Australian Consumer Law : Essay
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Added on 2020-07-22
Australian Consumer Law : Essay
Added on 2020-07-22
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AUSTRALIAN CONSUMER LAW
TABLE OF CONTENTSINTRODUCTION ..........................................................................................................................1MAIN BODY...................................................................................................................................1CONCLUSION..............................................................................................................................14REFERENCES..............................................................................................................................16
INTRODUCTION Australian Consumer Law (ACL) is a uniform legislation set out in, schedule 2 of theCompetition and Consumer Act 2010 that aims to protect consumer rights. It includes statutoryprovisions regarding unfair contractual terms, product safety, guaranteeing rights of thecustomers and others. It is applicable in all the states and territories of the country, while all thetransactions that are made before 1st January 2011 are dealt according to the previously appliedlegislation. Australian Competition and Consumer Commission (ACCC) is the administrativeauthority for the ACL while Australian Securities and Investment Commission (ASIC) handle itsfinancial matters. Section 18 of ACL includes legal regulations to prevent the occurrence ofmisleading & deceptive conduct. However, Passing off, on the other side, includes IntellectualProperty Law, unlike section 18, it focuses on protecting traders. The key motivation of currentessay is to investigate necessary advantages and disadvantages of taking an action under sec 18instead of commencing an action under the tort law of passing off. Besides this, section 18 alsowill be compared to sec 29 of the ACL with their benefits and drawbacks. Lastly, the essayparticularly targets on separate misleading conduct under ASIC 2001 and Corporation Act 2001. MAIN BODYAdvantages and disadvantages of section 18 of ACL instead of tort of passing offACL came into force on 1st January 2011 by replacing previously applied 20 differentcustomer laws across all the states & territories and Commonwealth. It includes 5 chapters andsets out statutory rules and regulations targeting protection of consumer rights against all theunfair terms and misleading action by people (The Australian Consumer Law, 2018)1. Section 18of ACL includes in chapter 2 that sets out statutory provisions to protection consumers againstfor misleading or deceptive conduct. As per the section, a person must not involve or engage inany such conduct that is considered misleading r deceptive. It is likely to that of section 52 of theTrade Practice Act (TPA), 1974 excluding an only difference that is section 52 is aboutcorporation’s conduct whilst s 18 concerned with conduct of a person. Rares commented thatcomplexity is a major difficulty evident in ACL due to overlapping. He stated that TPA appliedto the trading & financial corporation with limited reach to persons means individuals however;1The Australian Consumer Law. 2018. [Online]. Available through: < http://consumerlaw.gov.au/the-australian-consumer-law/>.
ACL had extended its reach to individuals. In order to apply section 18, there are four set ofrequirement, that is there must be a person, involved in trading or commence activities, engagedin a conduct that must be misleading & deceptive (Corones, 2011)2. Thus, an action under thissection is a step to protect all the consumers and prohibits people to not engage in any deceptiveconduct. By contrast to this, the tort of passing off settle disputes among business to business. Itis an action taken when a business is suggested wrongly in the course of commerce and trade orwith goods that are damage or threat of damage of interest of proprietor resultant repudiatingtheir reputation & goodwill. In order to succeed an action under the tort law of passing off, threeelements must be proven includes goodwill, misrepresentation and damage. Evidencing it fromtont of the popular case law of tort of passing off, Frank Reddaway Ltd V George Banham 1896,plaintiff was a belting manufacturer who sold Camel Hair Belting. Reddaway’s employee namedGeorge Banham started his own business of machine belting, named “Camel Hair Belting”.Reddaway Ltd sued a case against him arguing that a considerable proportion of the customerrecognized the mentioned product in his name. Besides this, many people confused about it, theCourt of Appeal held decisions that the name was descriptive whereas House of Lord helddecisions that Camel hair Belting that is a descriptive name has secondary meaning, hence, it isprotected under passing off (Reddaway and Co. Ltd V Banham.1896, 2018)3. Similarly, according to the decision made by Lord Diplock in the case of Erven BV VTowsend & Sons Ltd, the tort of passing off includes only those claims, in which, trader hadmade some misrepresentation to the consumers in the course of trade with an intention to harmbusiness goodwill and caused actual damage of the trader towards whom action was taken(Erven Warnick Besloten Vs J. Townend and Sons Ltd 1979, 2017). Bennett in Natural Waters of Viti Ltd V Dayals Artesian Waters Ltd case law stated thatit is necessary to prove that packaging, get-up, brand name, shape and other element must berelated to the product and hold business reputation. Thus, it is necessary that get-up is uniqueinstead of merely functional, common and descriptive. Besides this, if a person misrepresentsany goods or services as being that of plaintiff, such misrepresentation creates negative image in2Corones, S.G., 2011.The Australian consumer law. Thomson Reuters Lawbook Co.3Reddaway and Co. Ltd V Banham.1896, 2018. [Online]. Available through: < http://swarb.co.uk/reddaway-and-co-ltd-v-banham-and-co-ltd-hl-1896/>.
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