Section 52 and misrepresentations to a class: principles, proof and appelllate review

This article examines the application of s 52 of the Trade Practices Act 1974 (Cth) to alleged misrepresentations made by a respondent to the public or to a smaller class of persons (collectively, misrepresentations to a class). Inquiry is directed to the principles for testing when a representation to a class contravenes s 52, matters of proof, and the principles of appellate review applying in this category of case. Sub-topics include the reasonable or ordinary members of class test, and whether these terms are synonymous; the issue of whether there is requirement that there be a significant effect on the applicant's interests where a misrepresentation to a class is alleged; whether the class members' error must be a material one in a case where a third-party respondent is claiming loss; the admissibility of expert evidence in s 52 class cases; and whether there is a presumption in favour of the trier of fact when conducting the rehearing of s 52 class (and indeed other s 52) cases.