The New S52, S18 ACL - Australasian Legal Information Institute
The new s52, s18 ACLBy Eileen W e b bT h e cause o f action fo r contravention o f sta tu to ry p ro h ib itio n sagainst conduct in trade or com m erce tha t is m isleading ordeceptive or is likely to mislead or deceive has become a staple o fcivil litiga tion in A ustralian courts at all levels.' 116 PRECEDENT ISSUE 106P h o to J a s th e r / D ream stim e.co m .
FOCUS ON THE AUSTRALIAN CONSUMER LAWhe much-heralded arrival of the AustralianConsumer Law (the ACL) has focused attentionon the many and varied modifications to theconsumer law and enforcement landscape.Interestingly, with all the innovations in thenew law competing for attention, it seems that s l8 ACL,formerly s52 Trade Practices Act (TPA) has been somewhatforgotten in the excitement over the new and enhancedprovisions.The good news is that, for the most part, s l8 replicatess52 and therefore most case authorities interpreting s52 willremain applicable. Some new remedies and enforcementpowers are available, too, in circumstances involvingmisleading or deceptive conduct. Finally, the ACL impactsupon two provisions commonly discussed in the context ofmisleading or deceptive conduct: s51A, representations asto future matters; and s65A TPA in relation to informationproviders, now ss4 and 19 ACL respectively.This article will: examine the provisions of s l8 ACL; highlight similarities and differences between s l8 and s52; list the remedies and enforcement powers applicable tos l8 ; and outline the differences between s51A and 65A TPA and theequivalent provisions: ss4 and 19 ACL.TSECTION 52 - A REFRESHERFor those of us with short memories, s52 prohibitedcorporations in trade or commerce from engaging inconduct which is misleading or deceptive or likely tomislead or deceive. Since 1974, s52 has been one of themost commonly litigated provisions in Australian law; itsimpact has been considerable due to the breadth of theprovision itself and its subsequent application to diverseareas of the law.Section 52 has been described as ‘a comprehensiveprovision of wide impact’.2 Despite its foundation inconsumer protection law, the provision was utilised indiverse instances encompassing commercial and non commercial matters and some government activities. Section52 made significant inroads into, and in some cases eclipsed,areas traditionally governed by the common law.3 Ratherthan creating liability in itself, s52 established a norm ofconduct.4 Conduct was only misleading or deceptive, orlikely to mislead or deceive, if there was a nexus betweensuch conduct and any actual or anticipated misconceptionor deception.5 Non-compliance with s52 enabled anaggrieved party to seek civil, but not criminal, remediesunder Part VI TPA.6Ordinarily, the burden of proof was borne by the plaintiff;however, under an evidential provision - s51A - if arepresentation related to a future matter, such representationwould be held to be misleading unless the person makingthe statement had reasonable grounds for making therepresentation.7Despite the fact that s52 has so often been litigated, theprovision remains a mystery in some respects. Also, it islimited in certain circumstances, and confusion reigns.Therefore, it is perhaps unfortunate that, while some issueswith s52 have been clarified or streamlined, others have not.SECTION 18 ACL (SCHEDULE 2 C O M P E T I T I O N A N DC O N S U M E R A C T 2010)Before embarking on a discussion about s l8 , it is useful toplace the provision in the context of the ACL. Section 18appears in two places within the Competition andConsumer Act 2010 (Cth) (CCA): Part XI as a law of theCommonwealth and in Part XIAA as an applied law of astate or territory.The elements of s18T 8 Misleading or deceptive conduct(1) A person must not, in trade or commerce, engage inconduct that is misleading or deceptive or is likely tomislead or deceive.