78181 Deceptive Trade Practices
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particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2021 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): ( 78101c Postgraduate Legal Research OR ((22 credit points of completed study in spk(s): C07122 Graduate Diploma Legal Studies OR 22 credit points of completed study in spk(s): C04264 Master of Legal Studies)) OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration OR 94 credit points of completed study in spk(s): C04363 Juris Doctor Master of Intellectual Property OR 94 credit points of completed study in spk(s): C04364 Juris Doctor Graduate Certificate Trade Mark Law and Practice) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law) OR (94 credit points of completed study in spk(s): C04320 Juris Doctor Graduate Certificate Professional Legal Practice AND 70106 Principles of Public International Law))
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
There are course requisites for this subject. See access conditions.
Anti-requisite(s): 76023 Deceptive Trade Practices and Product Liability AND 78123 Deceptive Trade Practices
This subject examines in detail the statutory action of misleading and deceptive conduct within the meaning of section 18 of the Australian Consumer Law (ACL). Section 18 is contravened where a defendant engages in conduct that is likely to deceive in trade and commerce. Because the remedies under the ACL are more flexible, more far reaching and usually easier to establish than remedies available at common law or in equity, legal practitioners tend to rely on the statutory action of misleading and deceptive conduct as an alternative to traditional claims based on common law or equitable breaches of the general law.
In this subject, students analyse cases dealing with the meaning of the phrases 'in trade and commerce' and 'misleading or deceptive conduct' and how loss or damage is assessed. The application of the law to all the facts and circumstances is stressed. A distinction is drawn between cases involving competitors, rivals and political opponents and cases involving parties in contractual relationships such as vendors and their agents versus purchasers; finance providers and their agents versus borrowers; and, landlords and their agents versus tenants. Silence, promises, predictions and representations about future matters as misleading or deceptive conduct are also examined in depth. Students examine the causal nexus between a contravention of section 18 of the ACL and any loss or damage suffered. Has the claimant relied on the misleading or deceptive conduct? Has the claimant's reliance been a cause of his, her or its loss? What is the effect on a claimant who, although misled or deceived has failed to take reasonable care? Finally, the remedies available under the ACL are examined in detail.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
|1.||Apply an advanced and integrated knowledge of Deceptive Trade Practices and Product Liability law in Australia;|
|2.||Identify and examine the nature and scope of the remedies available under the ACL and how the Court applies these remedies;|
|3.||Identify and evaluate the concept of ‘norm of conduct’ demanded by the Trade Practices Act in commercial dealings;|
|4.||Analyse, evaluate and apply the principles of key cases to complex factual situations;|
|5.||Communicate orally and in writing in a logical, reasoned and persuasive manner utilising appropriate communication strategies;|
|6.||Conduct effective legal research and apply critical analysis to evaluate and synthesise relevant factual, legal and policy issues relating to a Deceptive Trade Practices issue.|
|7.||Write a Research Paper on a Deceptive Trade Practices topic developing persuasive argument to justify and interpret theoretical propositions, legal methodologies, conclusions and professional decisions in the context of the topic.|
Teaching and learning strategies
Strategy 1: Preparation for class.
Students familiarise themselves with the substantive law to be canvassed before each class by reading and reflecting on the prescribed reading. The prescribed reading and proposed timetable for classes is included in the Program (below). This is an essential learning strategy for this subject. Preparation for class enables students to develop knowledge that forms the basis of their class participation, including whole class and small group collaborative discussions.
To assist students to prepare for class, students prepare answers to a series of discussions questions. The questions are available on Canvas. By answering these questions before class students will be able to contribute more to class discussions, have an opportunity to test their understanding of issues and ask questions in class to clarify any issues.
Strategy 2: Engagement in interactive lectures.
