Section 18 of the ACL.docx - Section 18 of the ACL A...

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Section 18 of the ACL : A ‘person’ (including legal person 法人 ) shall not, in ‘trade or commerce’, ‘engage 参与 in conduct 行为’ that is misleading or deceptive 诈欺 , or likely to mislead or deceive 欺骗 This law says nothing about contract. So you do not need to be in a contract for this law to apply. The P can sue in they show these steps: (1) There must be “conduct” “Conduct” can include both acts and omissions. 行为”包括作为和不作为(行为和遗漏)。 Conduct’s meaning is extremely broad. 行为的意思很广泛 Conduct in the exam often includes Advertising Selling goods/services Selling business (2) Conduct in Trade or Commerce “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(包括盈利性和非盈利性)。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。 Advertising, selling a business, selling goods, displaying them in the shop are all in trade or commerce and common questions. (3) Is conduct misleading or deceptive 欺骗 , or likely to mislead or deceive. 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。
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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
  • Sally, Deception, Lie, Henjo Collins

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