BLAW10001 Lecture Notes - Lecture 9: Unfair Business Practices, Coles Supermarkets, Consumer Protection
15 May 2018
School
Department
Course
Professor
Principles of Business Law
• Lecture 1
• Week 9
• Consumer Protection
• Consumers are at a disadvantage with suppliers of goods and services:
o Less negotiating power
o Less well organised
• Australia’s uifor cosuer protectio la
• Was enacted in 2010
o Deals with:
▪ Misleading or deceptive conduct
▪ Unconscionable conduct
▪ Unfair terms in contracts
▪ Unfair business practices
▪ Guarantees in consumer contracts
▪ Unsolicitied consumer agreemnts
▪ Safety standards
• Enforcement of the ACL
• Private actions brought against suppliers by consumers:
o Consumers can ask for:
▪ An injunction
▪ An award of damages
▪ Payment of compensation
▪ A declaration that a contract or arrangement is void in whole or in
part
▪ An order varying terms of a contract or arrangement
▪ The refund of monies paid
▪ An order for repairs or the supply of spare parts
o The imposition of pecuniary penalties and fines (can only be sought by the
Australian Competition and Consumer Commission (ACCC)
• Section 18
• Persons
o Includes natural persons and cooperation
• Misleading conduct
o Prohibited only if it takes place in trade or commerce
• Conduct
o Is misleading when it leads the persons at whom it is directed into error
• Concrete Constructions v Nelson
• Held
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o The phase tade o oee iludes oly odut hih, of its atue,
bears a trading or commercial character (as opposed to all conduct engaged
in by or on behalf of a business)
o The conduct at hand, internal communications between employees (not
elated to ustoes) as held ot to ou i tade o oee
• McWilliams Wies McDoald’s
• Held
o Mere wonderment or confusion will nice suffice
o Conduct was not misleading
• ACCC v TPG
• Held
o fie pit aot ualify o otadit the doiat essage
o It did not matter that any error would be corrected before any transaction
resulted
o The poisio potets osues fo eig da ito the aketig
e
• ACCC v Coles Supermarket
• Held
o Conduct was misleading
o Consumers would pay attention to claims about freshness etc
• Conduct
• It is not relevant to prove that the product was either intentional or negligent
• Misleading conduct can occur in the form of doing something, or failing to do
something
o Can also be in form of making, or failing to make, a statement
o Applies to a great many different situation
• Yorke v Lucas (intention not needed)
• Held
o It is no defence to claim that the misleading information was given without
negligence or in the belief it was true
• Butcher v Lachlan Elder
• Held
o Although in small print, the disclaimer was legible
o This changed the nature of the conduct:
o From: an unqualified representation about the accuracy of the survey
diagram reproduced
o To: a representation that the diagram comes from what is believed to be a
eliale soue ut that othe tha that, Bs odut as liited to passig
o the ifoatio poided y the edos soliito
• Section 20
• A person must not, in trade or commerce, engage in conduct that is unconscionable,
within the meaning of the unwritten law rom time to time
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