Proving Misleading Conduct in Trade or Commerce ~ s 18 ACL

To deal with misleading and deceptive conduct cases, the policy of the legislation is to discourage people from misleading others in their commercial dealings with them. Section 18 to the ACL does this by creating a statutory prohibition against misleading conduct.

What must you show under s 18 of the ACL?

Before someone will breach the legislation, certain requirements need to be met: -

• the other person did something (or failed to do something) aka “conduct”;
• in trade or commerce;
• which was misleading or deceptive (or likely to be so);

And, to get damages under s 236 of the ACL you also need to show: -

• that you relied on this, and in so doing was misled and suffered damages.

How do people engage in misleading conduct?

Basically, anything done or not done could amount to conduct. So positive acts and the failure to act, in particular contexts, can be misleading.

An example of this could be to make a provision in a contract that is misleading.

When is something in trade or commerce?

Not everything is in trade or commerce. For instance a private sale of a car may not necessarily be in trade or commerce but much depends on the facts.

Trade and commerce deals with a wide variety of activities but the focus here is on the central conception of it and not everything that occurs within it.

Does it matter if someone did not mean to be misleading?

No, it does not matter in the least if someone mislead another by accident. If you unintentionally mislead another person then you will still be caught.

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