Is Section 52 of the Trade Practices Act (Australia) too broad?
...iff would be unsuccessful in their claim. The Trade Practices Act Section 52 on the other hand, can be deployed in cases where a duty of care doesn’t exist. The only limitation that a plaintiff has to satisfy in order to sue under the Trade Practices Act Section 52 is that a corporation in trade or commerce must have made the statement. It is not even necessary for the misstatement to occur. Something that was likely to be deceptive or mislead is enough to sue under the Trade Practices Act Section 52. Also, the plaintiff is not required to prove that anyone was actually misled or deceived. An example of a case where this clearly shown is the ‘Taco Co of Aust Inc Vs Taco Bell Pty Ltd ’. In this case there were two restaurants with similar names in different countries. Both parties took legal action after Taco Bell Pty Ltd set up a shop with a similar name in the same city. The Federal Court held that Taco Co of Aust Inc had not engaged in misleading or deceptive conduct as it had been in business for five years before the other company opened up. The other company on the other hand, could mislead patrons of the more established business. I believe this to be a major factor when deciding if the Trade Practices Act Section 52 is too broad. It showed that no one was actually misled, but they were likely to be misled. Another reason why it could be said that the Trade Practices Act Section 52 is too broad is the way it deals with exclusion clauses and disclaimers. Under common law, they work fairly well to prove that the plaintiff did not rely entirely on the representation. Under the Trade Practices Act Section 52 they are not so effective. The case ‘Bateman Vs Slatyer ’ is the perfect example. In this case Bateman sued Slatyer under the Section 52 of the Trade Practices Act for giving her incorrect information about a franchise that Bateman was thinking about purchasing. All statements that Slatyer said proved to be false, but Slatyer argued that a disclaimer in the contract they signed would be enough for him not to be liable. The court held that the disclaimer was not effective against misleading or deceptive condu...