Comparing Australian Consumer Law: Section 18, 29, and Passing Off

This essay provides a comprehensive analysis of the Australian Consumer Law (ACL), specifically focusing on Section 18 and its comparison to the tort of Passing Off and Section 29. The introduction establishes the ACL's role in protecting consumer rights, administered by the ACCC and ASIC, and highlights the core issue of misleading and deceptive conduct under Section 18. The main body delves into the advantages and disadvantages of taking action under Section 18 versus the tort of Passing Off, emphasizing the burden of proof, scope of protection, and available remedies. It also examines the differences between Section 18 and Section 29, considering their specific prohibitions and application within the framework of fair trade practices. The essay draws on relevant case law, such as Frank Reddaway Ltd V George Banham and Equity Access Pty Ltd Vs Westpac Banking Corporation, to illustrate key concepts and legal principles. The analysis covers the distinctions between the general provisions of Section 18 and the specific prohibitions outlined in Section 29, emphasizing their differing jurisdictions and operational scopes. The conclusion summarizes the key findings, highlighting the complexities and nuances of navigating the ACL to protect consumer rights and ensure fair market practices.

AUSTRALIAN CONSUMER LAW

TABLE OF CONTENTS
INTRODUCTION ..........................................................................................................................1
MAIN BODY...................................................................................................................................1
CONCLUSION..............................................................................................................................14
REFERENCES..............................................................................................................................16

INTRODUCTION
Australian Consumer Law (ACL) is a uniform legislation set out in, schedule 2 of the
Competition and Consumer Act 2010 that aims to protect consumer rights. It includes statutory
provisions regarding unfair contractual terms, product safety, guaranteeing rights of the
customers and others. It is applicable in all the states and territories of the country, while all the
transactions that are made before 1st January 2011 are dealt according to the previously applied
legislation. Australian Competition and Consumer Commission (ACCC) is the administrative
authority for the ACL while Australian Securities and Investment Commission (ASIC) handle its
financial matters. Section 18 of ACL includes legal regulations to prevent the occurrence of
misleading & deceptive conduct. However, Passing off, on the other side, includes Intellectual
Property Law, unlike section 18, it focuses on protecting traders. The key motivation of current
essay is to investigate necessary advantages and disadvantages of taking an action under sec 18
instead of commencing an action under the tort law of passing off. Besides this, section 18 also
will be compared to sec 29 of the ACL with their benefits and drawbacks. Lastly, the essay
particularly targets on separate misleading conduct under ASIC 2001 and Corporation Act 2001.
MAIN BODY
Advantages and disadvantages of section 18 of ACL instead of tort of passing off
ACL came into force on 1st January 2011 by replacing previously applied 20 different
customer laws across all the states & territories and Commonwealth. It includes 5 chapters and
sets out statutory rules and regulations targeting protection of consumer rights against all the
unfair terms and misleading action by people (The Australian Consumer Law, 2018)1. Section 18
of ACL includes in chapter 2 that sets out statutory provisions to protection consumers against
for misleading or deceptive conduct. As per the section, a person must not involve or engage in
any such conduct that is considered misleading r deceptive. It is likely to that of section 52 of the
Trade Practice Act (TPA), 1974 excluding an only difference that is section 52 is about
corporation’s conduct whilst s 18 concerned with conduct of a person. Rares commented that
complexity is a major difficulty evident in ACL due to overlapping. He stated that TPA applied
to the trading & financial corporation with limited reach to persons means individuals however;
1 The 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 of
requirement, that is there must be a person, involved in trading or commence activities, engaged
in a conduct that must be misleading & deceptive (Corones, 2011)2. Thus, an action under this
section is a step to protect all the consumers and prohibits people to not engage in any deceptive
conduct. By contrast to this, the tort of passing off settle disputes among business to business. It
is an action taken when a business is suggested wrongly in the course of commerce and trade or
with goods that are damage or threat of damage of interest of proprietor resultant repudiating
their reputation & goodwill. In order to succeed an action under the tort law of passing off, three
elements must be proven includes goodwill, misrepresentation and damage. Evidencing it from
tont 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 named
George 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 customer
recognized the mentioned product in his name. Besides this, many people confused about it, the
Court of Appeal held decisions that the name was descriptive whereas House of Lord held
decisions that Camel hair Belting that is a descriptive name has secondary meaning, hence, it is
protected 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 V
Towsend & Sons Ltd, the tort of passing off includes only those claims, in which, trader had
made some misrepresentation to the consumers in the course of trade with an intention to harm
business 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 that
it is necessary to prove that packaging, get-up, brand name, shape and other element must be
related to the product and hold business reputation. Thus, it is necessary that get-up is unique
instead of merely functional, common and descriptive. Besides this, if a person misrepresents
any goods or services as being that of plaintiff, such misrepresentation creates negative image in
2 Corones, S.G., 2011. The Australian consumer law. Thomson Reuters Lawbook Co.
3 Reddaway 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/>.

