The law of misleading or deceptive conduct

A High Percentage Of Commercial Disputes Include Claims Based On The Prohibition Of Misleading Or Deceptive Conduct. It Is A Versatile Legal Claim And, As A Result, There Is A Large Body Of Case Law Dealing With The Prohibition's Operation In A Wide Range Of Apparently Disparate Factual And Legal Settings. Practitioners Need A Detailed And Specific Knowledge Of This Provision. This Book Focuses Exclusively On Examining The Scope Of The Prohibition, The Consequences Of Its Breach, The Applicability Of Defences And The Availability Of Remedies. This Singular Focus Allows For A Detailed Commentary On The Legislation And Lucid Explanations Of The Enormous Volume Of Case Law. Since The Third Edition Of The Law Of Misleading Or Deceptive Conduct Was Published, The Various Statutory Prohibitions Of Misleading Or Deceptive Conduct, And The Remedies And Machinery Provisions That Supplement And Support Them, Have Continued To Generate A Torrent Of Case Law. In Excess Of 1,000 Cases Have Been Reviewed In The Preparation Of This Edition. Virtually Every Paragraph Has Been Amended To Take Account Of The New Decisions And Their Implications. No Other Text Provides An In Depth Treatment Of The Law Concerning Claims Based On S 18 Of The Australian Consumer Law And Its Equivalents. This Book Is Indispensable For The Commercial And Corporate Practitioner And Allows The Student To Delve Deeper Into This Area.--publisher's Website. Part A. The Prohibition Of Misleading Or Deceptive Conduct : -- 1. The Prohibitions Identified, Exempt Persons And Territorial Scope -- 2. Conduct In Trade Or Commerce -- 3. Misleading Or Deceptive: General Issues -- 4. Express Statements -- 5. Non-disclosure -- 6. Implying Commercial Association -- Part B. The Legal Consequences Of Misleading Or Deceptive Conduct : -- 7. Remedies For Misleading Or Deceptive Conduct: General Issues -- 8. Persons Liable For The Consequences Of Misleading Or Deceptive Conduct -- 9. Preventative Corrective And Declaratory Orders -- 10. Loss Or Damage 'by' Misleading Or Deceptive Conduct: Causation -- 11. Compensatory Orders -- 12. Limitation Periods. Colin Lockhart. Previous Edition : Sydney : Lexisnexis Butterworths, 2011. Includes Index. Cover Page Full Title Copyright Author’s Note Preface Table of Cases Table of Statutes Table of Contents PART A: The Prohibition of Misleading or Deceptive Conduct Chapter 1 The Prohibitions Identified, Exempt Persons and Territorial Scope 1 Introduction 2 The various prohibitions TPA, s 52; ACL (Cth), s 18 ASIC Act, s 12DA State and territory Fair Trading Acts and ACL 3 Amenability of the crown (A) — TPA, ASIC Act, ACL (Cth) Crown in right of the Commonwealth Crown in right of a state or territory (B) — Fair Trading Acts; ACL of the states and territories Crown in right of the Commonwealth Crown in right of the enacting state or territory State or territory Crown in right of a non-enacting state or territory (C) — Foreign States 4 The ‘information provider’s’ immunity The terms of the immunity ‘Prescribed information provider’/’information provider’ ‘Prescribed publication’ Excluded publications 5 Territorial limits on the prohibition The statutory framework: TPA, ASIC Act, ACL (Cth) The statutory framework: the FTAs; ACL of the states and territories ‘Carrying on business’ at a place: private international law ‘Carrying on business’ in Australia: Corporations Act ‘Carrying on business in Australia’: misleading conduct law ‘Ordinarily resident’ Where is conduct engaged in? Location of conduct: private international law Location of conduct: misleading conduct law The impact of a choice of foreign law: Australian courts Choice of law and misleading conduct claims in foreign courts 6 Advocate and witness immunities Chapter 2 ‘Conduct in Trade or Commerce’ 1 Introduction 2 ‘Conduct’ The statutory framework Is a representation required? The ‘representation’ requirement rejected Contractual warranties 3 ‘In trade or commerce’ The statutory framework The early case law Concrete Constructions v Nelson Private transactions or dealings Statements in public debate Professional conduct Conduct of religious, charitable and community organisations Conduct of company directors and officers Conduct in relation to employment Conduct towards public bodies Conduct of public bodies and officials Chapter 3 ‘Misleading or Deceptive’: General Issues 1 Introduction 2 The meaning of ‘misleading or deceptive or likely to mislead or deceive’ (A) — The key words ‘Misleading’ and ‘deceptive’ ‘Likely to mislead or deceive’ (B) — The relevance of confusion The prohibited effect contrasted with confusion Application of the distinction The separation of confusion and deception questioned The current law 3 Intention and fault (A) — Intention The general rule Exceptional cases