Australian Consumer Law: Misleading Conduct and Unconscionable Conduct

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Australian Consumer Law
Questions
09-Feb-18
(Student Details: )

Australian Consumer Law
Question 1
Heading
Section 18 Australian Consumer Law- misleading or deceptive conduct
Issue
Whether the provisions of ACL were breached by in this case by Kristof and Cameron, or not?
Law
In Australia, the Competition and Consumer Act, 20101 applies which safeguards the interests of
the consumers and also ensures that a healthy competition takes place in the nation. Schedule 2
of this act covers the consumer related provisions in particular and is known as the Australian
Consumer Law, herein referred to as ACL2. Section 18 of the ACL puts a restriction on the
people who are indulged in activities of trade or commerce from undertaking any such conduct
which could be characterised as misleading or deceptive, or where the effect of such conduct is
to mislead or deceive3. So, there is a need to refrain from making any such claims which could
possibly be in breach sections 18 of the ACL. Section 29 of ACL, provides that the individuals
need to refrain from making any false or misleading representation during trade or commerce in
context of goods or services4.
1 Competition and Consumer Act, 2010 (Cth)
2 Competition and Consumer Act 2010, sch 2
3 ACL, s18
4 ACL, s29
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Australian Consumer Law
Australian Competition and Consumer Commission v Kingisland Meatworks and Cellars Pty
Ltd5 is a case which provides importance guidance in context of place of origin of company or its
brand name, and the manner in which it could be deemed as deceptive and misleading, along
with being a false representation of the place of origin of goods. This issue stated that when the
place of origin is made use of by brand name or the company, a representation is put forth that
the product belongs to that place. As a result of this, there is a need for the majority part of goods
to be sourced from a single place. An obiter was given in this matter by Murphy J in which it
was provided that to hold a particular product to be sourced from a particular location, there was
a need for the same to be 70% of the product to come from such place. As a result of this,
breaches of the two quoted sections were upheld. This resulted in the court giving a declaration
of contravention, three year restricting, publishing of the corrective notice, and payment of
pecuniary penalty and ACCC’s costs6.
Application
In the given case study, the issue relates to the newspaper advertisement being misleading or
deceptive in order to breach section 18 of the ACL. In this context, the key matter is whether the
products of Kristof and that of Cameron could be deemed as local, in order to save penalties for
breach of the quoted section. In this context, 70% of the food of Kristof is sourced locally, and
90% of Cameron is sourced locally. Applying the obiter given by Murphy J in Australian
Competition and Consumer Commission v Kingisland Meatworks and Cellars Pty Ltd, it can be
stated that there was sufficient portion of the product being produced locally, as the mark of 70%
was attained by both of them.
5 [2012] FCA 859
6 Laura Hartley and Erin McGushin, Misleading company and brand names – ACCC v Kingisland Meatworks and
Cellars Pty Ltd – is your use of a place of origin in your company or brand name allowed? (28 November 2013)
<https://www.lexology.com/library/detail.aspx?g=227e4cfa-da8e-4b25-aae4-eb3c844fe601>
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