the consumer mind. The last element to be prove is actual damage due to incorrect belief or
misrepresentation of source of goods.
In the event of successful plaintiff under tort of passing off, court may either of three
remedies that are injunction, damages and exemplary damages. Unlike this, if a plaintiff
successfully proves the misleading and deceptive conduct under section 18 of ACL, court may
order an injunction and compensatory damages (Davison, Monotti and Wiseman, 20154). An
overlap is recognised between section 18 and tort of passing off as number of requisite elements
in both of these is similar to each other which arises complexity in the Australian Law. Still,
there are various situations where both the provisions do not coincides each other as s18 and
passing off have different origin and also the interest and purpose of statutory bodies are
contrasting (Groves and Lee, 20075).
Section 18 of ACl has certain benefits over tort of passing off, one of the main important
benefits is that under s18, plaintiff just need to prove that person engaged in trade and commence
had made any misleading or deceptive conduct. However, by contrast to this, in order to make
claim successful under passing off, plaintiff need to prove two additional elements that are claim
is subjected to the business reputation and business actually suffered or likely to suffer loss of
goodwill. Thus, passing off requires existence of business or goodwill, consequently,
comparatively to s18., the burden of proof on plaintiff is greater in passing off. Thus, it can be
said that s18 provides a broader and overarching protection against unregistered trademarks
while passing off has narrower scope (Svantesson and Clarke, 20136). The case of Equity Access
Pty Ltd Vs Westpac Banking Corporation, clearly state that scope of operation and action under
section former section 52 of TPA is wider than that of principles covered in passing off.
Moreover, passing off is just attempted to protect property rights in the course of business
or goodwill, on the contrary side, ACL protects consumer as well as public interest. Despite this,
as plaintiff need to prove additional circumstances in the court for passing off, thus, it clearly
means that plaintiff requires more time to prove such elements and also occurs higher
4 Davison, M., Monotti, A. and Wiseman, L., 2015. Australian intellectual property law. Cambridge
University Press.
5 Groves, M. and Lee, H.P., 2007. Australian administrative law: Fundamentals, principles and doctrines.
Cambridge University Press.
6 Svantesson, D. and Clarke, R., 2013. The Trade Practices Act: A Hard Act to Follow: Online Consumers and
the New Australian Consumer Law Landscape. James Cook UL Rev. 20. pp.85-92.

expenditures. However, having a registered trademark saves plaintiff time and spending, when,
he or she does not succeed in proving all the required onerous elements. In addition to this,
Common law principles restricts passing off whereas it is not so with section 18 of ACL (Butt,
20137). Although, the requirement of exclusive reputation does not exist in section 18, but it is
necessary to state that presence or absence of business reputation or goodwill plays a
considerable role in deciding whether customer had been mislead or deceived (Martin and
Turner, 2005).
Despite the advantages, there are certain limitations of taking an action under section 18
of the law that are unlike passing off, exemplary damage remedy is not available under this
section. Thus, plaintiff will be only able to claim to recover the damage or loss as a result of
defendant misleading and deceptive action. Additional payments targeting punishing or deterring
defendant are not available in s18. Thus, it can be said that it limits the total claim amount for the
damages suffered by plaintiff. In an event, when plaintiff do not become able to prove all the
onerous elements to prove the claim under tort of passing off, yet, he or she can succeed claim
under section 18 but it might be possible that he or she .is not adequately compensated.
Advantages and disadvantages of section 18 of ACL instead of section 29 of ACL
In accordance with the framework of Australian Consumer law is to protect the consumer
rights and facilitate fair trade practices in the market. However, the main motive is to provide a
fair judgement towards any issue and fraudulent acts. As per section 29 of this act which help in
facilitating the appropriate judgement for false and misleading representation about any product
and services offered by a firm to a consumer. It helps in protecting 14 major issues which are
need to be overcome and have the fair jurisdiction towards such issues (Australian Consumer
Law (Cth), 20118). These are the misrepresentation of goods and services which are being
represented by and individual in terms with making the sale of it as well as taking advantages
from consumers. Therefore, it will be treated as fraud in case the buyers feel cheated and they
have negative image of such issues. The law helps in protecting the misrepresentation in the
market about the standard and quality of goods and services these are need to be presented
7 Butt, P., 2013. Modern legal drafting: A guide to using clearer language. Cambridge University Press.
8 Australian Consumer Law (Cth). 2011. [Online]. Available through
:<https://www.australiancontractlaw.com/legislation/cthacl.html>.

