1.

Conduct commerce of the respondent as it negatively affected how the public would view is because ‘an expression of opinion which is identifiable as such conveys no
____ is alleging that procuring the ___ was not under good conscience/was the company which would result in an economic disbenefit. more than that as an opinion which is held…. Because however erroneous
misleading and deceptive // ___ is alleging that the conduct of including clause B) Misleading or deceptive or likely to mislead or deceive. Conduct is misrepresents nothing (Global Sportsman v Mirror Newspapers). The court in
_,_,_ was unfair. misleading or deceptive when it leads into error (Parkdale Custom Built Tobacco Institute of Australia held that generally where no objective criterion
Furniture). The methodology for determining such conduct was decided in Taco exists so that what is said will be seen not as a statement of fact, but as one of
2. Why is this conduct of concern? Bell where the courts laid out a four-step test. (Taco Bell) :i. Identify the opinion. Seafolly: Madden’s posts were more than opinions. She had posted 7
relevant sections of the public (class of consumers) by reference to which the photos of models wearing Seafolly garments alongside 8 Photos of models
This conduct is of concern to ___ because _____ question of whether the conduct is likely to be misleading or deceptive. HC in wearing White Sands garments under the heading ‘the most sincere form of
3. Party’s Campomar drew a distinction between an identified individual and the general flattery’ when the Seafolly garments were actually designed and made before the
The act of ______ was done within the scope of X’s actual authority as a public. Identified individual: relevant ‘class’ is confined to that individual (not White Sands garments. Having the ability to compare swimwear designs, the
director/employee/agent of the corporation and is thus, taken to have also been necessary to construct a hypothetical individual – whether it misled that representative member of a class who is not completely astute about swimwear
engaged by the corporation s139B(1) of CCA. As __ is a corporation, the ACL individual (Campbell). Public at large: ‘it is necessary to isolate by some designs would have been lead to believe that the assertion made by Madden was
applies to the conduct s131 of CCA. As __, is an employee of the Crown, the criterion, a representative member of the class. A hypothetical individual isolated based on fact, when this was actually wrong. This was endorsed in Infra-secure
act binds the individual in right of the Crown s2A CCA. by some criterion as a representative member of that class (Campbell v v Crocker (No.3) (emails alleging IP stolen were untrue) Silence and failure to
Backoffice). SUBDIVIDING CLASSES? It is possible that there may be two disclose: is within the definition of accepted conduct under s2(2)(c)(i) ACL as
4. Misleading or deceptive conduct – Part 2-1 classes of consumer: i.e. medical practitioners and the general public. Expected the ‘refraining (other than inadvertently) from doing an act. This was further
The potential law that would be applied to aid ___’s cause of action is s18 which medical practitioners have a higher degree of knowledge (AstraZeneca v confirmed in Miller & Associates Insurance, that a failure to disclose certain
prohibits persons in trade and commerce from engaging in conduct that is GlaxoSmithKline). In Apotex Pty Ltd v Les Laboratires Servier, the court information could constitute conduct under s18 ACL. The test in Demagogue is
misleading or deceptive or is likely to mislead or deceive. subdivided into multiple classes – patients who used the drug, doctors who whether the context of the facts gave rise to a ‘reasonable expectation of
prescribed the drug and pharmacists who dispensed it. This was only because of disclosure’ (Gummow J). Hau Quan Global Smash Repairs v Ledabow: Mr H
A). ‘in trade or commerce’ Activities which are conducted in trade and
the vast differences between classes (p.57). HOWEVER,… when it is just to a failed to disclose clause to the Dangs that prevented assignment of the benefit
commerce bear a trading or commercial character (Bank of NSW v The
large group of consumers with different levels of knowledge and understanding, without written consent from NRMA. Held: there was a reasonable expectation
Commonwealth) and are activities which are made ‘in’ trade or commerce, as
the courts have been unwilling to subdivide into separate classes - ACCC v Ascot to disclose. INTENTION? Currently, the HC has yet to decide whether to refrain
opposed to conduct which is made in connection with trade and commerce
(Price representation in a catalogue): did not undertake a more sophisticated (other than inadvertently) requires intention, however, lower courts in recent
(Concrete Constructions v Nelson). ____ would argue that the conduct was
distillation of the class by imputing refined characteristic to the representative. years have failure the approach that non-disclosure need not be intentional
made ‘in’ trade and commerce because ___ directly benefited the economic
Ultimately, they were all consumers with different levels of knowledge and (Tuggeranong Town Centre v Brenda Hungerford Pty Ltd quoting Alson
activity of the corporation. However, ___ would argue that this was a conduct
understanding. The court recognised there are some who possess knowledge Nominees (No.2) v Clambake;). Future representations: S4(1) shifts the
made ‘in connection’ because the purpose of ___ was not to affect business. It