(2) Nothing in Part 3-1 (which is about unfair practices)limits by implication subsection ( l ) .’8For the most part, s52 has survived in its new incarnation,s l8 ACL, relatively unscathed. Indeed, it has been notedthat:‘The effect of s l8 remains unchanged and, accordingly, theexisting jurisprudence on s52 and its State and Territoryequivalents remains applicable under the ACL.’9Nevertheless, of necessity, the provision has been altered tocater for the national approach. As noted, s l8 of the ACLprohibits a person, in trade or commerce, from engaging inmisleading or deceptive conduct.If we itemise the elements of s i 8(1), it can be seen that anapplicant must establish several criteria.1, The respondent Is a personSection 52 prohibition was directed at ‘a corporation’,whereas in s l8 the reference is to ‘a person’.Section 52 was limited by constitutional factors, thusnecessitating that misleading or deceptive conduct beengaged in by a corporation, subject to the possibleextension to individuals through ss5 and 6(2), (3) and(4 ).10 In circumstances where the requisite conduct wasnot engaged in by a corporation or, by extension, to anindividual, s52 was unavailable to a plaintiff. An action wasavailable, however, through the various state and territoryFair Trading Acts where the constitutional limitation did notapply and reference in the equivalent provisions was madeto a ‘person’.Now, as the ACL is a law of both the Commonwealth andof each state and territory, the provisions of the ACL applyto all persons, whether they are individual persons or bodiescorporate." Although ‘corporation’ is no longer explicitlyreferred to in s l8 , the provision clearly extends to suchentities for two reasons: one straightforward and the othera little more complex. First, it has long been recognisedthat the term ‘person’ extends to corporate entities and this,of course, remains the case under the ACL.12 The secondrequires some navigation around the legislation.13 TheExplanatory Memorandum, states at [3.9]:‘The provisions of the ACL apply to all persons - whether »SEPTEMBER/OCTOBER 2011 ISSUE 106 PRECEDENT17
FOCUS ON THE AUSTRALIAN CONSUMER LAWthey are individual persons or bodies corporate —as it willbe a law of both the Commonwealth and of each state andterritory.’The Explanatory Memorandum continues that sl3 1Competition and Consumer Act 2010 (CCA) applies the ACLto the conduct of corporations. The mechanism by whichthe legislation can be applied to corporations, and for thepurposes of s l8 ACL, is illustrated in the following diagram:Since 1974, s52 has beenone of the most commonlylitigated provisions inAustralian law.Pt XI CCACompetition andConsumer Act2010 (Cth)(CCA)AppliesSchedule 2 CCA(the ACL)as a law of theCommonwealthNB the prohibition ofmisleading or deceptiveconduct (s18) is in Chapter 2ACL (Sch 2 CCA)Section 131 CCASchedule 2 appliesas a law of theCommonwealth to theconduct of corporations,and in relation tocontraventions of Chapter2, 3 or 4 of Schedule 2, bycorporations.Schedule 2CCAEstablishesthe AustralianConsumer Law(ACL).Pt XIAA CCAAppliesSchedule 2as an applied law of a State or Territory2. The defendant's activities are in trade orcommerceTrade or commerce’ is defined in s 2 (l) ACL in terms of suchactivity taking place within Australia or between Australiaand places outside Australia. This accords with the definitionin s 4 (l) CCA. However, s 2 (l) continues that ‘trade orcommerce’ also includes any business or professional activity(whether or not carried on for profit).14In the TPA, the scope of ‘trade or commerce’ was notdefined, although some authorities stated that the termwas intended to cover the whole field in which trade orcommerce is carried on.15 Despite this conclusion, thepresence of the word ‘in’ has served to restrain ‘trade orcommerce’. As the relevant conduct had to take place‘in’ trade or commerce, it was insufficient for conduct tobe merely ‘in relation to’ activities in trade or commerce.The conduct had to be, in itself, an aspect or element ofthe activities or transactions which, of their nature, borea trading or commercial character.16 It would seem thatprevious authorities remain applicable, with the ExplanatoryMemorandum not providing any enlightenment regardingthe differing definitions.173. The defendant has engaged in conductSection 4(2) TPA defined conduct, and stated that conductwas to be read as a reference to the doing of or the refusingto do any act.18 ‘Conduct’ was recognised as having a wideambit and was held not to be restrained by references to18PRECEDENT ISSUE 106 SEPTEMBER / OCTOBER 2011contract or matters involving misrepresentation.19Pursuant to s2(2) ACL, conduct is defined by referenceto ‘engaging in conduct’. With the exception of someenhanced