has agreed to acquire goods or services’ (s 29(1)(d)) ‘Purported testimonials’ (s 29(1)(e)) ‘Concerning testimonials or purported testimonials’ (s 29(1)(f)) ‘Sponsorship, approval, performance characteristics, etc’ (s 29(1)(g)) ‘Sponsorship, approval or affiliation of persons’ (s 29(1)(h)) ‘Price’ of goods or services (s 29(1)(i)) ‘Repairs and spare parts’ of goods (s 29(1)(j)) ‘Place of origin’ (s 29(1)(k)) ‘Need’ for any goods or services (s 29(1)(l)) ‘Exclusion’ of any consumer guarantee, etc (s 29(1)(m)) Extended warranties (s 29(1)(n)) False or misleading representations about sale etc of land Section 30 of the ACL Misleading conduct relating to employment Section 31 of the ACL Misleading conduct as to the nature etc of goods Section 33 of the ACL Misleading conduct as to the nature etc of services Section 34 of the ACL Misleading representations about certain business activities (and activities conducted from home) Section 37 of the ACL Exemption for information providers Section 38 of the ACL Remedies and enforcement powers Summary of available remedies and enforcement powers Criminal Remedies Short theory and problem questions Theory questions Hypothetical problem question Further reading Chapter 9: Specific Unfair Practices Introduction Overview Offering rebates, gifts, prizes, etc Section 32 of the ACL An example of a contravention An example of a non-contravention Bait advertising What is bait advertising? Section 35 of the ACL Court Enforceable Undertaking from Harvey Norman Holdings Limited dated 9 August 2004 (D04/38052) Wrongly accepting payments What is wrongly accepting payment? Section 36 of the ACL Unsolicited credit and debit cards What are unsolicited credit and debit cards? Section 39 of the ACL Unsolicited goods or services What are unsolicited goods or services? Section 40 of the ACL Liability of recipient (and ownership rights) for unsolicited goods Section 41 of the ACL Liability of recipient for unsolicited services Section 42 of the ACL Unauthorised entries or advertisements What are unauthorised entries or advertisements? Section 43 of the ACL Pyramid selling What is pyramid selling? Section 44 of the ACL Meaning of ‘scheme’ Section 45 of the ACL Meaning of ‘substantially induced’ Meaning of ‘in relation to’ Section 46 of the ACL Multiple pricing What is multiple pricing? Section 47 of the ACL Component pricing What is component pricing? Section 48 of the ACL Referral selling What is referral selling? Section 49 of the ACL Harassment and coercion What is harassment and coercion? Section 50 of the ACL The leading decision on undue harassment and coercion Remedies and enforcement powers Summary of available remedies and enforcement powers Criminal remedies Short Theory and Problem Questions Theory questions Hypothetical problem questions Further reading Chapter 10: Consumer Guarantees Introduction Overview Consumer guarantees Background to consumer guarantees Why were the implied conditions and warranties in the former TPA (and fair trading legislation) replaced? Some key differences between implied conditions and warranties in former Pt V Div 2 of the TPA and consumer guarantees Implied conditions and warranties in sale of goods legislation Some key differences between implied conditions and warranties in sale of goods legislations and consumer guarantees Consumer guarantees in relation to goods Introduction Section 51 of the ACL Section 52 of the ACL Section 53 of the ACL Section 54 of the ACL Section 55 of the ACL Section 56 of the ACL Section 57 of the ACL Section 58 of the ACL Section 59 of the ACL Consumer guarantees in relation to supply of services Overview Section 60 of the ACL Section 61 of the ACL Section 62 of the ACL Section 63 of the ACL Guarantees not to be excluded, etc by contract Section 64 of the ACL Section 64A of the ACL Miscellaneous Section 65 of the ACL Section 66 of the ACL Section 67 of the ACL Section 68 of the ACL Proof of transactions and itemised bill Section 100 of the ACL Section 101 of the ACL Section 102 of the ACL Section 103 of the ACL Short theory and problem questions Theory questions Hypothetical problem question Further reading Chapter 11: Manufacturers’ Liability Introduction Overview Background to manufacturers’ liability From Donoghue v Stevenson to Ch 3 Pt 3-5 of the ACL Manufacturers’ liability v consumer safety? Relevant definitions and key concepts Outline ‘Defective goods action’ Unidentified manufacturer Safety defect Some examples of non-defective goods Liability for loss or damage suffered by an injured individual Section 138 of the ACL Liability for loss or damage suffered by a person other than an injured individual Section 139 of the ACL Liability for loss or damage suffered