Under section 80(1) of the Competition and Consumer Act 2010 (Cth) an injunction can be obtained to stop a breach of the Act. For example, to prevent the publication of misleading or deceptive advertising. In addition, the Act enables the Minister or the Australian Competition and Consumer Commission (ACCC) to apply for an order directing publication of an advertisement to rectify the misleading information [s 86D].
Where a corporation or person breaches the Act the court can grant a wide range of further orders varying the contractual relationship between a consumer and a trader. Such orders may include a payment for damages or an order directing work to be done, as well as an order to refund the money or return the property [ s 87]. The Act also allows an action for damages caused by the contravention of the Act [s 236].
The expense of such an action may be lessened by two devices. First, a consumer can rely on the result of a prosecution by the ACCC in proving her or his civil case. Prosecutions by the ACCC are, however, generally restricted to cases of national importance. In practice, consumers will not often be in a position to take advantage of this provision. Secondly, the Act provides that legal or financial aid may be given in certain circumstances.
It should be stressed that a consumer can only seek an ancillary order or damages under the Act if she or he can show that the loss is the result of a contravention of the Act. For example, if a company breaks a law that prohibits deceptive conduct and a consumer suffers loss as a result (by relying on such deceptive conduct) then she or he may seek damages under the Act.
This example should be contrasted with a situation where a consumer seeks damages for the breach of an implied term. In this case, the consumer may rely on the statutory condition created by the Act, but sue for damages at common law. The reason for this is that the remedies given by the Competition and Consumer Act only operate in relation to contraventions of the Act. Where the Act prohibits certain conduct, engaging in that conduct amounts to a contravention of the Act. On the other hand, the Act does not always prohibit conduct but instead creates certain legal rights (for example, the implied conditions in contracts or manufacturers' warranties). A breach of a statutory implied condition or warranty gives the consumer a right to seek damages or rescission at common law, not under the Act. This is a very complex area of law and legal advice should be sought.
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