about the jewellery, other who don’t and some who don’t even read the evidentiary burden of a future representation onto the representor. It deems a
is likely that ______. Madden v Seafolly Madden, was the owner of a swimwear
catalogue. However, the fact that not all consumers in an identified class were future representation to be misleading or deceptive unless the person or
brand, she posted on her personal Facebook, as well as her company’s Facebook
misled did not mean none of the consumers were misled. This was subsequently corporation making the representation has reasonable grounds for making the
alleging that Seafolly had copied her design. Held: The conduct was in trade
approved by ACCC v Proud Jewellers. Unilever v Goodman Fielder: Logicol representation. The representor can be a party to the proceeding s4(2)(a) or any
and commerce as Madden, using Facebook had sought to influence the attitudes
represented by Goodman (manuf) to lower cholesterol. Likely consumers: those other person s4(2)(b). A corporation may contravene s18 whatever its intention,
of potential Swimwear customers to stop purchasing from Seafolly and as
who are prepared to pay a price premium in pursuit of an objective related to the if representations about future conduct do not come to pass does not make them
Seafolly and White Sands were competitors in the same industry, this would
health benefits indicated. ii. Analyse whether the representation is misleading/deceptive without ‘more’ (James v ANZ; Phoenix). The ‘more’ that
directly benefit her and negatively impact Seafolly. Fletcher v Nextra (2015):
misleading/deceptive: by reference to all who come into in including the astute, is required to ripen a future representation into a misleading representation exists
representation on an online blog about a rival newsagent franchise. Held:
gullible, intelligible, not intelligent, educated, not educated (National Exchange where the future representation carries with it an implied statement of present or
conduct in trade or commerce as directly intended to negatively impact the
v ASIC). This is determined objectively, not subjectively - the hypothetical past fact – ‘one has to plead material facts in relation to the implication in the
conduct of his rival and protect his own business interest. Houghton v Arms: Mr
member of the class is said to have an objective complexion (Veda Advantage statement of the present or past fact, the present intention and the means to carry
Houghton and Student advised Mrs Arms of an opportunity which they said was
Ltd). Thus, the representative member of that class will likely be an ordinary and it out, the relevant circumstances giving rise to that qualification (Phoenix).
simple as filling in a form and paying a small set up fee, however, this was a
reasonable member of that class that would care about the topic but is not Examples include: future income level (Nescor v Miba), inducement by a real
misrepresentation. Held: Whilst, Houghton and Student were of themselves not
particularly informed. They are neither super astute about ______, nor are they estate agent about sporting and leisure facilities (Stack v Coast Securities).
in trade and commerce, their statements had the effect of affecting how
super gullible and they do not know much about ______. In determining whether Alpine Beef v Trycill: courts concluded that the Ullrich and Boatspeed did have
customer’s viewed Arm’s business and was thus, held to be in trade and
one has been lead into error (Parkdale Custom Built Furniture v Puxu), one has reasonable grounds for making the future representations that the hull design
commerce. Firewatch Australia v Country Fire Authority: CFA issued bulletin
been lead into error where there is a real or not remote possibility, regardless of would be of great durability, high quality and free from defect as they adduced
to its members that Firewatch used extinguishers that failed to comply with Aus
whether it is less or more than 50% (Domain Names). Evidence of actual evidence as to what caused the blistering.
standards. The bulletin, although an internal document, was in trade or
misleading or deception is not essential but may be persuasive (Domain Names Character merchandising: supplier associates a good/service with a well-
commerce, as it intended to influence servicing brigades not to be involved in
v au. Domain). On the facts, ___ acted _______. Here we can analogise their known personality. This creates a good feelings and emotional attachment
distributing/recommending the firewatch extinguisher.
actions … Comparative advertising: actionable misrepresentations (Pacific Dunlop: misleading that Paul Hogan endorsed Grosby Leatherz shoes
Orion Pet Products v RSPCA: statements made in public debate and advocacy
(quantification, measurement or concrete evaluation) vs mere ‘puff’ (self- or that there was some form of commercial association between the two. Court
(electric dog collars are cruel), although M or D, not in trade or commerce
evident, exaggerated that no reasonable consumer would take as the literal truth found in favour of Paul Hogan due to the likeness of the scene to Crocodile
because the connection to the RSPCA’s main trading activities of offering
Gillette v Energizer: Duracell Bunny vs relay team of 3 non-duracell Bunnies. Dundee). Need to establish A. Conduct in trade or commerce. B. Identify the
training/re-sheltering of pets was tenuous at best. Public exposure gained was
Held: ad not misleading or deceptive for Duracell comparing its alkaline battery class led into error 3. To get damages, show the conduct caused loss or damage.
