Misleading and Deceptive Conduct Cases

ACL, s 18 - Prohibition on Misleading Conduct

To discourage conduct in trade / commerce that deceives others and which causes loss to those affected the law has prohibited conduct that is misleading and/or deceptive (or that is likely to be so). The essential provision is section 18 to Schedule 2 to the Competition and Consumer Act 2010 (which replaces the former s 52 of the Trade Practices Act).

Whilst the misleading and deceptive conduct provisions apply to a wide range of scenarios there are limitations. One such limitation is that information providers are in some cases protected from the operation of this provision. Moreover, this legislation does not apply in respect of financial services.

Generally, those who suffer loss because of someone else's misleading and deceptive conduct may be entitled to damages under s 236. There are also other remedies such as: injunctions and other orders as the Court thinks fit.

Examples of Potentially Misleading and Deceptive Conduct

  1. Where business A says something about business B in trade or commerce, whether on its website (or otherwise), that is misleading / deceptive;
  2. Where newspaper/radio/television C then says something about business A in trade or commerce, whether on its website (or otherwise), that may be misleading or deceptive (but note the effect of the "safe harbour" defences);
  3. Where an employer during the course of negotiations for employment (or the variation of the employment contract) makes prohibited representations;
  4. Where one business D tries to trade under a name that is the same as (or similar to) another business E such as occured in the Taco Bell case;
  5. Where a business F advertises on Google Adwords in a manner that suggests there is a connection with business G when no such connection exists.
  6. Erroneous statements in tender documents stating there to be no plans of any outlet pipes when such plans were found to exist in principal's possession. 

Our Commercial Litigation Lawyers Can Help with:

  • What conduct is captured by this legislation
  • How the conduct of directors, servants and agents can affect the liability of a corporation
  • What elements are required to constitute a cause of action in respect of misleading and deceptive conduct including loss/damage
  • How the law treats innocent misrepresentations and representations about the future
  • If damages can be reduced for contributory fault or otherwise because it is an apportionable claim
  • The effect of representations about the future
  • Whether you might be entitled to obtain an injunction to restrain the publication of a representation that is prohibited
  • The types of damages you may be entitled to in respect of misleading and deceptive conduct.

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