Laws203 week 6 PDF

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SEMESTER TWO, 2019, LAWS203 LECTURE SIX • s29 ACL: SPECIFIC FALSE & MISLEADING REPRESENTATIONS • COMPARISON OF s18 & s29 ACL s29 ACL • A PERSON MUST NOT, IN TRADE or COMMERCE, • in CONNECTION WITH THE SUPPLY or POSSIBLE SUPPLY, of GOODS or SERVICES, • or IN CONNECTION WITH THE PROMOTION BY ANY MEANS, of THE SUPPLY or USE of GOODS or SERVICES, • MAKE A FALSE or MISLEADING REPRESENTATION ABOUT… COMPARISON OF s29 & s18 • s29 : AN EXHAUSTIVE SPECIFIC LIST • s18 : A GENERAL PROVISION • s29: POSSIBLE SUPPLY OF GOODS & SERVICES • s18: IN TRADE & COMMERCE • s29: MAKING REPRESENTATIONS • s18: ENGAGING IN CONDUCT • s29: CIVIL & CRIMINAL: • BALANCE OF PROBS & BEYOND REASON. DOUBT • s18: CIVIL: ON THE BALANCE OF PROBABILITIES • DIFFERENT REMEDIES IN s18 & s29 ACCC V DUKEMASTER PTY LTD 2009 FCA 682 s29 REPRESENTATIONS s29 ACL targets 14 DIFFERENT TYPES of false & misleading representations about goods & services: • quality/standard/new / • a particular person endorsed / bought / gave a testimonial / sponsored / • price/availability / repair/ place of origin / need for goods or services / guarantee / warranty.

s29 • • • • • •

COMMON ELEMENTS OF EACH SUBSECTION: MAKING a REPRESENTATION, express (this watch is antique) or implied (putting the watch in an antique shop) FALSE, MISLEADING, in CONNECTION with & in TRADE & COMMERCE PECUNIARY PENALTY for breach of any subsection

s29 FALSE REPRESENTATIONS STATEMENT OF FACT:WRITTEN, SPOKEN or VISUAL • FALSE = ‘contrary to fact’: RILEY MCKAY v BANNERMAN (1977) 15 ALR 561 INTENTION is not required: GIVEN v CV HOLLAND 15 ALR 439 ‘misleading’  ‘overall impression’ (is likely to mislead the consumer): PARKDALE CUSTOM BUILT FURNITURE v PUXU (1982) 42 ALR 1 ‘overall impression’  TACO CO OF AUSTRALIA v TACO BELL PTY LTD (1982) 42 ALR 177 s 29 ‘FALSE = ‘MISLEADING’ , - no difference ACCC v DUKEMASTER 2009 (FCA) 682 Owner of a shopping center increased the price dramatically and gave them a short time. Knew that they did not the speak the language. ‘In connection with’ – not defined in the ACL. Company involved in the supply of goods and services ACCC v WOOLWORTHS  wide meaning = ‘relates to’.

s29: ‘in connection with’ & ‘In trade or commerce’ ‘IN CONNECTION WITH’ • BERRY v FCT (1953) 89 CLR 653 ‘requiring a substantial relation, practical business sense’. • OUR TOWN FM v AUSTRALIAN BROADCASTING TRIBUNAL (1987) 77 ALR 577: • Wide meaning: ‘having to do with’ ‘IN TRADE OR COMMERCE’ same as conduct • CONCRETE CONSTRUCTIONS v NELSON (1990) 92 ALR 193 pg57: restricted & narrow meaning... concerned with the conduct of a corporation towards persons Targets in s29(1)(a) s29(1)(a) :false or misleading representation goods are of a particular standard, quality, value, grade, composition, style, model, or have a particular previous history or use. ‘particular’ GARDAM v GEORGE WILLS (1988) 82 ALR 415 pg379 ‘broad meaning’ ‘standard’ DUCRET v CHAUDHARY’S ORIENTAL CARPET PALACE (1987) 76 ALR 1832 ‘narrow interpretation’ ‘quality’ ACCC v LUV-A-DUCK (2013) pg361 FCA 751 ‘grade’ Grown and grain fed in the wheatlands, range read in and grain fed however the ducks were in a shed. ‘composition’  components ACCC v CADBURY SCHWEPPES (2004) 61 IPR 270 No bananas or mango in the juice Apple and kiwi juice with a picture- no kiwi

