Competition and Consumer Law - Australian Consumer Law - Representations by Silence
May/June 2012
Are you aware that you can be guilty of misleading and deceptive conduct under Section 18 of the Australian Consumer Law even when you remain silent in any given commercial or consumer context?
Many readers are familiar with the importance of avoiding misleading and deceptive conduct in business or consumer situations which might otherwise give rise to such a claim. But by silence?
By way of example, if someone asks you are there any snakes likely to be found on a particular tour and you do not answer the question or pass off the question as being a joke, the person you are dealing with might interpret that as being a representation that they will not have any problems with snakes, even though you might think that it is obvious and of course there is a risk of snakes anywhere in Australia.
Persons who are found to have misled or deceived under Section 18 can be liable for compensation for loss or damage suffered as a result of the breach, for rectification or other appropriate relief to remedy the situation and an injunction to restrain breaches. Imagine if that loss was a whole season of disgruntled inbound tourists from one region. The ACCC itself can also in some circumstances seek community service orders, probationary orders, disclosure and publication orders.
This type of conduct is frequently found to have occurred in the context of negotiations over contractual arrangements and so great care needs to be taken in the way in which you conduct your business.
Many readers are familiar with the importance of avoiding misleading and deceptive conduct in business or consumer situations which might otherwise give rise to such a claim. But by silence?
By way of example, if someone asks you are there any snakes likely to be found on a particular tour and you do not answer the question or pass off the question as being a joke, the person you are dealing with might interpret that as being a representation that they will not have any problems with snakes, even though you might think that it is obvious and of course there is a risk of snakes anywhere in Australia.
Persons who are found to have misled or deceived under Section 18 can be liable for compensation for loss or damage suffered as a result of the breach, for rectification or other appropriate relief to remedy the situation and an injunction to restrain breaches. Imagine if that loss was a whole season of disgruntled inbound tourists from one region. The ACCC itself can also in some circumstances seek community service orders, probationary orders, disclosure and publication orders.
This type of conduct is frequently found to have occurred in the context of negotiations over contractual arrangements and so great care needs to be taken in the way in which you conduct your business.
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John Graves
Principal Bradfield & Scott Lawyers Level 1, 175 Macquarie Street Sydney NSW 2000 Telephone: 9233 7299 Email: jgraves@bradscott.com.au |
Mat Henderson
Lawyer Bradfield & Scott Lawyers Level 1, 175 Macquarie Street Sydney NSW 2000 Telephone: 9233 7299 Email: mhenderson@bradscott.com.au |
