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Does positive representations of “Debits and Credits” business name, Janice’s accounting degree and accounting experience contravene section 18?

 

A person must not, in trade or commerce, engage in misleading or deceptive conduct. Engaging in ‘conduct’ is referred to doing or refusing to do any act, and is engaged in ‘trade or commerce’ if it has a trading or commercial character, including promoting a new business. Accordingly, Janice “engaged in conduct” by representing the business name and her experience and qualifications. This was in “trade or commerce” as it was incidental to promoting her business. The “misleading or deceptive” test is whether the whole conduct would lead into error reasonable members of the public, whom it is directed. In this case, the audience for this website are small businesses seeking low cost services. Reasonable members of this class would be business savvy and understand the name “Debits and Credits” does not represent an accountant’s level of expertise. Further, Janice’s representations about her accounting degree and experience in “various accounting roles” would not lead a reasonable member of this class to believe that she is acting in the scope of a professional accountant while undertaking bookkeeper work. Given that a reasonable audience member is unlikely to be misled, Janice’s conduct has not breached section 18.

Does Janice’s promotional slogan used for official communications and on her website page contravene section 18?

 

As above, the presentation of the slogan on the page is conduct engaged in trade or commerce. However, mere puffery is generally not misleading or deceptive. Whether a representation is puffery depends on the ordinary incidents and character of commercial behaviour. For example, the expression “Better Frames, Better Lenses, and The Best Fit You’ve Ever Had” on an advertising poster is puffery as it is general and incapable of being objectively proven. In Janice’s case, the expression “Brisbane’s Best Option for your Book-keeping Needs” is puffery and does not breach section 18. However, there is argument that “certified results” is not puffery, it suggests that Janice’s services have received formal certifications, which could be objectively proven. Accordingly, Janice’s slogan may breach section 18 as it promises “certified results.”

Has Janice contravened section 18 by displaying her friends’ positive testimonials?

A testimonial or opinion can be misleading where there is no proper basis for making it – for example, where a testimonial, purported to be from a customer, was in reality made by an actor. In Janice’s case, the testimonials were misleading, as they were made by friends who were not customers and so there was no basis to confirm the services quality. While Janice had not herself submitted the testimonials, she may still be found to have “engaged in conduct” as an intermediary who passed on information in circumstances where a member of the target audience would think she adopted or endorsed the testimonials. A search engine company was found to have made representations in respect of sponsored links in its search results, even thought it was only an information conduit. In Janice’s case, it is likely that a reasonable member of the small business class would consider the testimonials adopted by her. Breach can be established under section 18 by allowing those testimonials to remain.

Has s29 been breached by allowing the display of false testimonials?

By knowingly allowing the false testaments to remain on her businesses Facebook page she assisted to make it seem as though the testaments are from legitimate clients.

Dose Janice have Defences?

No defences strongly apply to the situation.

Was Darren owed a duty of care?

Accountants have a recognised exercisable duty of care when performing services for clients to avoid foreseeable loss, including pure economic loss. Janice will owe Darren this duty if she can be regarded as an ‘accountant’.

Otherwise, Janice may have a duty to not give careless advice resulting in pure economic loss. Darren must show that he received advice from Janice of a business nature, Janice knew or ought to have known that Darren intended to rely on this advice and Darren’s reliance was reasonable. The first and second elements can be established, as Darren requested Janice’s advice for the purpose of minimising his business’s tax requirements. While Janice never claimed to hold a CPA, the third element may be satisfied because Janice professed to have accounting qualifications.

Accordingly, Janice is deemed an accountant as he has the relevant qualifications even if she has not the relevant experience in tax accounting. Therefore, Janice owes Darren a duty to take reasonable care when advising on taxation matters

Did Janice breach her duty of care?

An objective standard of care is applied to determining breach. Generally, the standard is that of a reasonable person exercising due care and diligence. However, by advising Darren on taxation, Janice held herself out as having a special skill in providing taxation accounting advice, and must perform her duties to the standard of care of a qualified accountant. Inexperience in matters such as taxation will not be sufficient to lower this standard.

To establish breach, the risk of harm must be reasonably foreseeable, not insignificant and such that a reasonable person would have taken precautions given the probability and likely seriousness of harm and the burden of taking precautions. The risk of Darren suffering financial harm is a reasonably foreseeable and not a “far-fetched and fanciful” result of providing incorrect advice. Janice could have referred Darren to a specialist to avoid harm, and would have caused minimal burden to her, especially in light of the risks and the serious harm that resulted.

According to the legislative standard for professionals a professional does not breach a duty if they acted in a way that was widely accepted by substantial peer professional opinion as competent practice. As Janice is an accountant, she would need to demonstrate her competence in forming her advice through evidence of peer opinion; otherwise, she will breach her duty of care.

Did Darren suffer damage?

The damage must be caused by the breach and must not be too remote a consequence. The test for causation: ‘but for’ the defendant not meeting the relevant standard of care, would the plaintiff have suffered the loss anyway? In this case, Darren would likely not have received the tax bill had Janice properly advised him, and was reasonably foreseeable consequence of incorrect advice. Accordingly, the causation and remoteness tests are satisfied.

Are defences available to Janice?

On these facts, contributory negligence, volenti or joint illegal enterprise are not applicable.

In conclusion, Darren could bring a negligence action against Janice.

 

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
Imbree v McNeilly (2008) 236 CLR 510
Specsavers Pty Ltd v Luxottica Retail Pty Ltd [2013] FCA 648
Wyong Shire Council v Shirt (1980) 146 CLR 40
Civil Liability Act 2003 (Qld)
Competition and Consumer Act 2010 (Cth)
‘Difference between accountants, charted accountants and CPAs’, TRAK Accountants, 2016 <http://www.trakaccountants.com.au/chartered-accountants-cpas/>