Alley v Gillespie

The High Court of Australia considered a dispute between the appellant, Alley, and the respondent, Gillespie, concerning the interpretation and application of certain provisions of the *Corporations Act 2001* (Cth) and the *Australian Securities and Investments Commission Act 2001* (Cth). The core of the disagreement revolved around whether certain conduct constituted misleading or deceptive conduct within the meaning of these legislative provisions.

The central legal issues before the High Court were: (1) whether the respondent's conduct in relation to the appellant was misleading or deceptive, or likely to mislead or deceive, in contravention of s 52 of the *Trade Practices Act 1974* (Cth) (now s 18 of the Australian Consumer Law) and s 12DA of the *Australian Securities and Investments Commission Act 2001* (Cth); and (2) if so, what remedies were available to the appellant. The Court was required to determine the scope of "misleading or deceptive conduct" in the context of financial services and the appropriate approach to assessing such conduct.

The High Court's reasoning focused on the objective test for misleading or deceptive conduct, which requires considering whether the conduct, viewed as a whole, has the capacity to mislead or deceive a reasonable member of the class of persons to whom it is directed. The Court analysed the specific communications and actions of the respondent, assessing whether they created a false impression or were likely to lead to a misunderstanding on the part of the appellant. The Court affirmed that the relevant inquiry is not whether the person was actually misled, but whether the conduct had the tendency or capacity to mislead. The Court also considered the principles governing the award of damages or other relief for contraventions of these provisions.