Evidentiary significance of proof of intention (B) — Fault No necessity to prove fault The significance of proof of fault 4 Ascertainment of the impugned conduct’s effect: general guidelines (A) — Introduction ‘Characterisation’ (B) — The role of the impugned conduct’s context Internal context External context (C) — The alleged victim’s standard of skill and care The various views in the High Court The alleged victim’s degree of care in the lower courts Victim’s degree of care: the current law The erroneous assumptions doctrine: the early case law The current status of the erroneous assumptions doctrine 5 Proof of misleading or deceptive conduct (A) — Introduction The elements of breach The statutory presumption of breach (B) — The first element of breach: was the impugned conduct engaged in? Proof of conduct Admissibility of similar fact evidence: general principles Admissibility of similar fact evidence: relevant considerations Discretionary exclusion of similar fact evidence (C) — The second element of breach: what was the impugned conduct’s meaning? Proof of meaning Survey evidence Principles governing the conduct of surveys Survey evidence: procedural issues (D) — The third element of breach: was the impugned conduct misleading or deceptive? 121 ‘Misleading or deceptive’: an objective question Admissibility of evidence of actual deception Weight of evidence of actual deception Absence of evidence of actual deception Evidence of failure to mislead Chapter 4 Express Statements 1 Introduction 2 Statements of fact False statements Literally true statements having the proscribed effect Statements concerning matters of scientific controversy 3 Statements as to the origin of goods General The TPA and ACL exemption Misleading or deceptive statements of origin 4 Laudatory statements 5 Promises and predictions 140 (A) — Mere non-fulfilment not misleading or deceptive 140 (B) — Presently misleading promises and predictions 142 Statements of fact embedded in promises and predictions Establishing a lack of belief or grounds Contractual promises Contractual performance Failing to qualify a prediction (C) — The deeming of promises and predictions to be misleading The statutory provisions ‘Representation’ ‘Future matter’ ‘Reasonable grounds’ Pleading claims based on TPA, s 51A, ACL, s 4 Defending claims invoking TPA, s 51A, ACL, s 4 6 Statements of opinion General Statement of opinion or assertion of fact? Opinions apparently based on rational grounds Statements of law 7 Comparisons 8 Passing on information Chapter 5 Non-Disclosure 1 Introduction 2 The statutory framework 3 The general law analogy 4 Misleading or deceptive non-disclosure: the early case law Non-disclosure and TPA, s 52: initial rulings The relevance of the general law analogy questioned The general law’s residual influence 5 The current law: the ‘reasonable expectation of disclosure’ test (A) — The test articulated 186 (B) — A ‘reasonable expectation of disclosure’: relevant considerations The caveat emptor principle Relevant positive conduct Prior dealings The purpose of the impugned conduct The complexity of the relevant subject matter General law obligations of confidentiality The impugned actor’s knowledge and intention Chapter 6 Implying Commercial Association 1 Introduction General A non-literal message The two stages of the breach inquiry 2 The relevance of analogous intellectual property laws Passing off Registered trade marks 3 Reputation General The passing off analogy The concept of reputation Duration of reputation The effect of licensing of reputation Location of reputation Establishing spillover reputation Reputation in descriptive words When is a name descriptive? Reputation in packaging and shape Reputation in slogans Reputation in celebrity 4 Implying Commercial Association Range of misleading suggestions of commercial association by marketing symbols Suggesting association with public figures Admissible evidence Weight of evidence of the effect of the impugned symbol’s use A question of fact Resemblance to established indicia of identity Trade or business names Labels and packaging Features of shape Indicia of celebrity The need to consider context The target audience The manner of the impugned symbol’s use The defendant’s field of activity Descriptive use of symbols of identity Trading under one’s own name Disclaimers PART B: The Legal Consequences of Misleading or Deceptive Conduct Chapter 7 Remedies for Misleading or Deceptive Conduct: General Issues 1 Overview of remedies for misleading or deceptive conduct General Preventative or corrective orders Compensatory orders Breach of the prohibition as a defence or set-off 2 Jurisdiction Jurisdiction over TPA, ACL (Cth), ASIC Act claims based on misleading or deceptive conduct Jurisdiction over FTA, ACL (state and territory) claims