Misleading or deceptive conduct in commercial transactions: always assume the ACL catches all

Recent comments in the media suggest Australia's consumer protection laws are being exploited by "corporate giants" in large transactions.1 The comments imply that it is possible for large, commercial parties to exclude the prohibition on misleading or deceptive conduct in some transactions.

But the analysis behind the commentary is flawed and all commercial parties to a transaction should be keenly aware of their liabilities.

Australia's consumer protection laws have always had a general prohibition on misleading or deceptive conduct in trade or commerce. Previously it was contained in the Trade Practices Act and the state Fair Trading Acts. Now, it is contained in the Australian Consumer Law (ACL).

It is incorrect to suggest the ACL is being used, perhaps by crafty lawyers or creative bankers, to get around contracts and recut transactions.

The use of the ACL in such transactions does not, in any sense, amount to a "recutting." The clear legislative position is that if parties to any commercial transaction are subject to misleading or deceptive conduct, then they should have redress to the ACL.

The analysis is also dangerous to the extent it suggests that it may be possible to exclude the operation of the ACL in large transactions. Rather, commercial parties need...