Midland Metals Overseas Pte Limited v Australian Cablemakers Association Limited

Midland Metals Overseas Pte Limited (the appellant) appealed to the Court of Appeal from a decision of the primary judge concerning alleged contraventions of section 18 of the Australian Consumer Law (ACL). The dispute arose from letters sent by the Australian Cablemakers Association Limited (the respondent) to various government Ministers, which the appellant contended contained misleading or deceptive representations regarding electrical cable safety standards. The respondent argued that its conduct was not in trade or commerce, and that the letters did not have the tendency to lead the recipient Ministers into error.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether the conduct of the respondent in sending the letters to government Ministers constituted conduct "in trade or commerce" for the purposes of the ACL. Secondly, the Court had to consider whether the letters contained representations that were misleading or deceptive, or had a tendency to mislead or deceive, within the meaning of section 18 of the ACL. This involved assessing whether the objective characteristics of the recipient Ministers were such that the letters were likely to lead them into error.

In its reasoning, the Court of Appeal applied established principles regarding the interpretation of section 18 of the ACL. The Court affirmed that the inquiry into whether conduct is misleading or deceptive must be conducted prospectively, by reference to the objective characteristics of the intended audience. The Court found that while it was common ground that the letters contained incorrect representations, the crucial question was whether these representations were likely to lead the recipient Ministers into error. The Court also considered the appellant's attempt to raise new issues on appeal, applying the principles from *Coulton v Holcombe* and *Metwally v University of Wollongong (No 2)*, which generally prevent parties from reframing their case on appeal if it was not put before the trial judge.

The Court of Appeal ultimately dismissed the appeal and ordered the appellant to pay the respondent's costs of the appeal.