incidental at best. Village Building v Canberra International Airport CIA
against Eveready’s carbon zinc battery as it was based on fact – the comparison Netwon-John v School-Plough: dismissed as the ad tells the most causal reader
wanted to obtain a licence that would reduce aircraft noise over their area but
that Duracell’s battery could last 3x longer than Energizer’s battery was true that it is not Olivia Netwon-John. Contractual terms: in the right
increase noise near Village Building’s land. Held: protecting a business is not,
because Alkaline could hold more power than Carbon Zinc. This actually circumstances, a failure to perform a contractual promise about a future matter
of itself, enough to ensure that the conduct was is in trade and commerce. The
benefited consumers by enabling a more informed choice and there was nothing will constitute misleading or deceptive conduct – i.e. at the time the promisor
question is whether it falls within the central conception of trade or commerce
inherently suspicious about it. Sabre Corporation: statements, which are mere entered into the contract and accepted the obligations, they did not have the
explained in concrete construction. TCN Channel Nine v Ilvariy: Reporter
puffing, must be statements of opinion and not of fact. Byers v Dorotea: units intention or capacity to perform those obligations (Futuretronics; Coles v FKP).
represented as wanting a quote but was actually for A Current Affair. Although
were ‘bigger and better’ than units in another building were actionable iii. Is there a casual nexus between the conduct and the mislead state of
procuring the interview was not in trade or commerce, it affected the trade and
misrepresentations (quantifiable). ACCC v Coles – ‘baked today, fresh today’ mind? In identifying the nexus there must be regard for the particular
Opinions: Simple opinions are unlikely to constitute misleading conduct. This circumstances of each case. Extreme and fanciful erroneous assumptions are
not likely reactions and not attributed to the “ordinary” or “reasonable” member B. ‘Pejorative moral (Hurley) element involving some moral fault that would Kakavas (gambled and lost $20.5 million): Kakavas presented himself as a
of a class (Taco Bell; Campomar). McWilliams’s Wines v McDonald’s Systems not be present if the conduct were merely negligent. person capable of controlling his urge to gamble and make prudent decisions.
of Australia: ‘Big Mac’ used for a wine pack, may be confusion/ wonderment D. Must suffer from a degree of ‘moral tainting’ (Tonto) and deliberate HC held he was not at a special disadvantage as he was able to make rational
but NOT misled in the connection between McWilliams and McDonalds. Some wrongdoing. decisions concerning his own financial interest and the conduct of the business
commercial relationship between McDonalds and McWilliams is likely to have In order to determine this, the task of the court is the evaluation of the facts is lawful. Remedy: injunctive relief (s232) and damages (s236)
been drawn by an erroneous assumption. IV. Establishing a not insignificant against accepted and acceptable community values and this was elaborated in
proportion of consumers have been misled Bodum establishes that by (ACCC v Ford Motor Company of Australia Limited quoting Paccioco v 4.Unfair Contract Terms Regime Part 2-3
showing that a hypothetical member of the class has been misled is the same as Australia and New Zealand Banking Group Ltd ) The potential law that __ can rely on is the unfair contract terms regime in Part
establishing a not insignificant proportion of people having been misled. This ‘1.a recognition of the deep and abiding requirement of honesty in behaviour, 2-3 of the ACL. A term of a consumer contract or small business contract is
is because the hypothetical representative member of the class operates as a rejection of trickery or sharp practices, 2, fairness when dealing with void if: the term is unfair, and the contract is a standard form contract.
'proxy' for the balance of the class, as if all of the members have been 'rolled consumers; 3. the central importance of the faithful performance of bargains * link with unconscionable àUnconscionable conduct provisions in the CCA
into' the hypothetical representative who stands as a representative of the whole. and promises freely made; 4. the protection of those whose vulnerability as to will be activated in circumstances where exercise of contractual term is
4. Remedy: Ch 5 – injunctive relief (s232) or damages (s236). 5. Escaping the protection of their own interests places them in a position that calls for a just unconscionable. ACCC v Dukemaster: exercise of contractual right by owners
liability? Exclusion clauses (Henjo Investments) and non-reliance clauses legal system to respond for their protection, especially from those who would of shopping centre to increase the rent was considered unconscionable.
(Oraka v Leda) will be ineffective in shielding a party. It is possible to escape victimise, predate or take advantage; 5. a recognition that inequality of 3 elements:
liability through a disclaimer - Parkdale: label was sufficient escape liability bargaining power can (but not always) be used in a way that is contrary to fair 1. There must be a consumer contract s23(3): defines consumer contract by
despite Parkdale furniture looking like Puxu’s ‘contour’ range dealing or conscience; 6. the importance of a reasonable degree of certainty in reference to personal, domestic or household use or consumption. The regime
commercial transactions; the reversibility of enrichments unjustly received; 7. only applies to transactions between traders and consumers.