numbering, s2(2) replicates s4(2) TPA, soit would seem the case law authorities regarding thatprovision remain applicable.20 Of particular interest iss2(2)(c), formerly s4(2)(c) TPA, which is crucial to theextension of s l8 to matters involving silence and non disclosure.21 The term includes refraining (otherwise thaninadvertently) from doing that act or making it knownthat that act will not be done.22 This has been held to referto a failure to act, for example non-disclosure, as well asproactive activity. Therefore, a failure to disclose - thatis, remaining silent - could be regarded as engaging inconduct that is misleading or deceptive.234. Such conduct is misleading or deceptive or likelyto mislead or deceiveAbsence of definitionAs was the case with the TPA, neither the terms ‘misleading’nor ‘deceptive’ are defined individually or cumulativelyin the ACL. However, the terms have been the subject ofconsiderable judicial consideration and, in summary, it canbe said that conduct will be misleading or deceptive if itinduces or is capable of inducing error.24 The extension toconduct which is ‘likely’ to mislead or deceive results inthe ambit of s52 taking in conduct which ‘may’, ‘may be
FOCUS ON THE AUSTRALIAN CONSUMER LAWexpected to’ or ‘has the capacity or tendency to’ misleador deceive.25 As a result, it is unnecessary to establish thatanyone was actually misled or deceived by the conductunder consideration.26 Such conduct must demonstrate areal, not remote, chance or possibility of a person beingmisled or deceived, even if it is less than 50 per cent.27How will misleading or deceptive conduct be identified forthe purposes of sl8 ACL?Given the breadth of s52, and the myriad of decidedcases considering the provision since its inception, it isunderstandable that it can be challenging to weave throughthe volume of relevant material and make an assessment asto whether conduct is misleading or deceptive or likely tomislead or deceive. Nevertheless, this case law will remainrelevant to a discussion of s l8 ACL. It is therefore instructiveto examine the processes utilised by the courts whenpondering this issue.Whether or not conduct amounts to a representation isa question of fact to be decided by considering what wassaid and done against the background of all surroundingcircumstances. 28 In this respect, it is illustrative toexamine the decision in Taco Company of Australia Inc vTaco Bell Pty Ltd.29The court’s approach in Taco BellIn Taco Company of Australia Inc v Taco Bell Pty Ltd, Deaneand Fitzgerald JJ identified four matters to consider whendetermining whether conduct was misleading or deceptive.Although the law has developed since the Taco Bell decision,these guidelines still provide a useful structure and are stillutilised regularly by the courts.30The approach can be summarised thus:1. Identify the relevant section of the public;2. Consider the effect of the alleged misleading ordeceptive conduct on persons within that section ofthe public;3. It is unnecessary to provide evidence of an actualerroneous conclusion; and4. Ascertain whether the misconception been caused byconduct under consideration.The first step involves the identification of the relevantsection, or sections, of the public who would be likely to bemisled or deceived by the conduct under consideration. Thismay extend to the public at large.31 In some cases, membersof a class can clearly be identified; for example, where arepresentation was made directly to a particular person.32The discussions in relation to identifying the relevant classand affected members of that class discussed in CampomarSociedad Limitada v Nike International33 would remainapplicable under s l8 ACL.34The second step involves identifying the relevant sectionof the public. Decided cases have had cause to consider adiverse range of classes which can extend from one person,to a particular group of persons or to the public at large.Clearly, the public at large is an enormous category that willencompass a multiplicity of characteristics. Purchasers mayfall into certain classes depending on the nature and priceThe terms 'misleading' and'deceptive' have been thesubject of considerable judicialconsideration: in summary,conduct will be misleading ordeceptive if it induces or iscapable of inducing error.of goods they are purchasing - for example, luxury itemsrather than generic products35 - and those seeking differenttypes of investment advice.36 Age, gender and/or personalpreferences can define a class.37 A class can be confined toa limited geographical area,38 or extend Australia-wide.39Classes have been as small as one person travelling to aparticular destination or passengers on a particular oceanliner.40 On the other hand, a class of persons may extendto a group as large as ‘motorists’ 4‘or to persons readingnewspapers, listening to the radio and/or perusing theinternet on certain days so as to be exposed to a ‘get richquick’-style scheme,42 and, of course, the public at large.The third factor in Taco Bell establishes that thedetermination of whether conduct is misleading or deceptive ,or likely to mislead or deceive is made by the court throughthe application of an objective test.43 While evidence thata person or persons has reached an erroneous conclusionis admissible - and may be persuasive - it does not itselfconclusively establish that the conduct has the requisitecharacter.44The fourth factor deals with causation. The misconceptionmust have been caused by the impugned conduct and notby error, confusion or erroneous assumption on the part ofthe representee. In Hornsby Building Information Centre PtyLtd v Sydney Building Information Centre Pty Ltd,45 Stephen Jnoted:‘. . .to determine whether there has been any contraventionof s5 2 (l) it is necessary to enquire why the misconceptionhas arisen in the minds of others.’46A useful example is provided by the facts in Parkdale CustomBuilt Furniture Pty Ltd v Puxu Pty Ltd.47 In that case, therewere extensive similarities between an expensive brand oflounge suite and a cheaper brand. The manufacturer of thecheaper brand had clearly labelled the product but, in somecases, the labels had been removed. The manufacturer wasnot responsible for this. Gibbs CJ stated:‘If the label is removed by some person for whose actsthe defendant is not responsible, and in consequence thepurchaser is misled, the misleading effect will have beenproduced, not by the conduct of the defendant, but by theconduct of the person who removed the label.’48Therefore, on a valuable product like a lounge suite, therewould be an expectation that a reasonable consumer would »SEPTEMBER/OCTOBER 2011 ISSUE 106 PRECEDENT19
FOCUS ON THE AUSTRALIAN CONSUMER LAWAs with s52 TPA, only civilremedies are available forcontraventions of s18 ACL,but the suite of enforcementpowers and remedies isbroader than that availableformerly under s52.refer to the label and, at that point, the manufacturer wouldbecome clear. The actual misconception was not caused bythe manufacturer but by the removal of the label by personor persons unknown. Similarly, if the reason the plaintiffwas misled was really through an erroneous assumption,confusion or the conduct was not relied upon, a breach of52 will not be made out.It would seem that the approach in Taco Bell remains themethodology of choice for the courts and there appears tobe no reason why this will not remain the case with theintroduction of s i 8.EN FO RCEM EN T AND REMEDIESA contravention of the prohibition on misleading and deceptiveconduct is subject to remedies including injunctions, damagesand compensatory orders, as set out in Chapter 5 of the ACL.As was the case with s52 TPA, only civil remedies are availablefor contraventions of s l8 ACL. Nevertheless, the suite ofenforcement powers and remedies applicable to s l8 ACL arebroader than those available formerly under s52 TPA. Theenforcement powers and remedies are: undertakings; substantiation notices; public warning notices; injunctions; damages; compensatory orders; redress for non-parties; and non-punitive orders.201.Did s51A impose an evidentiary or legal/persuasiveburden of proof on the defendant?522. Did satisfying the burden of proof under s51A constitutea substantive defence?3. Did s51A have application to accessories?53Section 4 ACL seeks to clarify some of the issues raisedformerly in respect to s 5 1A, thus ensuring that the newprovision ‘has the effect of facilitating the presentation ofevidence to the court when a representation of a futurematter is alleged to be misleading’.541. Burden of proofSection 51 A(2) deemed a representation as to a futurematter to be misleading, but judicial