Consumer Protection
Compare s18 and s29 of the ACL. What do they represent? How do they differ?
s18(1) - a person must not in trade or commerce engage in conduct which is misleading/deceptive
s29(1)(a-n) - specific false claims about goods/services
List two forms of legislation which outline Privacy Laws in Victoria
Privacy Act 1988 (Cth) and Australian Privacy Principles (APPs)
What is the legal term for a failure to exercise reasonable care that results in harm to another person?
Negligence.
Define "pure economic loss"
A financial loss that is not a consequential loss (eg loss of wages, medical costs) caused by physical/mental/property loss.
What is a partnership?
Individuals who carry on a business in common with a view to earn profit.
What remedies are available for a breach of s18 and s29 respectively?
s18: damages (s236)
s29: pecuniary penalties (S224)
Both: injunctions; non-punitive orders; adverse publicity orders
Who does the commonwealth framework apply to?
Exclusions: small businesses and small business operators; registered political parties, state or territory authority or a prescribed instrumentality of a State
List the three elements required to establish a claim of negligence.
Duty of care, breach of duty of care & has the plaintiff suffered damage (causation & remoteness)
Distinguish between negligent acts and negligent statements
Negligent acts involve a failure to exercise reasonable care through actions or omissions that result in harm to another person; negligent statements occur when someone makes a false statement without exercising reasonable care, leading to financial or other harm to the person who relied on the statement.
Define 'solvency'
A company is solvent if it is able to pay its debt as and when they are due.
- Unfair contract terms: unfair clauses in consumer contracts
- Statutory Unconscionable Conduct: unfair methods used to enter a consumer contract
What is an 'interference with privacy'?
An act or practice of an APP entity is an interference with the privacy of an individual if there is a breach of an APP or APP code
Explain the 2 defences that defendants have against negligence claims
Contributory negligence and voluntary non fit injuria
What is a 'peer professional opinion' defence? When does this not apply?
s59 of the Wrongs Act states a professional does not incur liability if they acted in a manner widely accepted by peer professional opinion as competent professional practice. Wrongs Act s60 adds that this does not apply where a professional is under a duty to give a warning/other information in respect of a risk or other matter to a person.
List the key duties director's of a company have.
- Duty of care, skill and diligence
- Duty to act in good faith
- Duty to not misuse the position
- Duty not to use inside information improperly
- Disclosure of interests
- Prevent insolvent trading
s54:
s54(1): There is a guarantee that goods will be of acceptable quality
s54(2): Goods are of Acceptable Quality if they are: Fit for common purposes; and Acceptable in appearance and finish; and Free from defects; and Safe; and Durable
s54(3): Goods must meet what a reasonable consumer would expect in the circumstances considering: Nature of the goods; and Price; and Labels or packaging statements; and Representations by supplier/manufacturer about the goods; and Other relevant circumstances
s55:
s55(1): There is a guarantee that goods will be fit for any disclosed purpose
s55(2): A disclosed purpose refers to a specific purpose (whether or not common) that the consumer expressly or impliedly communicates to the supplier.
s55(3): Two points need to be satisfied: Particular purpose made known to supplier by consumer, expressly/impliedly in pre-contractual negotiations AND consumer shows it relied on supplier’s skill and judgment
Distinguish between personal information and sensitive information.
Personal information is information or an opinion about an identified individual or reasonably identifiable, whether true or not or recorded in material form or not. Sensitive information is a subset of personal information, to which additional privacy protections apply to prevent mishandling. Specific examples are listed in legislation (e.g. racial or ethnic origin, political opinions).
What is the "but for" test?
A test to determine causation, asking whether the harm would not have occurred “but for” the defendant’s conduct.
Explain the two considerations that fall under s48(2) regarding economic loss
The common law test in Rogers v Whitaker and the standard of care for professionals (including the 'statutory tests').
So long as the act is within the scope of the kind of business and done in the usual way, partners are jointly liable. If a wrong is committed in the ordinary course of business, partners are liable jointly and severally.
What are the 4 steps to determine if consumer guarantees have been breaches?`
Step 1: when do they apply? Must have: supply s2(1) - sale, lease, hire or hire-purchase; consumer s3(1) - amount payable less or equal to $100000, ordinarily for personal/domestic/household use; OR vehicles used transporting goods on public roads; no exclusions apply s3(2) - resupply/using up not permissable
Step 2: was a guarantee breached? See s54 and s55.
Step 3: exclusion clause: see s64(1), 64A(1) and 64A(3)
Step 4: remedies: major failure (s260) vs minor failure
What is provided for in the APPs (on a macro and micro level)? List exceptions also.
APPs:
- 1 & 2: consideration of personal information privacy
- 3, 4 & 5: collection of personal information
- 6, 7, 8 & 9: dealing with personal information (use of disclosure of personal information, direct marketing, cross-border disclosure of personal information, adoptions, use or disclosure of government related identifiers).
- 10 & 11: integrity of personal information (quality of personal information, security of personal information).
- 12 & 13: access to, and correction of, personal information (access to personal information and correction of personal information)
Exceptions: 7 'permitted general situations'
- Lessening or preventing a serious threat to the life, health or safety of any individual, or to public health or safety;
- Taking appropriate action in relation to suspected unlawful activity or serious misconduct;
- Locating a person reported as missing
- Asserting a legal or equitable claim
- Conducting an alternative dispute resolution process
- Performing diplomatic or consular functions (only apples to 'Agencies')
- Conducting specified Defence Force activites (only apples to the 'Defence Force')
What does each subletter of s48(1) and 48(2) outline respectively?
Section 48(1): a person is not negligent in failing to take precautions against a risk of harm unless: (a) The risk of injury was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) The risk was not insignificant; and (c) In the circumstances, a reasonable person in the person’s position would have taken those precautions.
Section 48(2): in determining whether a reasonable person would have taken precautions against a risk of harm the court is to consider, inter alia, the following: (a) the probability that the harm would occur; (b) the likely seriousness of the harm; (c) the burden of taking precautions (cost and inconvenience) to avoid the harm; (d) The social utility of the activity that caused the harm.
Explain the criteria required to establish a duty of care for negligent statements causing pure economic loss.
A "special relationship" must exist and reliance by the plaintiff must be clear. Whenever a person gives information, whether the information is actively sought or merely accepted by the other, if: based on a serious matter; the speaker relieses/ought to realise they are being trusted or relied upon; it is reasonable in the circumstance for the other party to act upon that information.
When is a company liable for the acts of its agents?
Persons ‘dealing with the company’ are entitled to make the assumptions. These assumptions can be made even if the director, officer or agent had acted fraudulently or had forged a document in connection with the dealing. A person loses the right to rely on s129 assumptions if they know or (subjectively) suspect that the particular assumptions are not correct.