4. Unconscionable Conduct Part 2-2
the importance of behaviour in a business and consumer context that exhibits 2. The consumer contract must be a standard form contract (take it or leave
The potential law that ___ can rely on is s21 and s20 ACL. S21 ACL prohibits
good faith and fair dealing; and the conduct of an equitable and certain judicial it basis). No definition in the ACL, however, a rebuttable presumption under
persons, in trade or commerce, in connection with (a) the supply or possible
system that is not a harbour for idiosyncratic or personal moral judgment and s27(1): a contract is a standard form contract unless the other part to the dispute
supply of goods or services to a person, OR (b) the acquisition or possible
exercise of power and discretion based thereon. 3. Remedy: private and public proves otherwise. In determining a standard form contract, courts take into
acquisition of goods or services from a person from engaging in conduct that is
consequences (injunctive relief (s232) or damages (s236). account factors in s27(2).
in all circumstances unconscionable. If arguing s21 is unsuccessful, ___ can
3. The standard form consumer contract must contain a term that is
also argue s20 which prohibits persons from engaging in conduct that is
4.2 Unwritten Law s20 unfair s24(1): meaning of unfair is a three-limbed test and is a is an inquiry
unconscionable within the meaning of the unwritten law.
Limitation: s20(2): s20 does not apply to conduct prohibited by s21. into 'the balance of the rights and obligations arising under the contract' and is
4.1 Statutory Unconscionable Conduct s21; s22 5 different contexts (non-exhaustive) in Samton Holdings: we focus on i) to be viewed at objectively (Ferme & Ors v Kimberly Discovery Cruises).
s21: Limitation – excludes conduct that involves a publicly listed company. knowing exploitation by one party of a special disadvantage of another (age, (a) significant imbalance – Director General of Fair Trading v First
Wider notion of unconscionable conduct than s20 (ACCC v Radio Rentals; illness, poverty, inexperience or lack of education (Commercial Bank v National Bank: significant imbalance where it is so ‘weighted in favour of the
Fubilan Catering Services), A. expressed by the explanatory memorandum (no Amadio)). Or by be situation (i.e. emotional dependence: Louth v Diprose). suppliers as to tilt the parties rights and obligations under the contract
need to identify victim and not need to establish a special disadvantage), B. 1. What does unconscionable within the unwritten law from time to time significantly in its favour’. Director of Consumer Affairs Victoria v Craig
Indicia in s22(1) goes beyond s20 unconscionable conduct and C. s21(4)(a) mean? Samton Holdings: “showing no regard for conscience; irreconcilable Langley: a term was unfair provided at that time caused significant imbalance
specifically states that s21 is not limited by the unwritten law. with what is right or reasonable”. in the parties rights and obligations. It was held terms in a gym membership
s22 – Indicia to which the court may have regard in evaluating whether conduct Starting point: Amadio – Son told parents that the mortgage was limited to preventing a member from suing the gym and cancelling their membership
is unconscionable. ACCC v Simply No-Knead conclude that some of these $50000 and for 6 months but in reality, it was open-ended, securing all monies was unfair. If there is ambiguity it is to construed in favour of the consumer.
indicia go beyond what constitutes unconscionability under s20, i.e. factor (j) owed by the son and his company. Bank aware Mr and Mrs Amadio had been (b) not reasonably necessary to protect legitimate interest of party
or (g). misinformed. Held by HC: the bank had been engaged in unconscionable advantaged by the term s24(4): rebuttable presumption that assumed it is not
A) Use of indicia à Refer to legislation conduct .2.Three elements: necessary to protect legitimate interest unless proven otherwise. Director of
ACCC v Keshow: Keshow made unsolicited approaches on an Indigenous A. One party has some sort of special disadvantage by comparison to the other. Consumer Affairs Victoria v Backloads: contract for the removal and
community for the purpose of selling children’s educational materials. He Blomley v Ryan: illness, ignorance, inexperience, impaired facilities, financial transportation of furniture. One of the clauses purported to deem the contract
exploited customer’s lack of commercial experience. There was significant needs or other circumstances affect his ability to conserve his own interest. between the removalist and its customers to have been made in a jurisdiction
disparity in the bargaining positions (22(1)(a)), customers required to comply Berbatis: “a disabling circumstance seriously affecting the ability of the that did not have an unfair contract terms law.
with conditions not reasonably necessary for the protection of legitimate innocent party to make a judgement in that party’s own interests’. Louth v (c) would cause detriment – detriment and imbalance are likely related.
interests of Keshow (s22(1)(b)), customers unable to understand docs Diprose: infatuation was a special disadvantage, Coggin: being adversely Detriment is not limited to financial detriment, i.e can relate to limitations on
(s22(1)(c)), amount paid by the customer for the materials was in excess affected by medication to treat a spider bite was a special disadvantage the time to make a claim under the contract or the time to terminate the
(s22(1)(e)), ACCC v NuEra Health: marketed diagnostic mechanisms and B. The stronger party is aware of the disadvantage ACCC v Radio Rentals: contract.