opinion differed asto the nature of the applicable burden of proof.55 Whileseveral cases concluded that s51A involved a reversal ofthe persuasive burden of proof,56 more recent authorityleant towards the evidential onus.57 Section 4 now makesit clear that the provision places an evidentiary burden ona respondent who is alleged to have made a misleadingrepresentation as to a future matter.58 This, of course, is aless onerous task for defendants and only requires evidenceof reasonable grounds rather than proof thereof.592. Substantive defence or mere evidential value?Case authority and academic opinion had been divided asto whether s5 1A provided a substantive defence or whetherit merely had evidential value.60 In the case of a substantivedefence, therefore, if the representor established that it hadreasonable grounds for making the future representation,it would be freed from liability under both s51A ands52.61 On the other hand, other cases and commentatorsconcluded that s51A had evidentiary value only and didnot operate as a complete defence.62 The ExplanatoryMemorandum to the ACL states that s4 clarifies thatsatisfaction of the burden of proof does not constitute asubstantive defence for a breach of s4.633. Applicability to accessoriesSECTION 4 ACL/SECTION 51A TPA: MISLEADINGREPRESENTATIONS WITH RESPECT TO FUTUREM ATTERSDecided cases had suggested that s5 1A has no applicationto accessories64 and that the reference to reasonable groundsin s51A was applicable only to the corporate principal. Tosucceed in an action against an accessory, therefore, theapplicant had to demonstrate that the alleged accessory hadactual knowledge that the representation was made andit was misleading, or the corporation had no reasonablegrounds for making it.65 Section 4 clarifies this situationby stating that the provision is applicable to both primarycontraveners and accessories.66It is important to consider briefly s4 ACL and its relationshipwith s i 8.49Section 4 ACL replaces s51A TPA. As noted above, s51ATPA was an evidential provision, the effect of which wasto render a representation made regarding a future matterto be misleading.50 Although applicable generally to Part V,Division 1 and Part IVA TPA, s5 1A was utilised frequently inrelation to matters raised under s52.51Three issues of consternation had arisen under s51A:Section 19 ACL will operate in the same way as ss65A(l)and (2) TPA and again the existing interpretation of the lawremains applicable.An information-provider is defined in s i 9(5) as a personwho carries on a business of providing information. Withoutlimiting s i 9(5), s i 9(6) states that ‘information-provider’includes media organisations - for example, radio andPRECEDENT ISSUE 106 SEPTEMBER / OCTOBER 2011INFORMATION-PROVIDERS
FOCUS ON THE AUSTRALIAN CONSUMER LAWtelevision stations, the ABC and SBS and newspaper andmagazine publishers.67At 160.2340, Miller summarises the net effect of theseprovisions:The print and electronic media are thus informationproviders.68 A freelance journalist is an “informationprovider”,69 while the supplier of “cheque bookjournalism” is not.70 An “information-provider” need notbe a publisher, but has been held to include the ReserveBank of Australia in its role as a supplier of informationabout a new series of bank notes.71 The expression in somecircumstances can include a private investigator making areport to the client, but the defence will not apply outsidethat context and hence did not apply to promotionalstatements about a private investigators autobiography.72While an author may be an information-provider, whatis provided must be information, not fiction: hence ajournalist describing factual experiences over a long careerin an autobiography may be an information-provider, yetan author publishing material in the nature of fiction orfantasy is not.’73Under the TPA, s65A operated to exempt the media fromand other persons who engage in the business of providinginformation from the provisions of Division 1 of Part V 74This included, of course, s52. The intention of s65A wasto exclude the application of the specified provisions of theAct to ordinary items of news and comment but to continueto subject the information-providers to those provisions inconnection with any items directly promoting the supply ofits own goods or services