by a person if other goods are destroyed or damaged Section 140 of the ACL Liability for loss or damage suffered by a person if land, buildings or fixtures are destroyed or damaged Section 141 of the ACL Defences to defective goods actions Section 142 of the ACL No safety defect exists at time of supply Compliance with a mandatory standard State of scientific or technical knowledge Good was comprised in another good Time for commencing defective goods actions Section 143 of the ACL Liability joint and several Section 144 of the ACL Survival of actions Section 145 of the ACL No defective goods action where workers’ compensation law etc applies Section 146 of the ACL Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard Section 148 of the ACL Representative actions by the regulator Section 149 of the ACL No ‘contracting out’ Section 150 of the ACL Available remedies Compensation Contributory negligence Offence Short theory and problem questions Theory questions Hypothetical problem question Further reading Chapter 12: Enforcement Powers Introduction Overview The ACCC and other ACL regulators ACCC’s role and objectives ACCC’s approach to enforcement ACCC’s enforcement priorities ACCC’s compliance ‘pyramid’ ACCC’s obligations to act as a model litigant ‘One law, multiple regulators’ model Guiding principles of the ACL regulators Enforceable undertakings Background Section 218 of the ACL Substantiation notices Background Some differences between SNs and notices issued under s 155 of the CCA Section 219 of the ACL Section 220 of the ACL Section 221 of the ACL Section 222 of the ACL Public warning notices Background Section 223 of the ACL Infringement notices Background Section 134 of the CCA Section 134A of the CCA Section 134B of the CCA Section 134C of the CCA Section 134D of the CCA Section 134E of the CCA Section 134F of the CCA Section 134G of the CCA Section 155 notices Background Section 155 of the CCA Section 155AAA of the CCA Short theory and problem questions Theory questions Hypothetical problem question Further reading Chapter 13: Remedies (Private) Introduction Overview Injunctions Background Private parties v regulators Equity law principles Section 232 of the ACL Statutory principles Section 233 of the ACL Section 234 of the ACL Section 235 of the ACL Damages Background Common law principles Section 236 of the ACL Statutory principles Limitation period Damages v compensation orders Compensation orders Section 237 of the ACL Section 238 of the ACL Orders for non-party consumers Section 239 of the ACL Section 240 of the ACL Section 241 of the ACL Miscellaneous Section 242 of the ACL Section 243 of the ACL Section 244 of the ACL Section 245 of the ACL Declarations Background Section 163A of the CCA Section 250 of the ACL Section 21 of the FCA Short theory and problem questions Theory questions Hypothetical problem question Further reading Chapter 14: Remedies (Public) Introduction Overview Pecuniary penalties Background Section 224 of the ACL Assessment of pecuniary penalty Some examples of pecuniary penalties Section 225 of the ACL Section 226 of the ACL Section 227 of the ACL Section 228 of the ACL Indemnification of officers Background Section 229 of the ACL Section 230 of the ACL Where is s 231 of the ACL? Non-punitive orders Section 246 of the ACL Adverse publicity orders Section 247 of the ACL Disqualification orders Background Section 248 of the ACL General principles Period of time disqualified The meaning of ‘managing corporations’ Summary of cases on disqualification orders under the ACL Why was s 249 inserted into the ACL? Section 249 of the ACL Mareva orders Background Common law principles Section 137F of the CCA Section 12GN of the ASIC Act and s 1323 of the CA Findings in proceedings to be evidence Section 137H of the CCA Short theory and problem questions Theory questions Hypothetical problem question Further reading Chapter 15: Consumer Guarantees Remedies Introduction Overview Background to remedies relating to consumer guarantees Action against the supplier of goods Section 259 of the ACL Section 260 of the ACL Section 261 of the ACL Section 262 of the ACL Section 263 of the ACL Section 264 of the ACL Section 265 of the ACL Section 266 of the ACL Remedies for supply of services Section 267 of the ACL Section 268 of the ACL Section 269 of the ACL Section 270 of the ACL Action for damages against manufacturers of goods Introduction Section 271 of the ACL Section 272 of the ACL Section 273 of the ACL Miscellaneous Section 274 of the ACL Section 275 of the ACL Section 276 of the ACL Section 276A of the ACL Section 277 of the ACL Short theory and problem questions Theory questions Hypothetical problem question Further reading Index