treatments for a number of life-threathening diseases, particularly cancer. Some Groth was intellectually disabled and a diagnosed schizophrenic. He spent 40% 4. Factors to consider: In determining the three-limbed test, the courts must
programs cost $35000 and lacked medical science thus ineffective in treatment. of DSP on agreements with RR. Held: RR not engaged in unconscionable consider the extent to which the term is transparent and the contract as a
Weaker barganing power as ill (s22(1)(a)), could not understand docs, treatment conduct as not sufficiently aware of his special disadvantage., AND whole, then any other factors relevant (s24(2)). Transparency is defined in
or products sold (s22(1)(c)). ACCC v Simply No-Knead (Franchising): refusing C. It is unconscionable for the stronger party, knowing of the special s24(3).
to deliver flour and other products until invoices paid amounted to unfair disadvantage, to enter into a contract with the weaker party. 4a. s25(1) provides examples of terms that MAY be unfair à i.e. ‘furthermore
pressure (s22(1)(d)), refusal to meet and negotiate a resolution of franchisee Samton (Ranaldis failed to exercise the renewal option on lease): found a there is evidence/ no evidence that __
concerns was unreasonable (s22(1)(d)), began to compete with franchisees disadvantage but not a ‘special’ disadvantage because received legal advice 5. If found to be an unfair term and a standard form contract: Term
demonstarted a lack of good faith (s22(1)(l)), failure to provide discloure docs before settlement, lessor under no legal obligation to renew lease, conduct not declared void under s23(1), it is void ad initio (void from its inception). s23(2)
(s22(1)(g)). Coggin: unable to understand the nature of the docs he was signing unconscionable, mere inequality of bargaining power is not enough. provides the continuing operation of the contract if it is capable of operating
(s22(1)(c), bargaining strength was a disadvantage (s22(1)(a)), lack of good Berbatis (fish and chip shop, daughter ill and had to sell fish and chip shop): without the unfair term.
faith towards Coggin (s22(1)(l). HC held Berbatis has not engaged in unconscionable conduct. The fact one 6. Exceptions: Exemption from the unfair contract terms regime: s28(1)(a):
B) General Principles in Common Law? ACCC v Lux Distributors party is in a weaker position does not alone amount to unconscionable conduct. marine salvage or towage, (b) charterparty of a ship, (c) carriage of goods by
summarised relevant authorities for what is unreasonable in common law All parties were business people concerned to protect or advance their own ships, or s28(3): contract constitutions
A. ‘unfair or unreasonable’ (Hurley v McDonald’s Australia), showing no financial interest and there was no ‘special’ disadvantage (both benefited from 7. Remedy: injunction (s232(3)), damages (s236), and/or compensation (s237)
regard for what is right or reasonable. legal advice, made rational decisions).
Unsolicited Consumer Agreements Part 3-2 Door-to-door/ telemarketing a) not negotiated by phone – 10 business days, starting next business day reasonable consumer)’ – C. This would involve taking into account whether
The potential law that *the consumer* can rely on is the unsolicited consumer b) negotiated by phone – 10 business days, starting on business day after the good s54(2)(a) fit for all purposes for which goods of that kind are
agreements regime in Part3-2, Division 2 ACL. consumer receives agreement commonly supplied, (b) acceptable in appearance and finish, (c) free from
1. Is there an Unsolicited Consumer Agreement? S69(1) c) s73-s75 contravened – 3 months, starting on business day agreement was defect, (d) safe, (e) durable. To inform our decision, we would take into
There are four elements in determining whether a contract is an unsolicited made consideration the indicia in s54(3) – (a) the nature of the goods, (b) the price
consumer agreement and they are outlined in s69(1)(a)-(d). Firstly, there was a d) s76, s78-81, 86 contravened – 6 months, same as above of the goods, (c) any statements made about the goods on packaging or label
supply of goods/services in trade&commerce to a consumer – a person is a Has a right to terminate even if contract has been executed – s82(2) on the goods, (d) and any representation made about the goods by the
consumer under s3ACL when cost of goods is <40k or if >40k are of a kind supplier/manufacturer of the goods, (e) and any other relevant circumstances
4. Consequences of termination: s83 – contract is deemed to be rescinded by relating to the supply of the goods and effectively question ‘whether a
ordinarily acquired for personal domestic or household consumption.
mutual consent (1)(a) and any related contract or instrument is void (1)(b), reasonable consumer, being aware of the characteristics of thee good set out in
Furthermore, the goods/services were acquired in trade&commerce as *GO TO
definition of ‘related contract or instrument’ in (2). Three ‘related contracts or (2) and (3) at the time of goods are supplied, regard them as acceptable?’ On
CASE LAW SECTION* Secondly, the arrangements were made as a result of
instruments’ commonly found: 1. Mortgage or security favouring the supplier balance it is likely that a reasonable consumer would have viewed the good as
negotiations (s72) between a dealer (s71) and a consumer in each other’s
or dealer, 2. Guarantee favouring the third party in favour of the dealer or (not) being of acceptable quality as _____. Therefore, __
presence in a place other than premises of the supplier, or telephone. This is
supplier, 3. Tied credit contract where supplier enjoys business relationships D. Defences: (4): where the reasons for the goods being unacceptable were
satisfied on the facts as *insert dealer* contacted *insert consumer* over the
with a credit provider. 1. and 2. related to s83(2), however, 3. does not. This brought to the attention of the consumer before the consumer agreed to the
phone s71(b)/ in person at the consumer’s residence s71(a) with * consumer *
right is found in the Credit Code s135. Effect of termination even if supplier supply, (5) where goods are for sale/hire and they are not of acceptable
with a view of entering into discussions for the supply of goods or services to
has not received the notice (s83(2)(a)) or goods/services been wholly or partly quality, this needs to be disclosed to the consumer on a written notice that is
them s72. Thus, *dealer *’s actions can be imputed back to the *corporation*
consumed (s83(2)(b)). transparent (6): when the consumer is a fault because of abnormal use.