appropriately to the customers (The Australian Consumer Law, 20189). It must contains all the
necessary details such as manufacturing date, price, expiry date, quantity, standard and various
authenticated and essential marks. Thus, if the consumer feels cheated then they can sue the
organisation on behalf of it.
However, in accordance with the section 18 of the same act which represents that destroy
and mislead incurred while promoting the products and services. It leads distraction to
consumers in terms of purchasing the products as well as affects their choices toward goods and
services. These will lead in reducing the competition in the market as well as affects in increment
in the consumer costs (Olsen, 201710). Therefore, the prices are to be set by an organisation on
the basis of buyers requirements. Thus, here the misleading and distorting acts incurred on the
basis of promotion while in section 29 the misleading and false representation of products and
services among consumers affect their choice after the completion of trade practices among
consumers and organisation (How the Australian Consumer Law protects you from unfair
practices of corporations, 201711). However, there have been various differences in the
framework and rules of section 8 and section 29 of the act with consideration of the Trade
Practice Act 1974 in section 52 and 53. This acts lies over facilitating the rules and regulations
over the promotion of the specific kinds of products and services which engaged and
organisation to trade and commerce will be treat as a breach of act. In these regards the Swanson
committee made several comments in the report to Minister of business and consumer affairs that
section 53 of TPA, 1974 should conduct under criminal law sanctions which will help in
prohibiting the false and misleading conducts (Parker and et.al., 201712). Further, S 53 is leading
9 The Australian Consumer Law. 2018. [Online]. Available through: < http://consumerlaw.gov.au/the-
australian-consumer-law/>.
10 Olsen, M., 2017. Shedding light on market definition in trade mark cases: Clipsal Australia Pty Ltd v Clipso
Electrical Pty Ltd. Journal of Intellectual Property Law & Practice.
11 How the Australian Consumer Law protects you from unfair practices of corporations. 2017. [Online].
Available through :<http://www.findlaw.com.au/articles/4371/how-the-australian-consumer-law-protects-
you-from-.aspx>.
12 Parker, L. and et.al., 2017. A health app developer’s guide to law and policy: a multi-sector policy analysis.
BMC medical informatics and decision making. 17(1). p.141.

to abuse and potential harm while S 52 is to appropriate approach and it must be considered
under civil nature of the law.
Therefore, there will be key differences of these sections which are need to be considered
that sections 18 is a general provisions and cover the wide rang of obstacles while S 29 is
belongs to the specific prohibitions over the issues. Therefore, it can be said that these provisions
are having differences in their jurisdiction as well as they are different in operations. S 18 will be
helpful in context with engaging in conduct while S 29 only make representations to any issue.
The motive of both the section to resolve the fraud and false misconducts and facilitate the fair
trade practice among buyers and entities (False or misleading representations, 201813). On the
other side, section 18 is and civil provision which are normally resolved over local legislatures
and that represents the quick and prompt justification and solution to any issue. In accordance
with S 29 this follows both the criminal and civil provisions because the implication of this act is
after the trade and business was commenced between buyers and dealers (Stannard, 201714). It
acts as per the consumers fell cheated and misleads in accordance with the quality, grade and
value of the products and service. The judgement and justification will be based on concrete
evidence. In section 18 there will be requirement of standard proof which balances the
probabilities of the issues. On the other side, in section 151 this is the offensive provision and
require as proof against the reasonable doubts (Mazzone and et.al., 201715). Therefore, it can be
said that such provisions are beneficial in terms of leading the fair judgement towards and
misconduct and fraudulent act incurred in the daily trade practices among consumers as well as
dealers of the goods and services.
Therefore, these are the main responsibilities of an organisation to facilitate the goods
and services with proper research made behinds of it. Mainly in the case of pharmaceutical
industries they are essentially bound to have proper investigation and some research made over
the drugs. It must be completed before the products are delivered in the market. Therefore, for
13 False or misleading representations. 2018. [Online]. Available through
:<https://www.lawhandbook.sa.gov.au/ch10s03s03s03.php>.
14 Stannard, J., 2017. ASIC update: Fee and cost disclosure, whistleblowers, penalties and a fintech regulatory
sandbox. Superfunds Magazine. (430). p.10.
15 Mazzone, G. L. and et.al., 2017. ASIC channel inhibition enhances excitotoxic neuronal death in an in vitro
model of spinal cord injury. Neuroscience. 343. pp.398-410.

