Australian consumer law

1754 Pages·2015·9.496 MB·English

by  Adrian Coorey

Australian Consumer Law
Adrian Coorey
BEc, LLB (Hons I) (Macq), LLM (Hons II) (Cantab), BCom (Macq)
LexisNexis Butterworths
Australia
2015
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National Library of Australia Cataloguing-in-Publication entry
Author: Coorey, Adrian.
Title: Australian Consumer Law.
Edition: First edition.
ISBN: 9780409339031 (pbk).
9780409339048 (ebk).
Notes: Includes index.
Subjects: Consumer protection — Law and legislation —
Australia.
Dewey Number: 343.94071
© 2015 Reed International Books Australia Pty Limited trading as LexisNexis.
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Foreword
The year 2011 marked a major reform in consumer policy framework in
Australia with the consolidation and replacement of 17 existing national, state
and territory laws in one single national consumer law: the Australian
Consumer Law (ACL). This piece of law created a uniform set of rights and
obligations for all across states and territories and has become the
cornerstone of consumer protection in Australia.
This book offers a timely and comprehensive account of the ACL. It
provides a clear outline of its legislative background and history, in-depth
analysis of the provisions with references to well-selected case law and
detailed analysis of the relevant enforcement powers and remedies.
Perhaps the most widely-known consumer protection provisions are those
dealing with misleading or deceptive conduct or misrepresentations made by
persons. It is therefore fitting that the author has devoted four chapters to
these specific provisions. Impressively, the author has examined these
provisions in a wider context and provided an interesting comparison
between the ACL provision on misleading or deceptive conduct with similar
causes of actions in other areas of law, such as torts and contract. This offers
an interesting and rare perspective on this key consumer protection provision
to students of law and is of significant practical relevance to practitioners.
I congratulate the author and the publisher on the publication of this
important work on a subject that is of increasing significance in Australia. I
have no doubt it will be an invaluable source of knowledge and assistance to
all that study or practise in this area of law.
Professor Allan Fels AO
Former Chairman, Australian Competition and Consumer Commission
26 November 2014
Preface
There is no doubt that the most significant change to consumer protection
law in Australia since the enactment of the former Pt V of the Trade Practices
Act 1974 (Cth) was the introduction of the Australian Consumer Law (ACL).
The ACL commenced on 1 January 2011 and replaced 17 different laws on
consumer protection. The ACL is a single, national consumer protection law
that applies consistently in all Australian jurisdictions.
The administrative provisions of the ACL are contained in Pts XI and
XIAA of the Competition and Consumer Act 2010 (Cth) (CCA) and the
substantive provisions are contained in Sch 2 of the CCA.
The substantive provisions of the ACL are voluminous. Schedule 2 of the
CCA contains 287 sections and is divided into five chapters, 20 Parts, 45
Divisions and 25 Sub-Divisions, and consists of over 67,000 words.
The purpose of this book is to provide a clear, concise and comprehensive
explanation of all key areas of the ACL, including the enforcement powers of
the ACL regulators and the availability of private and public remedies.
The book has been designed primarily to accommodate both
undergraduate and postgraduate university students who study the ACL, and
to aid legal researchers, staff of ACL regulators, lawyers and barristers who
practise in this area.
Readers should note that the book contains some attempts at humour and
reference to famous musicians and movie characters, particularly in the
hypothetical problem sections at the end of each chapter. I do not intend to
offend anyone with what has been described to me as a ‘lawyer’s typical bad
attempt to make a joke’. I sincerely apologise if anyone is offended by my
light humour, offered in the hope that through the problems and exercises,
readers will gain a better understanding of the ACL.
All of the drafting and editing work of this book was done after working
hours and on weekends. The book was written over a lengthy period of time
and I am forever indebted to all who contributed to it.
In particular, I am most grateful for the enormous amount of editing work
that was done by Peter Renehan, Felicity Lee, Chris Xie, Jack Ducommun and
the LexisNexis Butterworths editorial team. I thank you all for your
dedication and hard work.
However, the greatest sacrifices that were made while writing this book
came from my two greatest loves of all time — my wonderful, darling wife, Dr
Pornsakol Coorey, and my extra-super-special daughter, Catherine Coorey
(Little C). I love you both always and forever.
This book is dedicated to you both, as well as to my family, and especially
to my mother and my late father, who worked tirelessly all of their lives to
provide me with the best education they could afford.
My father passed away while I was in the midst of writing this book. The
passing of my father has been the greatest loss to our family and we will never
forget him for being the best dad in the world.
Adrian Coorey
Sydney
29 November 2014
Publisher’s Note
The scenarios described in the Hypothetical Problem Questions at the end of
each chapter are entirely fictitious, and so are the characters in them. Any
similarities between the characters’ names and those of famous people are
purely for lighthearted amusement.
Table of Cases
References are to paragraphs
10th Cantanae Pty Ltd v Shoshana Pty Ltd (Sue Smith case) (1987) 79 ALR
299 …. 8.127, 8.128, 8.132
A
Abundant Earth Pty Ltd v R & C Products Pty Ltd (1985) 59 ALR 211 …. 4.73
ACCC v 1Cellnet LLC [2005] FCA 856 …. 14.207
— v 4WD Systems Pty Ltd (2003) 200 ALR 491 …. 13.42, 13.47, 14.194
— v ABB Power Transmission [2004] FCA 819 …. 14.110
— v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169 ….
14.22, 14.55, 14.60, 14.67, 14.100, 14.425, 14.426, 14.428
— v ACN 135 183 372 (in liq) (formerly known as Energy Watch Pty Ltd)
[2012] FCA 749 …. 14.25, 14.82, 14.123
— v Adepto Publications Pty Ltd [2013] FCA 247 …. 8.92, 13.52, 13.75,
14.123
— v Advance Medical Institute Pty Ltd (admin apptd) [2011] FCA 103 ….
7.149
— v AGL Sales Pty Ltd [2013] FCA 1030 …. 14.87, 14.114
— v AI Constructions (ACT) Pty Ltd [2010] FCA 1377 …. 14.123
— v AirAsia Berhad Co [2012] FCA 1413 …. 9.192, 14.25, 14.123, 14.222,
14.232, 14.234, 14.235
— v Albert (2005) 223 ALR 467 …. 13.45, 13.50
— v Allergy Pathway Pty Ltd [2009] FCA 960 …. 3.11, 8.77, 13.375
— v — (No 2) [2011] FCA 74 …. 12.60, 12.61
— v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324 …. 6.126, 13.81