Interactive lectures introduce students to the key cases and the principles of Deceptive Trade Practice and Product Liability law. In the first five classes, students learn about the relevant legislative provisions and the cases that deal with the meaning of key concepts. These are analysed in detail and the approaches that Judges have taken in different cases are highlighted. In the interactive lectures, the series of discussion questions will be covered in class
Students are invited to clarify issues arising from their preparation and encouraged to ask questions, challenge ideas and test their understanding during lectures.
Strategy 3: Independent research and participation in class discussion
Students participate in discussion of seminar topics in the classes held during the second half of the session. Participating in seminar discussion provides students with an opportunity to integrate the learning in the first half of the session including their preparation for interactive lectures and the research conducted for their allocated case note. By drawing on their preparation in this way students further test and develop their skills in critical analysis, evaluation and research. Students also develop skills in presentation and communication as they present a seminar paper, raise questions, contribute their observations and respond to their peers. In this way, students develop and test their learning while also obtaining feedback from their teacher and peers (see Feedback below).
Strategy 4: Feedback
Both formal and informal feedback will be provided throughout the session. Feedback comes from a variety of sources including: from peers in the class who respond to a student’s contribution in the class or on Canvas; from the teacher in response to a student’s questions in class, presentations and written assignments; and from personal reflection.
Students have an opportunity to test their understanding of the readings completed in preparation for the lectures or seminar by asking questions or contributing their observations. In this way, the teacher will address and explore students’ questions and observations in a group setting, providing feedback on students’ developing understanding. Formal feedback is offered on students’ case notes, seminar presentations and research essays providing an opportunity for students to implement suggestions in subsequent assessment tasks.
This subject is taught by way of three hour classes which involve a combination of lectures, seminar presentations and class discussion.
This subject examines deceptive trade practices law in Australia through the operation of the consumer protection provisions Australian Consumer Law (ACL) which commenced in operation on 1 January 2011.
The topics which will be taught are as follows:
- Background to the enactment of the ACL;
- Meaning of ‘trade and commerce’;
- Cases on ‘misleading or deceptive conduct’ involving competitors, rivals and political opponents;
- Cases on ‘misleading or deceptive conduct’ involving parties in contractual relationships such as vendors and their agents’ v purchasers; finance providers and their agents’ v borrowers of finance; landlords and their agents’ v tenants.
- Silence as misleading or deceptive conduct;
- Promises, predictions, representations about future matters as ‘misleading or deceptive conduct’ – s. 4 of ACL;
- Reliance, causation and disclaimer clauses;
- Assessment of damages for misleading or deceptive conduct – s. 236 of ACL;
- Relief against persons involved in misleading or deceptive conduct – s. 2 of ACL;
- Contribution where claimants fail to take reasonable care of their own interests and the person who engaged in ‘misleading or deceptive conduct’ did not intend to cause loss – s. 137 B of C&C Act;
- Limitation issues – s. 236 (2) of ACL;
- Making such orders as the Court thinks appropriate – s. 237 to 244 of ACL;
- Injunctive relief – s. 232 of ACL; and
- A comparison between a cause of action based on s. 18 and other causes of action in tort and contract and under Intellectual Property legislation.
Assessment task 1: Case note
800 words, with a 10% leeway.
Assessment task 2: Seminar Paper and Presentation
1,000 words for Seminar Paper with 10% leeway.
Assessment task 3: Class Participation
Assessment task 4: Major Essay
• A. Coorey, Australian Consumer Law (LexisNexis, Sydney, 2015).
* Jurisprudentia, Consumer Law I, II and III (Student Guide Cards, Sydney, 2018).
The above material are essential for assessment in this course and must be acquired prior to class one. All materials are available at Coop Shop.
For students who are not familar with writing a case note or essay, please see Jurisprudentia, Legal Writing (Student Guide Card, Sydney, 2018).
For students who are not familar with AGLC citation, please see Jurisprudentia, Legal Referencing (Student Guide Card, Sydney, 2018).
• Miller, Russell, Australian Competition and Consumer Law, 40th Edition, Law Book Company Australia