through s139B CCA. Thirdly, the agreement was unsolicited as the consumer
5. Obligation of suppliers on termination: s84: supplier must refund (7): when examination of the goods should have revealed lack of acceptable
did not invite *dealer* or call *dealer* for negotiations. The *dealer* simply
‘immediately upon being notified of the termination’. Under s88(1) - suppliers quality. Jones v West Motors Pty Ltd: Defence was held not to apply because
called/knocked on *consumer.* NB: s69(1A) - the consumer is not taken to
are prohibited from instituting or threaten legal proceedings. Under s88(2): the purchaser had not noticed all the defects when he examined the second-
have invited the dealer to come to that place, or to make a telephone call merely
suppliers are prohibited from placing the consumer’s name on a list of hand vehicle. Jones, at time of purchased noticed a number of defects, which
because the consumer has given his or her name, or called back. Finally, the
defaulting or debtors once contract is terminated. the seller then remedied. However, later he discovered a number of other
total price paid under agreement was not ascertainable at the time the agreement
6. Obligation and rights of consumer on termination: s85(1)(b) - consumer defects that the seller refused to repair. The court held that he should have
was made s69(d)(i) as this was not written in the contract. Thus, as the consumer
must within reasonable time must notify the supplier of the place to collect discovered the other defects at the same time as the initial defects. Dawson v
is claiming that there is a UCA, the burden of proof is now on the dealer to
goods. If the supplier does not pick up within 30 days the good are the Pacific Chase Investments: The defence was held not to apply even though the
prove that there isn’t a UCA s70.
consumers (s85(2)(b)). Under s85(3) the consumer is liable for loss or damage purchaser originally when examining had declined to have the horse vet
2. Was there a breach in the UCA? if they have failed to take reasonable care of the goods. Not liable if checked and then discovered afterwards that the horse suffered from a medical
Permitted hours of negotiating (including calling) – s73 depreciation (s85(5)). condition.
Not allowed to call/negotiate on a Sunday, public holiday or outside 9-6 on a 7. Amendments to UCA: must be signed by both parties to the agreement
weekday AND 9-5 on a Saturday. Exception – if a dealer calls with consent. (s81) s55 – Guarantee as to fitness for any disclosed purpose: A. i) person
8. Supplier is also liable s77 supplies, ii) ‘in trade or commerce’ iii) goods to a consumer iv) that are of
Disclosure of purpose/identity – s74 reasonable fit for any disclosed purpose. B. (2) the consumer makes known
Person must disclose identity and purpose as soon as practicable – must not 9. Non-excludability: supplier cannot exclude the operation of a provision
under the regime (s89(1)). the particular purpose whether expressly or implicitly to the (a)(i) supplier,
gain consent by deception. Must also advise that dealer is obliged to leave (a)(ii) or a person by whom they were negotiating for the acquisition of goods,
immediately on request (s75 in detail). 10. Consequences of breach: s93 states a supplier who breaches a provision
of the UCA cannot enforce the agreement against the consumer. Civil or the (b) manufacturer. Note: Supplier or manufacturer is deemed to have
If asked to leave, dealer must not contact consumer for renegotiating an UCA pecuniary penalties under Ch 5 (injunctive relief (s232) and damages (s236)), known of the consumer’s purpose in acquiring goods if the goods have only
for at least 30 days – s75(2) criminal fines in Ch 4. one purpose: Carey-Hazell v Getz Bros & Co – Carey-Hazell alleged that a
Informing about Termination Period – s76 ACCC v Titan Marketing (2014): sales rep wore badge and uniform, sold from mechanical mitral valve manufactured in the United States, which was
Before agreement is made, dealer must give information to consumer on $400-1000, only worth $50, did not inform consumer rights. inserted into her heart was not fit for purpose – given that the only purpose of
termination i.e what rights and how. the valve was only to replace damage natural mitral valves – the court held
Note: s90 – consumer under a UCA is not competent to waive any rights that the purpose was already apparent to the supplier. C. Exception: (3): does
Chapter 3 requirements of an UCA conferred by this division or should be induced by supplier from waiving not apply if the consumer did not rely on or unreasonable to rely on the skill or
Provide consumer with a copy of agreement (even if negotiated on phone) – s78 rights under this division s90(2). judgement of supplier or manufacturer. Graham Barclay Oysters Pty Ltd v
Provide within 5 business days in person or by post – s78(2) Ryan: oysters sold by Graham and consumed by Ryan who fell ill with
Contents of a valid agreement – s79 Consumer Guarantees Regime – Part 3-2 Div 1
hepatitis A. Held: Even though there is no evidence of reliance, but that does
Set out all the terms The potential law that *the consumer* can rely on here is set out in the not mean the circumstances demonstrated a lack of reliance. A person will not
Identify total consideration consumer guarantees regime of the ACL (Part 3-2 Div 1). normally seek an assurance that an item grown or manufactured for human
Display a front page informing consumer right to terminate 2. Who is a consumer? ACL s3(1): ‘acquiring goods as a consumer’; s3(3): consumption is fit for that purpose. In the absence of an obvious defect or
Accompany with a notice that consumer can use to terminate ‘acquiring services as a consumer’: (i) <$40 000, or (ii) >$40 000 for a kind special circumstance, fitness will be assumed. Therefore, it was held that the
Provide full info about supplier (number, ABN etc) ordinary for personal, domestic or household use (question of fact and degree: acquirer did rely on the skill and judgment of the manufacturer even though
Be transparent Bunnings Group v Laminex) Note: s266 – Gift recipient entitled to any rights this was not explicitly made known.
