Misleading and Deception - Essay Example

Misleading and Deception Name: Institution: Abstract The Australian consumer law is a provision for protection of consumers. The provision regulates or prohibits a range of unfair trade practices. The practices regulated by the law include the misleading and deceptive conduct, making of false representations in relation to the sale of goods and services, unconscionable conduct and finally unfair terms in consumer contracts. This paper aims at showing how the law can be used to bring action against misleading and deceptive conduct and unfair consumer contracts. Key words: misleading and deceptive Introduction Section 18 of the Australian consumer law (ACL) which is found in schedule two of the competition and consumer ACT 2010 contains the misleading and deceptive conduct that prohibits conduct by corporations in business which is misleading and deceptive. The provision major aim is to provide consumer protection by preventing businesses from misleading their customers and taking advantage of the customers (Albrecht, 1971). Section 18 (1) of the Australian Consumer Law deals with prohibition of misleading or deceptive conduct. The law is very clear that a person must not engage in a deceptive or misleading conduct when in trade or commerce. Section 18 is thought of in terms of consumer protection, but it is not limited to consumer protection only, it also applies to representations that happen in commercial transactions. A deception or misleading conduct victim is entitled to damages which include monetary compensation if a loss or damage is incurred due to the conduct (Corenes, 2011). Discussion Having booked an accommodation with Accommodation Noosa in advance for almost one year, I expected that I will enjoy the value of the money once in the hotel. However on arriving to the hotel it was utter surprise on being informed that there was double booking and I was referred to another accommodation which according to my me it did not meet my set standards. Can s18 of ACL be used to bring case against the accommodation Noose? It is intended that consumer protections of the ACL should apply across the entire economy, however there some exemptions in which the provision does not apply. The exemptions include the insurance contracts, gas, electricity or telecommunication services. This is so due to other Acts which were passed excluding the services from being part of the ACL. The insurance contracts Act 1984, Electricity industry act 2000, gas industry act 2001 and the energy retail code. The ACL, part of the section 18 has stipulated that a person in business must not in involve him or self in conduct that is misleading or deceptive to customer. Under the above given circumstances it is applicable to use s18 of ACL to bring action against the Accommodation Noose. In court, the plaintiff will be the complainant, who happens to be me and the accused, which is the defendant will be Accommodation Noose, for misleading and deception. In the Act the terms misleading are not defined and the law courts have not given sufficient definition of the same. It is the overall perception by the purported conduct that determines whether the accused is responsible for misleading and deception (Lon and Melvin, 1972). Misleading a person or client in business will include lying to the person, or having given inaccurate claims to the person, creating false impression that can lead the person to wrong decision or conclusion or omitting important information. A given corporation or person may engage in misleading or deception even if they have acted honestly and reasonably, thereby it is not of paramount importance to establish if the given businessman intended to mislead or deceive. The case of Accommodation Noose, the booking was made 12 months before and it is surprising since then no reviews were made on bookings to ensure that facility did not inconvenience the clients (Weatherill, 2005). It is right to argue that Accommodation Noose was not honest and not reasonable in referring me to another hotel even after having booked the accommodation with them for that long duration of time. It is outright that the defendant here was misleading and deceptive. First of all there was enough time to check on its bookings to establish any wrong bookings; it is also arguable that the Accommodation Noose withheld the information of double booking from me. They ought to have communicated the incidence long before my arrival to the facility, but they maintained silence. Therefore the court can objectively test whether the conduct of the accommodation Noose was misleading or deceptive to the plaintiff. The Accommodation Noose kept silent for the whole year about the double bookings (Howells, 2005). According to s18 of ACL, to some extent, silence can amount to misleading and deceptive conduct. The definition of conduct of silence in this provision is not like the definition in the common