Misleading Conduct - notes and answers.docx

Misleading Conduct - notes and answers.docx - Misleading...

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Misleading Conduct : SMALL STEPS : Write “P sues under misleading and deceptive conduct under s18 of ACL” (note if the ACCC 行政 sues, need to say it has standing 可诉讼 ) Explain D is a person (or legal person 法人 ). State and describe that the D has Engaged 参与 in conduct 行为 ( if you think the P is likely to win, explain the conduct in a way that may sound misleading) Briefly explain how the conduct is in trade or commerce (eg selling business, goods, advertising, displaying brochures/catalogues) o “Trade or commerce” includes any business or professional activity (both for profit and not-for-profit). However, it does not include internal communications within a corporation, or private sales of property between individuals unless it is for a business activity. 贸易或商业”包括任何商业性或职业性的活动(包括盈利性和非营利 性)。但是,并不包括企业内的内部交流,或者个人之间的私人房屋买 卖,除非该买卖的目的是商业用途。 FIRST LARGE STEP : make it clear you understand the Taco Bell decision, which explains what is meant by “ misleading and deceptive conduct” . Do not copy it all out. In order to determine whether conduct is misleading, the court determines what would be the likely effect of the conduct on the ' audience ' (ie, the other party). For the purposes of this inquiry, it is often relevant whether the misleading conduct was addressed to the public at large or a particular individual. In Taco Company of Australia Inc v Taco Bell Pty Ltd , the Federal Court used the following method to determine whether conduct was misleading or deceptive, or was likely to mislead or deceive: Taco Company of Australia TACO Bell Pty Ltd 一案中,联邦法院在判决行为是否 有误导性或欺骗性,是否有误导或欺骗的倾向时使用了以下方法: 1. Identify who the target audience of the conduct is; 确定行为的目标听众是谁; 2. Consider whether the conduct is likely to mislead or deceive by reference to all of the target audience: “including the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated….” 通过参照“包括精明的和易受骗的,聪明的和愚笨的,受过良好教育和文化程度低的”所 有目标听众来考虑行为是否有可能误导或欺骗。 Broadly speaking, “the question is to be tested by the effect on a person, not particularly intelligent or well informed, but perhaps of somewhat less than average intelligence and background knowledge, although the test is not the effect on a person who is, for example, quite unusually stupid.” 广泛来说, 问题在于要通过对一个人的影响来验证,这个人不一定要聪慧过人或对情 况了如指掌,但是至少要具备一般的智商和一定的背景知识,但是不验证事情对一个 异常愚笨的人的影响。 Ask: would a significant proportion of the target audience be likely to be led into error?
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  • One '14
  • Deception, coles

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