Extra requirements – s80 or remedies that would be available to the other person if he or she had s56 – Guarantee that goods meet description: A. i) person supplies, ii) ‘in
Must be signed by consumer or person on behalf of consumer acquired the goods from supplier trade or commerce’ iii) goods by description to a consumer, i.e. description
Changes to UCA must be signed off by both parties – s81 1. Applying the guarantees: though advertising or a catalogue, the eventual goods must correspond with
Prohibition on supplies – s86
A. GOODS: s51 Title, s52 Undisturbed possession, s53 Disclosed securities that description
Must not accept payment or supply goods for a period of 10 business days after
s54 Guarantee as to acceptable quality: A. i) person supplies, ii) ‘in trade s57 – Guarantee that goods meet sample/demonstration model A. i) person
agreement was made/received.
or commerce’ iii) goods to a consumer iv) of acceptable quality – B. what is supplies, ii) ‘in trade or commerce’ iii) goods to a consumer by reference to a
3. Determining the Termination Period – s82(3) acceptable quality? s54(2) ‘of a reasonable consumer - (Contact Energy v sample or demonstration model, i.e. paint or carpet samples. Rasell v Cavalier
Jones - NZ): described this test as a composite and context specific attribute – Marketing: carpet laid in the Rasell’s home did not correspond to the sample
4 different possible periods depends on in person/phone and nature of taking into context the specifics of the product from the opinion of a provided
breached requirement – find the longest period
 S58 – Guarantee as to repairs and spare parts A. i) person supplies, ii) ‘in trade or commerce’ iii) goods to a consumer iv) that the manufacturer of the goods took Manufacturer liability for goods with safety defect, Part 3-5
reasonable action to ensure facilities for the repair and parts are reasonable available for a reasonable period. B. ‘reasonable action’: Panasonic Australia Pty Ltd v Burstyner:
the claim of Panasonic’s inability to repair a remote control device made nine years earlier was unreasonable. Test: ‘unreasonable for the manufacturer to place the consumer 1. Injury: Four defective goods actions for loss or damage suffered by
in that position’. Consumer needs to establish: spare party is required to repair consumer’s goods, necessary part not reasonable available, manufacturer acted unreasonably in a person: 1. s138: physical injured by defective product, 2. s139: as a
not ensuring availability and consumer suffered loss or damage as a result. result of injuries suffered by another person (personal relationship)
s59 – Guarantee as to express warranties (s59(1): manufacturers, s59(2): suppliers) A. i) person supplies, ii) ‘in trade or commerce’ iii) goods to a consumer iv) (does not include persons or commercial relationship or employer-
manuf/supplier comply with express warranties. B. Definition of ‘express warranties: s2 employee relationship – s139(1)(e)), 3. s140: as a result of damage to
B. SERVICES: s60 – Guarantee as to due care and skill: A. i) person supplies, ii) ‘in trade or commerce’ iii) services to a consumer iv) rendered with due care and skill. other goods (limited to goods that are ‘of a kind ordinary acquired for
B. ‘acceptable level of skill in the particular area’ and something greater than ‘reasonable care’ personal, household or domestic use or consumption (s140(1)(c)). 4.