‘STYLE’: R v AUSTRALIAN INDUSTRIAL COURT, EX PARTE CLM HOLDINGS , (1977) 13 ALR 273 • ‘MODEL’: RANSLEY v SPARE PARTS & RECONDITIONING (1975) ATPR 40-055 • HISTORY & PREVIOUS USE: • HOLLIS v PH & D STEPHENS INVESTMENTS (1985) 8 FCR 576. ‘...a relation of incidents’ • KORCZYNSKI v WES LOFTS (1985) 62 ALR 225 – made in Australia but was not, only repackaged, refered to as the history of the goods ‘HISTORY’ & ‘PARTICULAR QUALITY’ • EVA v SOUTHERN MOTORS BOX HILL (1977) 30 FLR 213 pg 386 – choice of whether you use or consider it under history or s29(1)(b) SERVICES STANDARD: • ACCC v ALLERGY PATHWAY PTY LTD (2009) FCA 960 – pg 387 – cure ashma under the tenants of the section. s29(1)(c) – representation that goods are new when they are not new NEW GOODS: • HOLLIS v ABE COPIERS (1979) 41 FLR 141 ; - knew does not have a fixed meaning, instead new must be considered in context. New could mean second hand, eg not excessively used • ANDREWS BROS v SINGER CARS (1934) 1 KB 17 ; • ANNAND & THOMSON v TPC (1979) 25 ALR 91 pg 389 – 2 cars which had not been bpught/sold came under scrutiny of whether they were used. Imported into aus, used for the first time in 1977, second in aug 1977. Manufactured in 1975. Put that the manfucated date was 1977 •

s29(1)(b)s29(1)(c) s29(1)(d) : PERSON AGREED to ACQUIRE GOODS or SERVICES: • ACCC v ARTORIOS INK CO (2013) FCA 1292 – already s29(1)(e) & (f) e) pretend to proport by any person, wasn’t in the TPA FALSE TESTIMONIALS: • ACCC v P & N PTY LTD (2014) FCA 6 ; • VOLUNTEER ECO STUDENTS ABROAD v REACH OUT VOLUNTEERS (2013) 102 IPR 161 s 29(1)(g) & s29(1)(h) s 29(1)(g) – sponsorship/approval/performance /use /benefits of goods/services: • THOMSON v RILEY MCKAY (1980) 29 ALR 267 ; • ACCC v ENERGY WATCH (2012) FCA 425 s29(1)(h) APPROVAL/AFFILIATION: • AUSSIE HOME LOANS v PHILIPS & TECHNOCRAT COMPUTING (1998) 40 IPR 392 s29(1)(i)

PRICE: total amount, all fees and charges • ACCC v DELL COMPUTERS (2002) 126 FCR 170 & • ACCC v METRICON HOMES (2012) FCA 797 pg403. • s29(1)(j) REPAIR s29(1)(k) PLACE OF ORIGIN: - present difficulties, where we have specific articles where we have to have things brought from different places. Where was the design? ect • NETCOMM v DATAPLEX (1988) 81 ALR 101; - computer modem. Trade and a magazine. Described the modem in Australia. Code for the software was made in the USA. Various components of the modem was from the USA. • TPC v QDSV HOLDINGS (Bush Friends Australia) (1995) 128 ALR 551 pg408 • Koalas with a label “Aussieborn” aussie born range is made in aus by an aus s29(1)(l) NEED FOR ANY GOODS OR SERVICES: • ACCC v NUERA HEALTH (2007) FCA 695 – cancer care, we can offer a product which will help you. Was false

s29(1)(m)& 29(1)(n) s29(1)(m) existence or exclusion of warranty, guarantee, right or remedy WARRANTY, GUARANTEE, RIGHT OR REMEDY: • ACCC v HEWLETT-PACKARD AUST (2013) FCA 653 s29(1)(n) CONSUMER GUARANTEES • EXPRESS WARRANTY is attached to the goods, without any extra cost; • s29(1)(n): right that is already covered by a statutory law • Extended warranty is an additional warranty. • Extended warranties are sold for very expensive products eg expensive motor vehicles • Extended warranty is a separate contract from the contract of sale for the product S30 ACL - Prohibits a person in trade or commerce from making false or misleading representation in connection with the sale, grant or possible sale or grant of an interest in land. - Central equity limited v central corporation (1995) 32 IPR 481 - ACCC v Gary Peer & Associates (2005) 65 IPR 481

S31 ACL Prohibits a person from engaging in conduct that is liable to mislead persons seeking employment ACCC v Zanock technologies (2009) FCA 1124 S33 ACL Prohibits a person in a trade or commerce from engaging in conduct that

S37 Prohibits a person from making a false representation regarding the profitability or risks of a business activity ACC v HALKAALIA (2012) FCA 535 – Scam ACC v MAILPOST AYSTRALIA (2010) FCA 369 – scam REMEDIES & ENFORCEMENT POWERS • Declaration: s21 (Federal Court of Australia Act 1976 (Cth) Pecuniary penalties: s224 ACL • Undertakings: s218 ACL • Substantiation Notices s219 • Public warning notices s223 • Injunctions s232 • Damages s236 • Compensatory orders s237 • Orders for non-party consumers s239 • Non-punitive orders s246 • Adverse publicity orders s247 • Disqualification orders s248 • Infringement notices s134A CCA • Orders for the preservation of property s137F CCA • Power to obtain information & documents s155 CCA • Criminal remedies: 151,152,153,1565,156 & 159...