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Despite the very substantial body of primary sources and secondary literature on Australia's much-litigated statutory provisions proscribing misleading or deceptive conduct, the courts have provided little in the way of assistance about how to establish the knowledge base of the target audience at whom the public statement was directed. The purpose of this case note is to compare and contrast two recent decisions of the High Court of Australia that highlight the difficulties faced by applicants in attempting to establish a contravention of the relevant legislation where conduct is directed at a segment of the public or the public as a whole.
I INTRODUCTION
Section 52 of the Trade Practices Act 1974 (Cth) ('TPA') contained a prohibi- tion of conduct in trade or commerce that was 'misleading or deceptive or [was] likely to mislead or deceive'. It provided the basis for a statutory cause of action for damages. It has been replaced by s 18 of the Australian Consumer Law ('ACL'). The ACL is located in sch 2 of the Competition and Consumer Act 2010 (Cth). The legislative transition from the TPA to the ACL came about as a result of a desire to bring together in one place the consumer protection provisions of the former TPA and to have a single national generic consumer law that applies uniformly in all jurisdictions - Commonwealth, states and territories.1 The catalyst for the ACL reforms was the two studies completed by the Productivity Commission: the 2006 report, Review of the Australian Consumer Product Safety System,2 and the 2008 report, Review of Australia's Consumer Policy Framework.3
Section 52 of the TPA was the model for s 1041H of the Corporations Act 2001 (Cth) ('Corporations Act').4 To determine whether conduct is misleading for the purposes of s 1041H, the courts apply the same principles that were applied in relation to s 52 of the TPA, and now apply in relation to s 18 of the ACL.5 Section 52 of the TPA was also the model for s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) ('ASIC Act'),6 which prohibits misleading or deceptive conduct in relation to financial services or financial products. Parliament did not define the term 'misleading or decep- tive conduct' in s...