Deck 17: General and Specific Consumer Protections Under the Acl

Question 1

You have booked a holiday home through Accommodation Noosa Pty Ltd twelve months in advance.However,when you arrive at the Accommodation Noosa office to pick up the key,you are told that there has been an unfortunate double booking error,and the holiday home you had booked is no longer available.Accommodation Noosa offers you an alternative holiday home,but it is not as appealing as your original choice.Can you use s 18 of the Australian Consumer Law to bring an action against Accommodation Noosa?

Answer 1

answers will vary

Question 2

Which of the following is NOT one of the guidelines for determining if conduct is misleading and deceptive within the meaning of s 18 of the Australian Consumer Law?

A)Decide whether the conduct was capable of misleading or deceiving the relevant section of the public.
B)Establish that at least half of the relevant section of the public would have been misled or deceived by the conduct of the defendant.
C)Identify the relevant section of the public targeted by the conduct of the defendant.
D)Decide whether the conduct of the defendant caused the misconception.

Answer 2

B

Question 3

In relation to 'conduct' under s 18 of the ACL,Henjo Investments Pty Ltd & Ors v Collins Marrickville Pty Ltd (1988)79 ALR 83 is authority for the principal that:

A)silence can constitute misleading and deceptive conduct where there is a duty to disclose relevant facts.
B)pre-contractual representations can constitute misleading and deceptive conduct.
C)an advertisement which compared a competitor's products unfavourably with the advertiser's products can constitute misleading and deceptive conduct.
D)the act of making a contract containing a false warranty is sufficient to constitute misleading and deceptive conduct.

Answer 3

A

Question 4

How does s18 of the Australian Consumer Law define 'conduct'?

A)Statements of opinion that are false or not reasonably held.
B)Statements that are literally true but that create a false impression.
C)Broken promises and false predictions.
D)All of the above.

Question 5

In order to establish misleading and deceptive conduct in breach of s 18 of the Australian Consumer Law,3 out of the 4 following elements must be satisfied.Which answer option is NOT a necessary element for establishing misleading and deceptive conduct?

A)The conduct must be misleading or deceptive or likely to mislead or deceive.
B)The conduct must have been by a person.
C)The conduct must have been intended to mislead or deceive.
D)The conduct must be in trade or commerce.

Question 6

What was the reason for the decision in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982)149 CLR 191?

A)The target audience of the conduct would not be misled into thinking there was a connection between the two products.
B)A purchaser could be misled if someone removed the labels without the manufacturer's knowledge.
C)The products were clearly labelled so there was nothing more the manufacturer could do.
D)The conduct could cause consumers to wonder if the products were made by the same manufacturer.

Question 7

In relation to 'conduct' under s 18 of the ACL,Accounting Systems 2000 v CCH Australia Ltd (1993)42 FCR 470 is authority for the principle that:

A)pre-contractual representations can constitute misleading and deceptive conduct.
B)silence can constitute misleading and deceptive conduct where there is a duty to disclose relevant facts.
C)the act of making a contract containing a false warranty is sufficient to constitute misleading and deceptive conduct.
D)an advertisement which compared a competitor's products unfavourably with the advertiser's products can constitute misleading and deceptive conduct.

Question 8

The onus of proving that a transaction is a consumer sale is always on the consumer.

Question 9

Under the Australian Consumer Law definition,a 'consumer' is not:

A)someone who acquires a commercial road vehicle valued at less than $40,000.
B)someone who acquires goods or services valued at less than $40,000.
C)someone who acquires goods or services of a kind ordinarily acquired for personal,domestic or household use (of any value).
D)someone who acquires goods for resupply,or for use or transformation in trade or commerce.

Question 10

In relation to 'conduct' under s 18 of the ACL,Clark Equipment Australia Ltd v Covcat Pty Ltd (1987)71 ALR 367 is authority for the principle that:

A)pre-contractual representations can constitute misleading and deceptive conduct.
B)an advertisement which compared a competitor's products unfavourably with the advertiser's products can constitute misleading and deceptive conduct.
C)silence can constitute misleading and deceptive conduct where there is a duty to disclose relevant facts.
D)the act of making a contract containing a false warranty is sufficient to constitute misleading and deceptive conduct.

