[4] Section 12DA of the Australian Securities and Investment Commission Act 2001 prohibits misleading or deceptive conduct in financial services.
[6] The elements required to establish misleading or deceptive conduct are: "Trade or commerce" is given its ordinary construction, and applies not only to transactions between corporations and consumers, but to anyone providing or acquiring goods or services.
[10] When the allegedly misleading or deceptive conduct is directed towards the public at large, the relevant reaction is that of the ordinary or reasonable members of the class of prospective purchasers.
[9]: at [42] This means that so long as there is an element of reliance on the part of the claimant, a respondent could be found to have engaged in misleading or deceptive conduct even if they had every reason to believe that their representations were true.
Parties to a contract cannot exclude liability for misleading or deceptive conduct under section 18 of the Australian Consumer Law.
Terms that purport to do so will be unenforceable to protect the public interest in ensuring that statutory remedies are available to persons who are misled or deceived into entering an agreement.
Irrespective of the construction of these two special conditions it does not matter ultimately whether the impugned conduct with which this case is concerned falls literally within them or not.
[9]: at [49]-[50] Despite the strict liability nature of the offence, a person will not be deemed to have engaged in misleading or deceptive conduct where:[10]: at [123] There are no pecuniary penalties available for a breach of section 18.