law. In the case of Accommodation Noose, there was issue of silence which stand to be tested by the court. An example of past case of misleading and deception in silence is outlined in the case of Black J in Demagogue against Ramensky. The Demagogue against Ramensky outlined the general rule for which silence may affect s18 claim (Russel, 2011). Demagogue a vendor of land sold a piece of land under false representation that the buyer had right to use a common driveway. In the case there was no common law between the parties, therefore silence was construed as conduct. According to Black J., there was a duty for the vendor to disclose and outlined that misleading and deceptive conduct under the s18 is a question of fact and uses statutory facts and circumstances test to examine whether there has been a breach. Failure to disclose the information is merely one of the factors of misconduct (Corenes, 2011). The misleading conduct provision is found under s18 of the ACL which give rise to civil liabilities. According to ACL’s part 3-1, numerous business practices perceived as false or misleading are prohibited, and this gives rise to criminal and civil liabilities. Division of ACL takes place between civil liabilities that are usually subject to chapter 3 and the criminal liabilities that are subject to chapter 4. However both the civil and the criminal liabilities comprise dealings undertaken with both the consumer and business (Peterson & Duke, 2009). Misleading or deceptive conduct is when one party induces another to enter a contract upon false impressions. The use of misleading or deceptive conduct is prohibited by the Australian Consumer Law, s18. According to the law, misleading or deceptive conduct occurs when a person or corporation in trade engages in a deceptive or misleading conduct. For a case to misleading or deceptive, the plaintiff must have been made into believing an erroneous assumption in the contract. The complainant should also prove that he relied on the misleading or deceptive conduct when entering the contract. In such cases silence will constitute misleading or deceptive conduct only if there is a duty of disclosure (Douglass and Gibson, 2011). The standard of measuring the effect of conduct entails the nature of the parties, nature of the transaction and what the parties knew, and the conduct itself. The s18 sets prohibitions and does not create liability itself. In a case where a party in a contract contravenes s18, the court may give injunctions, damages or orders for the sole purpose of compensating the injured party. Therefore if a person is to recover damages for the misleading conduct will do so under s236 (Australian Attorney General Department, 2009). For a conduct to be termed misleading it must have misled one party in the contract, the court has to determine whether the conduct is misleading, and what would be the likely effect of the conduct on the plaintiff. The inquiry, the court also determines whether the misleading conduct was addressed to public or a particular individual. If the case concerns an individual, the court will determine again if the individual was likely to be misled by considering the particular incidence and particular circumstances. The circumstances include the nature of the parties involved, their level of expertise, nature of the transactions, the relationship of the parties that is what each party knew about the other and the conduct itself (Coteana, 2005). Conclusion Taking to account the above knowledge of s18 of ACL, there was a breach of contract between Accommodation Noose and me. The breach was through silence in which the accommodation company never communicated to its client in time to inform of the problems in the bookings rather opted to choose another accommodation which was not appropriate for the client. This conduct hence became misleading on my part as client who had given the company ample time from the time since the date of booking to the date I reported to their offices. References Albrecht, R. A., 1971. Consumer Law. Boston: National Law Centre. Australian Attorney General Department, 2009. Australian Consumer Law: Fair Markets. Melbourne: Government Press. Coteana, C., 2005. Consumer Law and Unfair Trading Practices: Unfair Commercial Practices. Boston: Ashgate Publishing Ltd. Corenes, S., 2011. The Australian Consumer Law. Melbourne: Thomson Reuters. Douglass, F., and Gibson, C., 2011. A Business Law. Melbourne: Pearson Australia. Howells, E., 2005. Enforcement Provisions of Consumer Protection Law: International Comparison. London: Great Britain Library. Lon, L., and Melvin, A.E., 1972. Basic Contract Law. Sydney: Snippet Press. Paterson, R., and Duke, G., 2009. Contract: Cases and Materials. Melbourne: Law book Company. Russel, V., 2011. Miller’s Australian Competition and Consumer Law. Melbourne: Thomson Reuters. Weatherill, S., 2005. European Consumer Law and Policy. London: Elgar Publishing. Read More