s61 – Guarantee as to fitness for a particular purpose A. i) person supplies, ii) ‘in trade or commerce’ iii) services to a consumer iv) reasonably fit for a particular s141: as a result of damage or destruction of land, fixtures or buildings
purpose’ B. Exceptions: (3) unreasonable to rely on skill and judgment and (4) architect or engineer (limited to acquires for personal use – s141(1)(d))
s62 – Guarantee as to reasonable time for supply A. i) person supplies, ii) ‘in trade or commerce’ iii) services to a consumer iv) supplied with a as to reasonable time. 2. Who is the manufacturer of goods? s7: meaning of manufacturer
Perri v Coolangatta Investments Pty Ltd: unless time is of the essence, the contract must be performed within a reasonable time. a) actually manuf goods, b) holds itself out to the public as the manuf,
C. EXCLUDING LIABILITY: s64: a term of a contract that purports to exclude, restrict, or modify the working of the consumer guarantee regime is void. c) permits its name to be applied to goods, d) permits someone else to
s64A(1): Goods: permits a supplier to limit their liability in certain circumstances, able to limit liability in four situations, (a)–(d), where cost of supply is <$40000 AND promote the goods as being manuf by it, or e) imports products. These
NOT of a kind ordinary acquired for personal, domestic or household use or consumption. (in relation to s51, 52, 53) categories are not mutually exclusive and more than one party can be
S64A(2): Services: permits limiting liability when in relation to (a) or (b) and services is NOT of a kind ordinarily acquired for personal, domestic or household use of considered a manufacturer (Leeks v FXC Corporations – i.e. deemed
consumption. manufacturer and actual manufacturer). Unknown manufacturer:
Limitation clause may still be invalid because it may not be fair or reasonable for the supplier to rely on that term (s64(3), taking into account factors in (4)) s65(1): non- s147(1) written notice given to a supplier to identify manufacturer, (2)
application of regime to suppliers of gas, electricity and telecommunications, (2) defines: telecommunications service. if 30 days after the response still do not known manufacturer, the
supplier whom did not comply with the request is taken to be the
manufacturer
3. In trade or commerce Cook v Pasminco Ltd: noxious fumes
issuing from smelters (subsidiary of Pasminco) caused personal injury
as well as damaged land and buildings. Held: fumes not ‘supplied’ by
Pasminco and not supplied in ‘trade or commerce’
4. What is the safety defect? s9: meaning of safety defect in relation
Consumer
Guarantee to goods. (1) established a general standard that goods have a safety
defect ‘if their safety is not such as persons generally are entitled to
expect’. (2) assists in evaluating that standard considering relevant
factors - objective knowledge and expectations of community. ACCC v
Glendale Chemical Products: blocked bathroom drain and went to
chemist and bought a block of caustic soda, spoke to a mate who said
pour it down the drain with boiling water. Caused a caustic acid
explosion into his face and suffered bad burns. Box did not contain
sufficient warnings to the reasonably expected purpose as an industrial
cleaner. Goods can be defective even if used for what it is intended.
Carey Hazell v Getz Bros & Co: product liability dos not requires good
to be free from risk, it is what the community is to expect. Affirmed by
Merck. Merck Sharp & Dohme v Peterson: Merck a pharamectutical
company manufacturing Vioxx, Mr Peterson suffered a heart attack.
The drug had a safety defect (some people suffered heart attacks as a
result). It is an objective standard based upon what the public at large,
not an particular individual is entitled to expect. Overview: must be
S274 Indemnification of suppliers by
unsafe, not poor quality. Causing injury does not mean defective. All
manufacturer
circumstances are taken into account. Test: reference to the public at
large. Goods do not have to be absolutely safe. Can be defective if
Furthermore, suppliers can bring a cause of action
warnings are insufficient.
against a manufacturer to indemnify their liability IF
5. Defences s142: (a) defect did not exist at the time they were
(1)(a) the supplier is liable to pay damages under
supplied. (b) Defect occurred because of compliance with a mandatory
s259(4) because there was a major failure which
6. Contributory negligence: s137A of CCA: the amount of
caused the consumer loss or damages, AND (1)(b)
compensation payable by the manuf of a defective product can be
the manufacturer is or would be liable under s271to
limited or negated by evidence of the consumer’s own CN.
pay damages to the consumer for the same
7. Exclusion clauses: s150: It is not possible to exclude liability.
loss/damage. Limitation Period: (4) Supplier may
8. Time limitations: s143(1) 3 years after the time the person became
commence the action at any time within 3 years
aware or ought reasonably to have become aware of damage, defect,
after the earliest of either (a) the day the supplier
manuf identity.(2) action must be commenced within 10 years of the
made a payment to discharge their liability to a
Consequence of Rejecting Goods supply by the manufacturer of the goods.
consumer, or (b) the day on which a proceeding was
s263(2) - consumer must return the goods to the supplier, unless the goods cannot be returned without 9. Remedies: injunctive relief (s232) or damages (s236).
commenced by the consumer against the supplier.
significant cost, in which the supplier is then responsible for collecting the goods at the supplier’s
expense within a reasonable time s263(3). s263(4) The supplier must, in accordance with an election
made by the consumer either (a) refund or (b) replace the rejected goods with goods of the same type.