or the disposal of it of an interestin land.75Similarly, s l9 operates to exclude certain conduct on thepart of information-providers from the ambit of s i 8. This is,however, subject to three exceptions. Section 18 ACL willnot be applicable to publications by an information-providerwhere the information-provider made the publication in thecourse of carrying on a business of providing informationor, in the case of a radio or television broadcaster, thepublication was by radio or television broadcast by theinformation-provider.76 The exception, again, does not applyto the listed advertisements and publications.77The drafting in ssl9 (3 ) and (4) ensures that theinterpretation of s65A in Australian Competition andConsumer Commission v Channel Seven Brisbane Pty Ltd78remains applicable.79 Therefore, the provision will extend topublications made on behalf of, or pursuant to a contract,arrangement or understanding with a person who suppliesgoods or services, rather than for publications made inconnection with relevant goods or services in relation to theinformation-provider. The Explanatory Memorandum notesthat the exceptions have a wide application rather than anarrow one.80the definition of a ‘corporation’, will remain the same. Thesame comments are applicable to s i 9, formerly s65A TPA.On the other hand, the amendments to s51A, now s4 ACL,are far more significant - but in a positive way. Several issuesof concern surrounding the section raised by courts andacademic commentators appear to have been addressed. Notes: 1 M iller & Associates Insurance Broking Pty Ltd v B M WAustralia Finance Limited [2010] HCA 31 per French CJ andKiefel J at [5]; Fabcot Pty Ltd v Port Macquarie-Flastings Council[2011 ] NSWCA 167 at [129], 2 Brown & Anor v Jam Factory PtyLtd (1981) ATPR 40-213 per Fox J at 42, 928. 3 For example,the torts of passing off and negligence. See, generally, A Bruce,Consumer Protection Law, 2010 LexisNexis Australia, pp51-2.4 Accounting Systems 2000 (Developments) Pty Ltd v CCHAustralia Ltd (1993) ATPR 41-269; Butcher v Lachlan Elder RealtyPty Lim ited (2004) 218 CLR 592 at [40] 5 Campomar SociedadLimitada v Nike International Ltd (2000) 202 CLR 45. 6 Unlikemost other provisions of Part V Division 1, s52 did not have anequivalent provision under Part VC which rendered an offendingparty liable for criminal penalties. 7 Section 51 A, now s4 ACL.8 Commentary to CCH, Trade Practices, Consumer Law andContract Law, CCH Australia Limited. c2009 - North Ryde, NSWat 26-010 notes: 'Whereas former s52(2) read that nothing in thesucceeding provisions of the Division should be taken as limitingby implication the generality of subsection (1 ), the new s 18(2)guards against any implication of conflict with provisions in Ch 3,Pt 3-1, which is about unfair practices. That is, s18(2) is designedto preserve the generality of subsection (1 ) and emphasises thatthe existence or nature of other more specific prohibitions aboutunfair practices does not limit the general application of s18(1).»ENGINEERING and ERGONOMICS EXPERTSMark Dohrmann and Partners Pty LtdMark and his consulting team: assist many Australian law firm s in theirpersonal injury m atters have prepared over 6 , 0 0 0 exp ert reports onpublic and workplace accidents appear regularly in co u rt in several States give independent exp ert opinions, including back and upper limb strains; machinery incidents;/ slips and falls;/ RSI; and/ vehicle accidentsThe firm’s consulting division has alsoadvised over 2,000 enterprises Isthce 1977in safety, engineering and ergonomicsM ark is aprofessionalengineer,a qualifiedergonom istand has beenan A ustralianLawyersAlliancemember forseveral years.CONCLUSIONFor the most part, the introduction of s i 8 ACL should notcause too much consternation. The bulk of the authoritiesfrom s52 TPA remain applicable and the approach of thecourts, with the exception of the necessity to come within(03) 9 3 76 1 8 4 4 info@ergonomics.com.auMark Dohrmann and Partners Pty Ltd PO Box 27, Parkville VIC 3052Search M a rk’s cases by keyword at: www.ergonomics.com.auSEPTEMBER /OCTOBER 2011 ISSUE 106 PRECEDENT21
