Vincent owns and operates the "Green Wok" caf at Raffles Place. The caf specialises in take away salads using ingredients that are fresh and organic. He also sells beefsteak using pure Angus beef. Green Wok's logo is green and has a symbol of a red tomato in the middle of it. His business has been operating for two years and his customer base has been growing steadily as word of hisinnovative and high-quality cuisine has spread. Although Vincent has recently taken on some lucrative catering contracts, most of his steady income comes from regular customers who work nearby. Two months ago, David opened a new caf called "Green Wiki" across the road from the Green Wok. The logo of Green Wiki is green and has a symbol of a brown mushroom on it. Green Wiki's customers are mainly from the caf's blog. For the first month, Vincent was not at all concerned about competition as the new caf had a mainstream menu and seemed to be catering for a different clientele looking for coffee and cake. However a few weeks ago, Vincent was shocked to see a new display sign outside Green Wiki advertising that the caf uses only fresh and organic fruit and vegetables and that all cakes were gluten free. Moreover, Green Wiki's speciality beef soup is advertised as using fresh and pure Angus beef. Vincent becomes more concerned when he sees some of his regular customers buying lunch at Green Wiki and notices that the food prices are much cheaper than the Green Wok. He investigates further and discovers that David's fruit and vegetables are not coming from a reputable organic supplier and the "gluten free" cakes are frozen cakes thatcontain wheat flour. The fresh and pure Angus beef is actually frozen and a mix of beef and horsemeat. David argues that Vincent is mistaken. Vincent is angry because he knows that he has lost some regular customers since David opened his business. Is Vincent likely to succeed in an action against David for misleading or deceptive conduct under section 18 of the Australian Consumer Law? Issue Is Vincent likely to succeed in an action against David for misleading or deceptive conduct under section 18 of the Australian Consumer Law? Rule "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive", Section 18 ACL 2. A 'consumer contract' is a contract for the supply of goods, services or an interest in land where the acquisition is wholly or predominantly for personal, domestic or household use or consumption, Section 23(3) ACL 3. Any person who suffers loss (including a competitor) because a business has engaged in misleading and deceptive conduct can commence proceedings and seek a remedy under section 18, Eveready Australia Pty Ltd v Gillette Australia Pty Ltd [2000] ATPR 41-51 4. The intention of the business who has engaged in the conduct is irrelevant, Henjo Investments Pty Ltd v Marrickville Pty Ltd [1989] 89 ALR 539 5. In assessing the conduct the standard is lower than the 'reasonable person' standard, it is the standard of the 'unsuspecting modest member of the community', Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 6. "Engaging in conduct" includes making a statement claim or promise - Gillette Australia Ltd v Energiser Australia Pty Ltd (2002) 7. "Trade or commerce" means trade or commerce within Australia, or between Australia and places outside Australia. Section 2 ACL 8. As a general rule, a person who is not a party to the contract (a third party) cannot sue or be sued for breach of the contract. This is known as the doctrine of privity of contract, Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 9. A condition is a term of the contract of fundamental importance. In the absence of such a term, the party favoured by the term would not have entered into the contract in the first place. If one party breaches a term that is a condition, the other party has the right to: (i) confirm the contract and recover damages, or (ii) terminate the contract and recover damages. Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 Apply "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive", Section 18 ACL Is it lawful for David to advertise and provide goods or services by misleading or deceiving consumers? Any person who suffers loss (including a competitor) because a business has engaged in misleading and deceptive conduct can commence proceedings and seek a remedy under section 18 ACL, Eveready Australia Pty Ltd v Gillette Australia Pty Ltd [2000] ATPR 41-51 Has Vincent suffered loss because of David's advertisement? Is Vincent a competitor and/or a consumer? As a competitor/consumer, is Vincent entitled to bring an action under s 18 ACL? The intention of the business who has engaged in the conduct is irrelevant, Henjo Investments Pty Ltd v Marrickville Pty Ltd [1989] 89 ALR 539 Is it relevant whether David intended to mislead or deceived consumers? The intention of the business who has engaged in the conduct is irrelevant, Henjo Investments Pty Ltd v Marrickville Pty Ltd [1989] 89 ALR 539 Is it relevant whether David intended to mislead or deceived consumers? In assessing the conduct the standard is lower than the 'reasonable person' standard, it is the standard of the 'unsuspecting modest member of the community', Taco Company of Australia Inc v Taco Bell Pty Ltd 91982) 42 ALR 177 What is David's conduct that might be misleading or deceptive? "Engaging in conduct" includes making a statement claim or promise - Gillette Australia Ltd v Energiser Australia Pty Ltd (2002) Is David's conduct in trade or commerce? "Trade or commerce" means trade or commerce within Australia, or between Australia and places outside Australia. Section 2 ACL Who is the target audience? Who does come within the target audience? Is that audience likely to be misled or deceived by David's advertisement? Conclusion Vincent as a competitor/consumer is/is not entitled to bring an action under s 18 ACL ... By ..., David has/has not engaged in conduct prohibited by s 18 ACL ... brought to the attention of the offeree. Dickenson v Dodds (1876) p 258. Please help complete the IRAC answer, matching apply and conclusion