Question 11

In which case did the court set out the guidelines for determining if conduct is misleading or deceptive within the meaning of s 18 of the Australian Consumer Law?

A)McDonald's System of Australia Pty Ltd v McWilliams Wines Pty Ltd (1980)33 ALR 394.
B)Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982)149 CLR 191.
C)Taco Company of Australia Inc v Taco Bell Pty Ltd (1982)ATPR 40-303.
D)Pacific Dunlop v Hogan (1989)23 FCR 553.

Question 12

Allegations of a breach of a specific unfair practices section of the Australian Consumer Law will often also involve a breach of the general prohibition in s 18 for misleading and deceptive conduct.

Question 13

Conduct by a corporation or person in trade or commerce that is misleading or deceptive may also result in a finding of unconscionable conduct.

Question 14

Why was the conduct found not to be misleading and deceptive in McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd [1980] ATPR 40-188?

A)The target audience of the conduct would not be misled into thinking there was a connection between the two products.
B)The conduct was found to be misleading and deceptive.
C)Merely causing consumers to wonder if the product is made by the same manufacturer is not sufficient.
D)The products were clearly labelled so there was nothing more the manufacturer could do.

Question 15

Why was the conduct found to be misleading and deceptive in Pacific Dunlop v Hogan (1989)23 FCR 553?

A)The use of the name might cause confusion in the minds of some consumers.
B)The conduct created the false impression that a commercial relationship existed between the parties.
C)The conduct was not found to be misleading and deceptive.
D)The misconception was caused by use of an existing name which already had a well-established reputation.

Question 16

Which of the following is NOT covered by the Australian Consumer Law?

A)Unfair practices in relation to the provision of goods and services to small businesses.
B)Unfair practices in relation to the provision of financial services to consumers.
C)Unfair practices in relation to land transactions.
D)Unfair practices in relation to the provision of goods and services to consumers.

Question 17

Section 18 is not only available to consumers,but it can also be used by competitors or suppliers against other competitors.

Question 18

Explain the function of the Australian Consumer Law.

Question 19

Conduct that is misleading and deceptive under s 18 of the Australian Consumer Law can result in both civil and criminal penalties.

Question 20

The Australian Consumer Law in ss 20 to 22 provides remedies for:

A)unconscionable conduct when supplying goods or services to a person (other than a listed public company).
B)unconscionable conduct at common law by a person in the course of trade or commerce.
C)unconscionable conduct when acquiring goods or services from a person (other than a listed public company).
D)all of the above.

Question 21

To what extent have the laws relating to unconscionability undermined the certainty of commercial and consumer contracts?

Question 22

Under Section 50 of the Australian Consumer Law,a corporation banned from engaging in the 'unfair practice' of:

A)making false representations in relation to employment.
B)dispatching unsolicited credit cards unless requested in writing.
C)offering gifts or prizes when it does not intend to provide them.
D)using physical force at a place of residence in connection with the supply of goods or services.

Question 23

Section 29(1)of the Australian Consumer Law prohibits false representations regarding services relating to:

A)the price of the service.
B)the standard,quality,value or grade of the service.
C)the buyer's need for the service.
D)all of the above.

Question 24

Advertising a product at special prices only to tell the consumer the product is no longer available or is available but at a higher price is known as bait advertising.

Question 25

What was the issue addressed in Grant v Australian Knitting Mills [1936} HCA 49?

A)Whether an injured consumer was partially liable for their own negligence
B)Whether a duty of care was owed to retailers of defective goods
C)Whether a manufacturer owed a duty of care to the ultimate consumer of the manufacturer's products
D)Whether a manufacturer owed a duty of care to a consumer of used manufacturer's products

Question 26

Which of the following does NOT need to be established in order for a manufacturer to be liable for defective goods?

A)A person is injured.
B)The goods have a safety defect.
C)The injury was foreseeable.
D)The manufacturer supplies goods in trade or commerce.

