19 December 2023
Last week, the High Court held that a party is unlikely to have engaged in misleading or deceptive conduct if it has made a misrepresentation that is otherwise compliant with a different, more specific, statutory requirement with the similar purpose of consumer protection.
Despite this decision, manufacturers and suppliers that are required to comply with statutory labelling requirements should seek to ensure that all of their “conduct” separate to any potential misleading label is true and accurate.
In 2017, Mr Begovic commenced a claim in the Victorian Civil and Administrative Tribunal (VCAT) against Mitsubishi and the dealer who sold him his vehicle (collectively, Mitsubishi) alleging that the fuel consumption of the vehicle exceeded the fuel consumption values on the label applied to the windscreen. Mr Begovic claimed that such conduct was misleading or deceptive in breach of the Australian Consumer Law (ACL).
Relevantly, in compliance with the Motor Vehicle Standards Act 1989 (Cth) and the Vehicle Standard (Australian Design Rule 81/02 – Fuel Consumption Labelling for Light Vehicles) 2008 (Cth), Mitsubishi was required to apply a sticker to the windscreen of the vehicle which described the fuel consumption in “urban”, “extra-urban” and “combined” scenarios.
VCAT found that Mitsubishi had engaged in misleading or deceptive conduct because the fuel consumption of Mr Begovic’s vehicle was significantly greater than the label.
Mitsubishi appealed to the Supreme Court of Victoria, and then the Court of Appeal, arguing that a manufacturer that was required by law to apply a fuel consumption label to a vehicle, “the form and content [of] which are prescribed by law”, could not be found to have engaged in misleading or deceptive conduct in breach of the ACL.
Both courts dismissed the appeals finding that a label which was applied in compliance with other laws could nevertheless be misleading or deceptive in breach of the ACL.
The High Court unanimously held in favour of Mitsubishi.
First, the High Court applied its earlier decision of R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (GMAC). That decision was said to be an outworking of the principle that in the event of inconsistency of statutory requirements relating to the same subject matter (in this case, consumer protection), the general provision may need to be subordinated to the specific provision in order to alleviate the apparent conflict. The High Court also noted that “consideration of the detail of the statutory provisions in the specific factual context will be required to decide the proper focus of the inquiry in each case.”
Secondly, the High Court noted that circumstances may have been different if Mitsubishi had falsely represented that the actual vehicle sold conformed with the relevant type or class of vehicle. That would likely depend on what was done or said at the time of sale. There was no evidence in this case that Mitsubishi had done anything other than apply the relevant label.
Thirdly, the High Court found that where the conduct in trade or commerce said to be allegedly misleading or deceptive is the same conduct required by another consumer protection law, the latter law cannot be avoided by characterising the decision to engage in trade or commerce as voluntary.
This article was written with the assistance of Caitlin Littler, Seasonal Clerk.
 Mitsubishi Motors Australia Ltd & Anor v. Begovic  HCA 43.
 (1977) 137 CLR 545.
Be the first to receive the latest articles, news and publications.
2024 is off to brisk start in the cyber, privacy and data space – regulatory developments in cyber security and artificial intelligence (AI) continue at pace.
An increase in enforcement action by the Regulator under the Payment Times Reporting Act 2020 (Cth) (PTR Act) has been happening over the last 12 months. Companies covered as reporting entities...
Treasury has released a detailed consultation paper seeking views on whether Australia’s current merger control regime is effective and the available options for reform, drawing extensively on...