Page 2135 - Week 08 - Wednesday, 9 September 1992
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The modified definition has been used because it is simpler and easier to understand but does not impose any obligations on traders beyond those already in place under the Commonwealth Act. This means that, as is the case under the Commonwealth Act, anyone who buys consumer-type goods or services must not be misled about the purchase. If traders buy consumer-type goods for use in their businesses and they are misled and suffer loss because of it, they have the same rights as if they had bought the goods to use at home. For example, a trader who is misled about the carrying capacity of a passenger vehicle that he or she purchased for making business deliveries could bring an action for her or his lost earnings under clause 46.
The simplified definition of "consumer" is also used in Part III, which provides for the development of codes of practice for fair dealing between consumers and traders. As well as prescribing codes for traditional consumer-type transactions such as the purchase of specific goods or services, the Government will also be able to develop codes to cover a wider range of transactions. For example, real estate agents often manage residential properties for small investors as well as for people who need to rent their family homes on a one-off basis. It is appropriate that the Minister have the power to develop codes that are broad enough to cover both of these kinds of transactions. Similarly, the relationship between commercial and retail tenants and their landlords could be regulated by a code of practice.
Passing now to Part II of the Bill, I will outline the main provisions of this part. For the sake of completeness I will also indicate how the unfair practices provisions in this part relate to the enforcement provisions in Part IV. Clause 12 prohibits misleading or deceptive conduct generally. To recover any loss, or to get a court order for damages or for an injunction, it is sufficient for a consumer to show that he or she was misled by the trader. It is not necessary for the consumer to show that the trader tricked or deceived them, or that the trader intended to deceive them. However, because clause 12 is so broad, traders cannot be prosecuted for a breach of this provision. This allows traders a little leeway for new marketing promotion strategies, while maintaining a civil action. Nevertheless, if an individual consumer suffers a loss as a result of being misled or deceived, he or she will have access to a range of private law remedies. These include an action for damages under clause 46, or a compensatory order under clause 50.
Under clause 50 the court has the discretion to make any order which it considers will compensate for or prevent or reduce the likelihood of loss or damage to the applicant. The clause itself contains several examples of the kinds of orders the court can make. In addition, anyone can apply to the court for an injunction to restrain a breach or an attempted breach of clause 12. Again, the court has very wide powers. It can grant interim injunctions, or injunctions which direct traders to act in a particular way or refrain from acting in a particular way. With such a useful variety of remedies, it is not difficult to see why the equivalent Commonwealth provision has been called a plaintiff's new Exocet.
If clause 12 is the plaintiff's new Exocet, then clause 13 is the plaintiff's new smart bomb. Clause 13 prohibits unconscionable conduct in consumer-type transactions, where traders have the opportunity to take unfair advantage of the disparity in bargaining power between themselves and consumers. As with clause 12, traders cannot be prosecuted for a breach of this provision. Nor can
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