FOCUS ON THE AUSTRALIAN CONSUMER LAWThe bulk of authorities froms52 still apply; apart fromthe need to fall within thedefinition of a 'corporation',the courts' approach willremain the same.This means the provisions may apply concurrently w ithout limitingeach other's operation.' 9 Attorney-General's Department, TheAustralian Consumer Law - A guide to provisions, Commonwealthof Australia 2011, p4. http://www.consumerlaw.gov.au/content/the acl/downloads/ACL guide to provisions November 2010.pdfSimilarly, para [3.11] Explanatory Memorandum, Trade PracticesA m endm ent (Australian Consumer Law) A ct (No. 2) 2010 (Cth)notes s18 of the ACL replaces the repealed s52 of the TPA. Thesubstance of the drafting of the prohibition has not been changed,other than changing the reference to 'a corporation' to 'a person'.Accordingly, the well-developed jurisprudence relating to s52 ofthe TPA is relevant to the interpretation or understanding of themeaning and application of s18 of the ACL. 10 Section 5 TPAprovided the potential for extra-territorial operation.11 Explanatory Memorandum [80], 12 Houghton v Arm s (2006)CLR 553 at 563. 13 For a comprehensive explanation of thestructure and interrelationship of the CCA and ACL, see Bruce, Opcit, Chapters 1, 2 and specifically in relation to s18 para [3.7],14 It is noteworthy that this definition differs from the definitionof 'trade and commerce' in s4 CCA which accords w ith the TPAdefinition and thus does not make the reference to any businessor professional activity. 15 Larmer v Power Machinery Pty Limited(1977) ATPR 40-021, 17, 313. 16 Concrete Constructions (NSW)Pty Ltd v Nelson (1990) 169 CLR 594, ATPR 41-022 at 51, 363-51,364. 17 See, generally, Miller at [1 .S2.18.20] and Bruce at 3.9.18 Section 4(2)(a) TPA. 19 Collins Marrickville Pty Ltd v HenjoInvestments Pty Ltd (1988) 39 FCR 546 at 555 (Henjo), S & IPublishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1999) ATPR41-667 at 42, 506.20 Section 2(2): In this Schedule:(a) a reference to engaging in conduct is a reference to doing orrefusing to do any act, including:(i) the making of, or the giving effect to a provision of, acontract or arrangement; or(ii) the arriving at, or the giving effect to a provision of, anunderstanding; or(iii) the requiring of the giving of, or the giving of, a covenant;and(b) a reference to conduct, when that expression is used as a nounotherwise than as mentioned in paragraph (a), is a reference tothe doing of or the refusing to do any act, including:(i) the making of, or the giving effect to a provision of, acontract or arrangement; or(ii) the arriving at, or the giving effect to a provision of, anunderstanding; or(iii)the requiring of the giving of, or the giving of, a covenant; and(c) a reference to refusing to do an act includes a reference to:(i) refraining (otherwise than inadvertently) from doing that act;or(ii) making it known that that act will not be done; and(d) a reference to a person offering to do an act, or to do an act ona particular condition, includes a reference to the person makingit known that the person will accept applications, offers orproposals for the person to do that act or to do that act on thatcondition, as the case may be.'21 M iller & Associates Insurance Broking Pty Ltd v B M WAustralia Finance Ltd (2010) 270 ALR 204. 22 Section 4(2)(c)(i).Theprovision also extended to the proposed conduct of AerospatialeSociete Nationale Industrials v Aerospatiale Helicopters Pty Ltd2 2PRECEDENT ISSUE 106 SEPTEMBER / OCTOBER 2011& Ors (1986) ATPR 40-700. 23 Demagogue Pty Ltd v Ramensky(1993) ATPR 41-203 and recently M iller & Associates InsuranceBroking Pty Ltd v B M W Australia Finance Ltd (2010) 270 ALR204. See, too, Explanatory Memorandum [3.16]. 24 ParkdaleCustom Built Furniture Pty Ltd v Puxu Pty Ltd {Parkdale')D 982)149 CLR 191, Butcher at 49269. 25 McW illiams Wines Pty Ltd vMcDonald's System o f Australia Pty Ltd (McWilliams)( 1980) ATPR40-188 at 42,590 26 Parkdale, Butcher, Astrazeneca Pty Ltd vGlaxosmithkline Australia Pty Ltd (2006) ATPR 42-106.27 Global Sportsman Pty Ltd v M irror Newspapers Ltd (1984)ATPR 40-463. 28 Taco Bell
Consumer Law (ACL). Pt XIAA CCA Applies Schedule 2 as an applied law of a State or Territory 2. The defendant's activities are in trade or commerce Trade or commerce' is defined in s2(l) ACL in terms of such activity taking place within Australia or between Australia and places outside Australia. This accords with the definition in s4(l) CCA.
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