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Australian Consumer Law

ISSUE:

“Steven’s Art and antiques- The Finest in Collectibles-Internationally Recognised Artists” was an advertisement published by Steven in order to sell collectable items. Bea, an amateur art collector, was misguided by the advertisement. Steven misguided Bea by telling him the original price of the painting was $40,000 and offered him the painting is $4,000. Bea bought a painting in $4,000 and received a damaged painting on which the cost of his repairs was $100. Bea found that the painting which he bought was made by “Arthur Master” a local painter and its original cost was $400.

Rule:

According to section 18, of the ACL (Australian Consumer Law) mentioned in schedule 2 of the Competition and Consumer Act 2010 restricts any trade or corporation that misleads. Besides, the Fair Trading Act 1987 emphasizes Fair trading practices and assists in enforcing ACL. Furthermore, misleading or deceptive conduct applies to such cases which primarily provides consumer protection by restricting businesses from misleading their customers. Steven is found guilty under section 18 of Australian consumer law for following deceptive and misleading trade practice. Under section 54 of ACL, Steven is found guilty of supplying defective item having no quality guarantee and selling a product below acceptable quality. Section 18(1) and 29(1) (m) of the ACL specifies misrepresentation of the prices, for which Bee got mislead by Steven’s offer of selling a painting of worth $40,000 in $4,000. Moreover, Bea received a product which was damaged upon delivery done by Stephen that violates product guarantee mentioned under the Section 60, which guarantees that a service, commerce or trade should be rendered with due care and skill.

Application

Under section 18, Steven’s Art and antiques have breached consumer law by publishing misleading advertisements that mislead/deceived Bea. The misleading advertisement conduct distorted Bea’s choice of purchasing artefacts and collectables. In case of (Australian Competition v TPG Internet Pty Ltd, 2013), the high court bench (French CJ, Cernan, Bell and Keane JJ; Gageler J dissenting) fined a pecuniary penalty of $2 million against TPG of publishing misleading Headline together with a disclaimer. The judge’s bench recommended such misleading advertisement as primary cases of violation of section 18 under which correct information is not being produced by the company’s. Furthermore, the judges recommended advertisers inappropriate selection of words in advertisements which brings primary impression to a consumer for any service, goods or a product. The case depicts deterrence related to offending behaviour of advertisements and entirely is inconsistency for the purpose of consumer protection.

Under section 54, Steven was found to breach the consumer’s guarantee of sold products, services or goods delivered on time. Steven had delayed the deliverer of the painting due to which it was damaged and took another $100 from Bea’s pocket to repair the painting. In the case, (FAI v Australian Hospital, 2011), the judgement was given in the favours of the insurance company customers by the bench of judges (McHugh, Gummow and Hayne JJ.). The judges found that the insurance company was not able to deliver consumer guarantee of its service sold in the time it should be delivered and thus held the company responsible for providing services not on time.

Steven is also found to breach the ACL under section 60, which guarantee a customer of the products, service or goods to be rendered with due care and skill. In the case (Moore v Scenic, 2017) where the court decision was in favour of the cruise company and not Mr Moore. Mr Moore alleged the cruise service that, he with his wife was not allowed the exact seat that they booked prior to the cruise and thus filed a case against the cruise company for the violation of section 60. The judges did not held the cruise company responsible for not providing the exact seat because section 60 restricts the law to be a violation of the guarantee. In this case, Mr Moore and his wife were allowed other seats and the standard of the services were founded to be equivalent. But the court actually alleged the cruise under the sections 5B and 5C where the cruise owners were found to violate the common law of negligence. Steven thus can be alleged under Section 5B and 5C for violating common law of negligence.

Section 18, which holds for misconduct and deceptive cases alleges Steven of publishing a misleading advertisement in order to sell his collectable items. Steven can get relief from the court if he can prove in the court that his role in the scenario was merely a coincidence, and Steven was not the actual person that had written the misleading advertisements. In the case, (Google v Australian Competition, 2013) in which Google was alleged guilty of publishing sponsored links of competitors of a similar business when it was searched for some other businesses was held not responsible for the court. The court found that on behalf of Google Inc., other businesses were actually the publishers of the advertisements and thus, Google’s program was only recommending them to its customers. In this case, if Steven will be able to prove that the painting was actually bought by him from some other person having marked as an international collectable item by them, then Steven could not be held guilty of the misconduct or deceptive practice. However, the person who actually did the misconduct cannot be saved and the court shall hold him responsible for breach of section 18 of the Australian Consumer Law.

Under section 54, Stephen can argue the decision of the court in the case against (FAI v Perry, 1993) where the jurisdiction was given in favour of the insurance company. In this case, where the customers were not able to get their return due to late claim was against them. Steven can argue his position in front of the court about Bea’s unavailability of receiving the product when it was not damaged.

Conclusion:

Steven is also found to breach the ACL under section 60, which guarantee a customer of the products, service or goods to be rendered with due care and skill. In the case (Moore v Scenic Tours Pty Limited, 2017) where the court decision was in favour of the cruise company and not Mr Moore. Mr Moore alleged the cruise service that, he with his wife was not allowed the exact seat that they booked prior to the cruise and thus filed a case against the cruise company for the violation of section 60. The judges did not held the cruise company responsible for not providing the exact seat because section 60 restricts the law to be a violation of the guarantee. In this case, Mr Moore and his wife were allowed other seats and the standard of the services were founded to be equivalent.

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