based on misleading conduct Transfer of claims to other Australian courts: the statutory provisions Transfer of claims to other Australian courts: governing principles Service out of the jurisdiction: Federal Court Service out of the jurisdiction: state courts 3 Declining to exercise jurisdiction The inappropriate forum stay Arbitration clause encompassing a misleading conduct claim Defendant bankrupt, being wound up or under administration 4 Powers and functions of the Australian Competition and Consumer Commission The ACCC Investigative powers of the ACCC Enforcement powers of the ACCC Enforceable undertakings Chapter 8 Persons Liable for the Consequences of Misleading or Deceptive Conduct 1 Introduction 2 ‘Engaging in’ misleading or deceptive conduct The statutory provisions Residual operation of common law and other statutory rules Limits of the deeming provisions ‘Servant’ ‘Agent’ ‘On behalf of’ ‘Actual or apparent authority’ Intention 3 Persons ‘involved in’ misleading or deceptive conduct The statutory provisions The knowledge requirement The need to prove actual knowledge Involvement in conduct engaged in on behalf of another Parties to an involvement claim Pleading involvement 4 Assignees Chapter 9 Preventative, Corrective and Declaratory Orders 1 Introduction General 2 Preventative orders Sources of power The relevance of the equitable analogy Range of parties Likelihood of future breach The plaintiff ’s conduct Territorial scope The public interest The ‘appropriate’ form of orders Consent injunctions Mandatory preventative orders Compliance programs Interlocutory injunctions: general principles Interlocutory injunctions: ‘prima facie case’/‘serious question to be tried’ Interlocutory injunctions: the balance of convenience Restraining conduct not prohibited by the Acts Interlocutory orders prohibiting the exercise of secured creditors’ rights Interlocutory restraints on the disposal of assets 3 Corrective orders Corrective advertising Other corrective orders 4 Declarations Section 163A declarations Declarations of right: sources of power Declarations of right: governing principles Declarations by consent and default Standing Chapter 10 Loss or Damage ‘by’ Misleading or Deceptive Conduct: Causation 1 Introduction General The legal concept of causation Causation in deceit and negligent misstatement General principles of TPA, ACL causation Causation and reliance The two limbs of causation in misleading conduct claims 2 Reliance Forms of reliance Third parties to conduct or deception The need to prove actual reliance Multiple inducements The alleged victim’s degree of care Exclusion clauses and disclaimers Evidence suggesting no actual reliance 3 Loss resulting from reliance General Acts of the plaintiff subsequent to reliance Forms of mitigation Acts of third parties subsequent to the plaintiff ’s act of reliance Non-volitional events subsequent to the plaintiff ’s reliance Chapter 11 Compensatory Orders 1 Introduction The statutory provisions Assignment of claims for compensation based on breach of the prohibition Survival of claims for compensation based on breach of the prohibition Compensation for loss caused by conduct occurring outside Australia 2 ‘Loss or damage’ The concept of ‘loss or damage’ Loss or damage by positive acts of reliance Loss of opportunity 3 ‘The amount of loss or damage’ A general measure? Remoteness Hypothetical and future acts or events Accounting for hypothetical detrimental acts of the plaintiff Capital loss Trading losses Wasted expenditure Lost income or benefits Damage to commercial reputation Non-pecuniary damage Interest as a component of damages Interest for late payment of damages 4 Orders to prevent or reduce loss or damage The statutory provisions TPA, s 82/ACL, s 236 and TPA, s 87/ACL, ss 237 and 238 orders compared Avoidance orders: restitution and fairness Avoidance orders: relevance of the plaintiff ’s conduct TPA/ACL avoidance orders and rescission at general law distinguished Refusing to enforce, or varying contracts Monetary orders Coercive orders 5 Apportionment between persons concurrently liable Concurrent liability for loss caused by misleading conduct Proportionate liability to victim Cross-claims between persons concurrently liable Contribution between persons concurrently liable Chapter 12 Limitation Periods 1 Introduction The statutory provisions Applicability of principles of limitations of general law causes of action 2 Date of accrual of cause of action Accrual of causes of action for loss already suffered Accrual of causes of action for prospective loss When is loss or damage suffered? 3 Procedural issues Summary determination of limitation questions Adding new causes of action by amendment Addition of new parties by amendment 4 The defendant’s conduct Waiver Estoppel Fraudulent concealment Index