Section 51a of the Trade Practices Act 1974 (Cth) - Misrepresentations as to Future Matters - Current Issues in Interpretation

Abstract

Section 51A of the Trade Practices Act 1974 (Cth), dealing with misrepresentations as to future matters, presents problems of interpretation. Recent case law has clarified the application of the provision in respect of three issues: (1) what the defendant must do to forestall the operation of the deeming provision in subs(2), which provides that a representation as to a future matter shall be deemed to be misleading unless the representor adduces specified evidence to the contrary; (2) whether s51A creates a substantive defence available in all situations where a corporation is alleged to have made a misrepresentation as to a future matter, or is of merely evidential significance; and (3) how s51A operates in relation to secondary liability pursuant to s75B of the act, for a substantive contravention of the act. It is argued that s51A imposes an evidential burden merely upon the representor and not a burden of proof; and that s51A does create a substantive defence available in all situations where a misleading representation as to a future matter is alleged.