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Furthermore, the Act authorizes private actions to be brought to enforce this provision. Lana believes that Phoebe's practices amount to an unfair restraint on free trade (and her ability to compete), thus her action is covered under the statute.
Conclusion: Under section 52 of the TPA, Lana is entitled to sue Phoebe for damages as she has been involved in misleading and deceptive conduct which has caused Lana's business no good.
Question 3 (b)
Issue: Is Lana's threatened action likely to succeed?
Rule: Section 52 of the TPA provides that: (pg 291)
A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Application: By advertising that her gelati is the best in town and made with the best quality natural ingredients, Phoebe may be stretching the truth, but she probably has not violated Section 52 of the TPA. A statement must induce consumers to buy a product in error or deception. Stating the product is the best in town probably does not rise to the level as either, as it common marketing parlance not likely to have a significant on most consumers. The fact that Phoebe's ingredients arrive in a tin does not in...
Therefore Lana has not proven that Phoebe committed any actual deceptive or misleading acts.
Conclusion: Lana does not allege facts sufficient to show that Phoebe has been involved in misleading and deceptive conduct.
Question 3 (c)
Issue: Can Phoebe argue that the prohibition from selling gelati is unenforceable under Part IVA of the Trade Practices Act?
Rule: Part IV A of the TPA act was unconscionable if a party to a transaction is under a 'special disability', the other party is or ought be aware of that disability, and that other party acts in a way that makes it unfair or unconscionable to accept the offer of the weaker party.
Application: According to part IVA of the TPA, Phoebe will have to prove that she or her customers are under a special disability in terms of consumer protection or business competition. There are no facts given to support such an assessment. While Chas behavior has in fact created a disadvantage for Phoebe, she will have separate civil remedies against him should she chose to pursue them.
Conclusion: A prohibition against Phoebe regarding the sale of gelati is not unenforceable under part IVA of the TPA.
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