the pharmaceutical industries is an essential part of the operation that the drugs are made to save
a life of person as well as give them the adequate medication to overcome with any disease. In
these regard it is essential to have better research and investigations of such products and
services (Bacina and Kassra, 201716). There are several drugs available in the market so as the
substitute products which are affecting the brand image of an organisation as well as health of
consumers. Here the consumers can sue the company as they were cheated and mislead towards
the quality of the products. However, this reflects in the case of Reckitt Benckiser (Australia) Pty
Ltd v ACCC [2017]17 where the organisation has cheated buyers as per they have made drugs for
the specific pain which is targeting falsely description of Nurofen Products and it was sanction
under the section 18 and 33 of ACL. There ore, in this case the consumer demanded to have
refund of their money as these drugs are too expensive and many of the buyers belies that it will
help them in recovering but they were cheated.
In context with the case of ACCC v A Whistle & Co (1979) Pty Ltd18 which was heard
and the justification was felicitated under the section 29 of ACL act. Therefore, here the
company is making household products such as Electro-dry carpet cleaning business. Issues rises
when the professional of this entity has misled the consumers by presenting a fake testimonial all
over the various sites and all promotional sources. In this regard the court has punished the
organisation in terms of prestressing a fake testimonial to the society and they have been charge
for the penalty of $215000 (Chang, J. C. and et.al., 201819). This action was made by Australian
Competition and Consumer Commission in against the publication of the fake testimonials over
the various internet site and fooling consumers. However, in this section the cases are to be
resolved and legal solution will be presented to the individuals on the basis of specific issues.
16 Bacina, M. and Kassra, S., 2017. Banking and technology law: Asic guidance on crypto-currency token
sales: A ban or sensible regulation?. LSJ: Law Society of NSW Journal. (39). p.86.
17 Reckitt Benckiser (Australia) Pty Ltd v ACCC [2017] HCASL 86
18 ACCC v A Whistle & Co (1979) Pty Ltd [2015] FCA 1447
19 Chang, J.C., Shulmeister, J., Gröcke, D. R. and Woodward, C. A., 2018. Toward more accurate temperature
reconstructions based on oxygen isotopes of subfossil chironomid head‐capsules in Australia. Limnology and
Oceanography. 63(1). pp.295-307.

Misleading conduct provisions under section 12DA of Australian Securities and misleading
Commission Act 2001
As per the section 12DA of ASIC Act which will be helpful in terms of making the
adequate jurisdiction for Misleading conducts. However, and organisation is responsible for
facilitating the adequate informations to its stakeholders. In accordance with the case of ASIV v
MacDonald and others20 which represents that the organisation has facilitates the wrong and
unlawful information in market relevant with the dealings of shares. The act highlighted and
operates in the broader scenes which will be effective in terms of making the adequate
judgement to any obstacles. These are main issues which are generally incurred in the
operational aspects of proprietary companies for reaching ambit of the financial services and
products (Olsen, 201721). This act contains various sections and norms and conditions which are
need to be followed and implicated as it helps in preventing the society with any obstacles and
any problems. In accordance with the section 12DA of the act which helps in providing a
provision that a person cannot engaged himself in trade and commerce or any financial services
who is misleading the society with incorrect and in appropriate informations. However, it will be
beneficial for the organisations to have the adequate framework and trade practices throughout
the operational period (Misleading and deceptive conduct in the corporate sphere, 201022).
However, in context with the same the firm need to have proper disclosure of the financial
statements, licensing and disclose the informations to the users of such data set. This information
is very helpful to the shareholders and investors to make the fruitful investments in the
organisation as well as analyse the profitability of the firm in terms of having the dividend
advantages. However, in accordance with this case MacDonald's was punished for facilitating the
wrong informations about the shares as well as misleading the society.
However, these are the responsibilities and duties of the directors of an organisation that
they must provide the adequate informations to the stakeholders on the continues basis. This will
20 Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287
21 Olsen, M., 2017. Shedding light on market definition in trade mark cases: Clipsal Australia Pty Ltd v Clipso
Electrical Pty Ltd. Journal of Intellectual Property Law & Practice.
22 Misleading and deceptive conduct in the corporate sphere. 2010. [Online]. Available through
:<http://www.gadens.com/publications/Pages/Misleading-and-deceptive-conduct-in-the-corporate-
sphere.aspx>.

