Week 9 Everything Flashcards

You may prefer our related Brainscape-certified flashcards:
1
Q

Australian Competition and Consumer Act 2010

A

The Australian Competition and Consumer Act 2010 (Cth), is Federal legislation (Statute law), which means it is law whose provisions apply uniformly (in the same way), throughout Australia. The ACL is a Schedule of that Act. The Act deals with many aspects of the way business is conducted in Australia – competition, fair trading and consumer protection being just some of those aspects. The part of that Act being dealt with here is that which deals with the protection of consumers and is contained in the ACL.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

AUSTRALIAN CONSUMER LEGISLATION: Why protect consumers?

A

Consumers are seen to be entitled to additional protection under Australian law because when dealing with a business they are usually at a disadvantage. The traditional rules of contract law offer little assistance to a consumer who is disadvantaged because of this inequality of bargaining power: the general rule is caveat emptor. Consumer protection legislation [ACL], seeks to address the fundamental imbalance in bargaining power between business and consumers.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Examples of consumer protection:

A

Implying additional terms into certain contracts to protect the consumer

Prohibiting certain types of conduct by businesses

Closely regulating certain types of transactions with consumers, such as those involving the handling of consumers’ personal information.

Applying significant criminal and civil consequences for businesses that are found to have contravened consumer protection laws, as well as the possibility of unwelcome media attention.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

The ACL protects consumers by prohibiting:

A

Misleading or deceptive conduct generally,

Unconscionable conduct,

Unfair terms

Various specific forms of prohibited conduct.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

The ACL is administered and enforced by the

A

The ACL is administered and enforced by the Australian Competition and Consumer Commission (ACCC) and by the various State and Territory consumer protection agencies.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Section 3 A person is defined as a consumer if: the goods or services acquired are:

A

[i] $40,000 and under and

[ii] Above $40,000
and

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

[i] $40,000 and under and

A

the goods or services have not been acquired for the purpose of re-supply or they are not being used up or transformed in a process of production or manufacture.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

[ii] Above $40,000

and

A

The goods or services are of a kind normally used for household use and They have not been acquired for re-supply, or They are not being used up or transformed in a process of production or manufacture.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

AUSTRALIAN CONSUMER LEGISLATION: Misleading or deceptive conduct

A

Section 18: ‘A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’. In establishing a breach of the section, the intention of the business is irrelevant. Liability cannot be avoided by use of a disclaimer. The range of remedies provided by the ACL for breach of this section is much wider than that available at common law for misrepresentation or breach of contract. The section can be relied upon not only by consumers but also by interested members of the public and by other businesses, including competitors.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

The section can be relied upon not only by consumers but also by interested members of the public and by other businesses, including competitors:

A

Eveready Australia Pty Ltd v Gillette

Australia Pty Ltd [1999] FCA 1824

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

AUSTRALIAN CONSUMER LEGISLATION: Misleading or deceptive conduct

A

An action for contravention of s 18 ACL may be brought in conjunction with, or as an alternative to, an action for:

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

An action for contravention of s 18 ACL may be brought in conjunction with, or as an alternative to, an action for:

A

Negligence

Passing off

Defamation

Breach of contract

Misrepresentation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Section 18 Requirements:

A

Meaning of ‘person’:

Meaning of ‘trade or commerce’:

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Meaning of ‘person’:

A

The reference to ‘person’ means this term includes individuals and corporations.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Meaning of ‘trade or commerce’:

A

Conduct that takes place in a non-commercial context (not in trade and commerce), will not be in breach of section 18.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Meaning of ‘conduct’

A

A business will ‘engage in conduct’ if it makes a statement or a claim or a promise, performs an action, or refuses to do any of these things.

In certain circumstances, even silence can be conduct: Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 42

17
Q

Meaning of ‘misleading or deceptive’

A

‘Mislead’ is usually interpreted as simply meaning ‘to lead astray’ or ‘to lead into error’, and ‘Deceive’ is interpreted as ‘to cause to believe what is false’. In deciding whether conduct is misleading or deceptive the court will use an objective test: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177

18
Q

Meaning of ‘likely to mislead or deceive’.

Objective test

A

To determine whether this requirement has been breached, 2 tests are applied: (transparencies 19-20):

19
Q

To determine whether this requirement has been breached, 2 tests are applied: (transparencies 19-20):

A

The target audience must be identified

The question must be asked as to whether the most naïve or gullible among them is likely to be mislead or deceived.

If the answer is ‘yes’, s 18 has been breached.

20
Q

Henderson v Pioneer Homes Pty Ltd (No 2) 1980 29 ALR 597

A

A statement that is literally true can still be misleading or deceptive

21
Q

A statement that is not literally true is not necessarily misleading or deceptive.

Example

A

An advertisement which claims a soft drink will make you fly is obviously untrue. No one would believe it. It would be interpreted as a mere ‘puff’

22
Q

AUSTRALIAN CONSUMER LEGISLATION:Unconscionable conduct

A

A person will engage in unconscionable conduct if it unfairly takes advantage of another person’s special weakness or disability.

23
Q

There are two types of unconscionable conduct prohibited by the ACL:

A

Unconscionable conduct generally: s 20

Unconscionable conduct when supplying or acquiring goods or services to, or from, a person other than a listed public company: ACL s 21.

24
Q

AUSTRALIAN CONSUMER LEGISLATION: Unfair terms

A

A term of a contract will be unfair in contravention of ACL s 23 and therefore void if:

The contract is a consumer contract;

The contract is a standard form contract;

The term is unfair.

25
Q

A term of a consumer contract is ‘unfair’ if :

A

It causes a significant imbalance in the parties’ rights and obligations arising under the contract.

It is not reasonably necessary to protect the legitimate interests of the business

It would cause detriment to the consumer.