Consumer Rights in Australia - Coursework Example

Consumer Rights in Australia are governed primarily, by the laws drafted by the Federal legislation. In the context of the case, the law that holds most importance would be the Trade Practices Act, 1974 and the Sale of is not nearly sufficient. The following is an assessment of the rights that a consumer or a buyer has in case of a purchase that did not live up to the promise or the expectation that the consumer had of the purchase. Also discussed would be the ramifications of a case wherein a misleading adverstisment was used for the promotion of a product so that buyer interest could be aroused, when in fact there was o such product in place and the event that was promised as a bait to attract consumers was not occurring at all. In the context of this case, one could state right at the beginning that there is a case that could be brought against both the manufacturers and the dealer who built the car and promoted the car for sale as well, under the S52 of the Trade Practices Act, 19741. The act clearly intends the protection of consumers by prohibiting corporations in trade or commerce in taking steps that are misleading or deceptive or is likely to mislead or deceive. S52 defines misleading or deceptive conduct as follows2,              (1)  “A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1). s 53 of the Trade Practices Act, warns clearly against false representation in regard to the supply of goods3. The relevant clauses would be4: 1. the product should be having a particular price [s 53 (e)] 2. Being available [s 53 (ea)] In keeping with these definitions the first clear injunction that could be brought against the manufacturer given the fact that the cars that they made in favor of the car were astounding when where truth was concerned, the car was not the best car in the world. Also, one would have to understand the fact that the conduct of the manufacturer was misleading given the fact that the bills and the expense explanations and the representative actions when Michael complained were not similar. While they charged him in the capacity of his apartment being 200 sq.ft., the representative stated that the tiles used were double the cost of the tiles that he had decided on. Further, Section 12DA of the Australian Securities and Investment Commission Act 2001 prohibits misleading or deceptive conduct in financial services5. The doctrine aims primarily to provide consumer protection by preventing businesses from misleading their customers. However, it extends to all situations in the course of trade or commerce. A range of remedies are available in the event of misleading or deceptive conduct. In Collins Trading co Pty Ltd v Maher [1969] VR 20 it was held that an agreement made at the defendants’ for the supply and installation of a heater was a contract for or with respect to the sale of goods within the meaning of the original Victorian Door to Door sales Act6. This is also applicable in the case in point given the fact that tile installation agreement was in essence a contract that the two parties had entered into. In this case therefore, Mr. Gable could also sue Versatile Ceramics under the statutory condition created by the Act, and sue for damages at common law. Australian law provides that a person who knowingly or recklessly makes a misrepresentation concerning a product may be liable in the tort of deceit [Derry v Peck (1889) 14 App Cas 337]. A plaintiff would be entitled to recover any loss or damage suffered as a consequence if such fraud, notwithstanding that the misrepresentation was only a partial inducement to conduct which resulted in loss or damage, and notwithstanding that the misrepresentation was communicated to a class of persons rather than to the plaintiff personally [Richardson v Silver (1873) LR 9 QB 34]. Statutory provisions in force in the Commonwealth and in the states and territories of Australia also create liability for misleading or deceptive conduct in relation to the promotion or supply of products. The most important of these is section 52 of the federal Trade Practices Act 1974 (CTH), which prohibits a corporation from engaging in conduct in trade or commerce which is misleading or deceptive or is at least likely to mislead or deceive. Liability may arise in cases where a defendant intended to commit a fraud and where the defendant’s misleading or deceptive conduct was unintentional or inadvertent [Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organizations (1993) ATPR 41-199]. One would need to understand the fact that breach of Section 52 of the Trade Practices Act is not a criminal offence. Civil claims for damages or other forms of relief may be brought by persons who can prove that loss or damage, such as personal injury was caused by misleading or deceptive conduct. Alternatively any person which would include competitors consumer groups and the federal Australian Competition and Consumer Commission may seek an injunction to prohibit misleading or deceptive conduct or seek orders for the correction of misleading advertising. Also, the Trade Practices Act 1974 (CTH) prohibits corporations from making false or misleading representations in trade or commerce, in connection with the supply or possible supply of products or in connection with their promotion, concerning their standard, quality, value or history [Hartnell v Sharp Corp of Australia Pty Ltd (1975) 5 ALR 493; Brown v Riverstone Meat Co Ltd (1985) 60 ALR 595]; their performance characteristics, accessories, uses or benefits [Larmer v Dame Lighting Pty Ltd (1978) 29 FLR 490; Ducret v Nissan Motor Co (Australia) Pty Ltd (1979) 38 FLR 126]; their price, the availability of repair facilities and spare parts [TPA s53 e(a)]; their place of origin, the need for products, or concerning the existence, exclusion or effect of any conditioning, warranty, guarantee, right or remedy pertaining to products. The Trade Practices Act also prohibits corporations from engaging in conduct in trade or commerce which is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity of products. Breach of these prohibitions would automatically expose manufacturers and other product suppliers to civil claims and to criminal prosecution, with fines not in excess of Aus $1, 100, 000 in the case of corporations and fines not exceeding Aus $ 220, 000 in the case of individuals (TPA, s79). It must also be noted that in cases where the problem is in reference to a scenario of comparative advertising then one would have to carry out an identification of and attempt to explain the relevant sections of TPA that work in relation to the topic. Under the various nuances of section 52, advertisers would not be held liable for a breach or of misrepresentation in cases where the product is similar to that which has been advertised, also there must be a disclosure of differences. This disclosure of relevant information would need to be able to achieve an accurate information. In the context of the manufacturer therefore, in cases where the product is not of merchantable quality, the courts would need to accept the fact that the manufacturer is at fault as a party and if of opinion that defect should be remedied by manufacturer, make orders requiring manufacturer to pay buyer an amount equal to an estimate of cost of remedying defect or requiring manufacturer to remedy defect plus any other ancillary orders as seem proper7. A four step approach was suggested In Taco Bell Inc. v. Taco Bell Pty Ltd (1982) 42 ALR 177, where the Australian Federal Court suggested, that new decisions would need to first Identify the relevant section of the public who may be misled or deceived, find evidence that consumers are in fact suffering from a misconception may be persuasive but is not essential, and it is essential that the misconception has arisen as a result of the conduct complained of and not some other factor. In the context of this case, therefore the consumer was misled by the dealer who promoted the product, first as being the best in the world as second with respect to the car in question. Reference: Graw, Lenard and Parker., (2009). Understanding Business Law. Tata McGraw Hill. Unit3-. Pp120-153 Read More