be beneficial for the stakeholders such as government, banks, consumers, investors and the
internal stakeholders to have the appropriate informations (Parker and et.al., 201723). Thus, if the
society receive and wrong and unlawful informations that led them to the in accurate
informations about the firm's financial health. These are their responsibilities of the directors and
if they do not meet the requirements then stakeholders has full right to suit a case against the
directors of the organisation in considerations of misleading them. On the other side, in
accordance with the case of ASIC v Camelot Derivatives Pty Limited24 which represents that the
firm has been making the inadequate disclosure to the shareholders about the derivatives. The
operational function of the firm is to help the other corporations and individuals in terms of
facilitating the financial products which includes derivatives. Therefore, the firm has faced losses
in its trading activities in trading markets on which the client of this organisation has claimed
against the directors that they have misled them and charged the excessive brokerage
commission to them (Stannard, 201725).
The directors of the Camelot has been punished and engaged in the conduct of misleading
or deceptive in contravention of the section 1041H of CA act 200126 and 12DA of ASIC act.
However, I addition to these the section 912A(1)(a) of corporation acts has facilitated the
justification that the directors need to be honest and effective while presenting the disclosure of
the financial health in each year (Australian Securities and Investments Commission Act 2001,
201727). Therefore, in relations with such cases and the judgements facilitated by the jurisdiction,
it can be determined that these are the main responsibilities and priority of the organisation to
make the adequate disclosure of the financial ability among the stakeholders. The government
seeks this information in terms of analysing tax payments made by a firm in an operational
period. The information’s used by banks in terms of analysing the probability as well as the
23 Parker, L. and et.al., 2017. A health app developer’s guide to law and policy: a multi-sector policy analysis.
BMC medical informatics and decision making. 17(1). p.141.
24 Australian Securities and Investments Commission v Camelot Derivatives Pty Limited (In Liquidation) [2012]
FCA 414
25 Stannard, J., 2017. ASIC update: Fee and cost disclosure, whistleblowers, penalties and a fintech regulatory
sandbox. Superfunds Magazine. (430). p.10.
26 Corporations Act 2001 [Cth]
27 Australian Securities and Investments Commission Act 2001. 2017. [Online]. Avaialble through
:<https://www.legislation.gov.au/Details/C2017C00326>.

interest payment made by the firms in this relation (Bacina and Kassra, 201728). These are the
main financial bodies of the environment which need to be facilitated with the adequate
information regarding the financial health of the firm.
On the other side the information’s which are being used by the investors to make their
investment decisions in the firm over the profitability as well as efficiency to meet the dividend
payments. Therefore, it can be analyse that such information’s are to be facilitated by
organisation which are the prime responsibilities of the directors if they mislead the society than
they will be penalised and punished under section 12DA of ASIC act 2001. The use of these data
set in the organisation as to make the adequate decision about the operational performance as
well as planning for expansion (Mazzone and et.al., 201729). Therefore, in terms with both the
stakeholders of the firm internal and external it is necessary to have the proper information
regarding efficiency, profitability, liquidity and ability to make the short terms and long terms
payments. If the firm found in making the unlawful operations as well as facilitating the wrong
information to the users then they have right to suit the case against the coma pay as well as the
directors of the entity.
Misleading conduct provisions under section 670A, 728 and 1041H of the Corporations Act
2001
Corporation Act 2001 is an Australian Act that contains laws to deal with the business
entities operating in the country at interstate and federal level. It deals with various matters such
as company formation, operations, duties and liabilities of officers, fundraising and takeovers
and others (Corporation Act 2001, 201730). Section 670 A of the Corporation Act 2001 deals
with representation of misstatement or omission, buy-out documents, takeover and compulsory
acquisitions. As per sec. 670 A, an individual must not present bidder’s statement, takeover
offer, variation notice in takeover, target’s statement, notice of compulsory acquisition under sec.
28 Bacina, M. and Kassra, S., 2017. Banking and technology law: Asic guidance on crypto-currency token
sales: A ban or sensible regulation?. LSJ: Law Society of NSW Journal. (39). p.86.
29 Mazzone, G. L. and et.al., 2017. ASIC channel inhibition enhances excitotoxic neuronal death in an in vitro
model of spinal cord injury. Neuroscience. 343. pp.398-410.
30 Corporation Act 2001, 2017. [Online]. Available through: <
https://www.iknow.cch.com.au/document/atagUio487301sl14517119/corporations-act-2001-section-669-
asic-s-power-to-exempt-and-modify>.