Question 27

Accepting payment without intending to supply is not an offence under the ACL but rather an offence under the Crimes Act 1901.

Question 28

The Australian Consumer Law prohibits unconscionability in business as well as consumer transactions.

Question 29

Which of the following 'consumers' are NOT protected by s 22 of the unconscionability provisions of the Australian Consumer Law?

A)A proprietary company.
B)A listed public company.
C)A partnership.
D)An individual.

Question 30

If a purchaser acts as a seller's 'agent' and is paid a commission for introducing new customers to the seller,the parties have engaged in:

A)bait advertising.
B)unsolicited goods.
C)referral selling.
D)pyramid selling.

Question 31

What is an unfair contract under s 23 of the Australian Consumer Law?

Question 32

Which of the following is a defence to an action for manufacturers liability for defective goods?

A)The defect did not exist at the time the goods left the manufacturer.
B)The injured person had not read the instructions carefully enough.
C)The goods were not intended to be dangerous.
D)Any of the above.

Question 33

Section 29(1)of the Australian Consumer Law prohibits false representations regarding goods relating to:

A)whether the goods are new.
B)the standard or quality of the goods.
C)the price of the goods.
D)all of the above.

Question 34

A consumer can take action against both the retailer and the manufacturer for breach of the consumer guarantees.

Question 35

Which of the following is NOT a factor in deciding whether a corporation has engaged in unconscionable conduct,in breach of ss 21 or 22 of the Australian Consumer Law?

A)Whether the consumer has fully complied with the terms of the contract.
B)Whether any undue influence,pressure or unfair tactics were used by the corporation.
C)Whether the terms of the contract were reasonably necessary to protect the legitimate interests of the corporation.
D)Whether the form and wording of the contract was clear.

Question 36

In Nationwide News Pty Ltd v ACCC [1997] ATPR 41-543 an advertisement offering a 'free mobile for every reader' was found to be a false or misleading representation because:

A)the advertisement contained conditions which required readers to enter into a service contract at a substantial cost.
B)the conditions were in smaller print than the offer itself and therefore less likely to be noticed.
C)in fact the offer of the mobile was not free.
D)all of the above.

Question 37

Which of the following statements are true in relation to the liability of manufacturers for defective goods?

A)Manufacturer's liability does not apply to commercial property.
B)Manufacturer's liability is strict and there is no need to prove fault.
C)Manufacturer's liability cannot be excluded or modified.
D)All of the above.

Question 38

The statutory prohibition of unconscionable conduct in s 21 of the Australian Consumer Law replaces the common law.

Question 39

Where a corporation or person in trade or commerce claims a right to payment from another person for unsolicited goods or services,it is known as inertia selling.

Question 40

Advertising something at a special price and then telling customers that it is unavailable and offering them something else at a higher price is an example of:

A)unsolicited goods.
B)bait advertising.
C)pyramid selling.
D)referral selling.

Question 41

Manufacturer's liability for breach of the consumer guarantees extends to importers where there is no manufacturer in Australia.

Question 42

Consumer actions for breach of the Australian Consumer Law will be heard in specialist consumer tribunals or small claims courts.

Question 43

Which of the following is NOT a power available to a regulator to enforce the Australian Consumer Law?

A)Adverse publicity order.
B)Injunction.
C)Compensation order.
D)Non-punitive order.

Question 44

The consumer protection provisions of the Australian Consumer Law can only be enforced by the Commonwealth.

Question 45

Which of the following is NOT a remedy that may be sought by a person affected by a breach of the Australian Consumer Law?

A)Damages to compensate for loss or damage caused by the breach.
B)Undertaking to remedy the breach.
C)Compensation to prevent or reduce loss or damage caused by the breach.
D)Injunction to stop conduct in breach of the Act.

Question 46

Section 82 of the Australian Consumer Law gives customers a 30-day cool off period during which a consumer may terminate an unsolicited agreement.

Question 47

The Financial Services Reform Act 2001 (Cth)only applies to financial advisers.