Misleading and Deceptive Conduct Lawyers Brisbane
A false statement does not need to be defamatory to be actionable. Where a competitor, a former associate, or a disgruntled customer makes false statements about your business, your products, or your commercial standing, the law provides remedies. They are often more powerful than defamation.
Defamation is the claim most people reach for when a damaging false statement is made. But for businesses, defamation is frequently unavailable: corporations with ten or more employees cannot bring a defamation claim under Australian law. And even where defamation is available, it may not be the most effective or the most commercially appropriate claim.
Misleading and deceptive conduct under the Australian Consumer Law and the tort of injurious falsehood are the principal alternatives. They operate differently, they require different elements to be proved, and they produce different remedies. In many cases, all three causes of action are available and the right strategy involves selecting the combination that best serves the client’s commercial objective.
Boyle Litigation acts for businesses, executives, and high-profile individuals in misleading conduct and injurious falsehood claims across Queensland and nationally. These claims sit at the intersection of reputation and commerce. We bring the same commercial precision to them that we bring to every high-stakes dispute we run.
Who We Act For
We act for clients on both sides of these disputes:
Claimants:
- Businesses whose products, services, or commercial standing have been misrepresented by a competitor
- Companies excluded from defamation by the employee threshold who need an alternative cause of action
- Individuals and professionals whose reputation has been damaged by false statements made in a commercial context
- Business owners harmed by false statements about their financial standing, credit, or title to property
- Parties to commercial transactions where pre-contract misrepresentations have caused loss
Defendants:
- Businesses or individuals who have received a letter of demand or been served with proceedings alleging misleading conduct or injurious falsehood
- Companies defending claims where the alleged misrepresentation was accurate, genuinely held, or not capable of causing the loss claimed
- Parties resisting injunctions sought to restrain the publication of statements they are entitled to make
Three Causes of Action. One Objective.
When a damaging false statement is made about a person or a business, three distinct legal claims may be available. Understanding how they differ, and which combination is most appropriate, is the first step in any strategy.
Defamation
When a damaging false statement is made about a person or a business, three distinct legal claims may be available. Understanding how they differ, and which combination is most appropriate, is the first step in any strategy.
Misleading and Deceptive Conduct
Conduct in trade or commerce that misleads or deceives, or is likely to mislead or deceive. Available to all businesses regardless of size. No requirement for intent. Remedies include damages, injunctions, and contract variation.
Injurious Falsehood
A false statement about a business, its goods, services, or title to property, published maliciously and causing pecuniary loss. Available to corporations of any size. Requires proof of malice and specific financial loss.
Large corporations with ten or more employees cannot bring a defamation claim under Australian law. Misleading and deceptive conduct and injurious falsehood are the primary remedies available to corporate clients in these circumstances.
Misleading and Deceptive Conduct Under the Australian Consumer Law
Section 18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) prohibits conduct in trade or commerce that is misleading or deceptive, or likely to mislead or deceive. It is one of the most frequently litigated provisions in Australian commercial law and its reach is broad.
What Conduct Is Caught
The provision applies to any conduct in trade or commerce that creates a false impression, regardless of whether the person engaging in the conduct intended to mislead or deceive. What matters is the effect of the conduct on the relevant audience, not the state of mind of the person engaging in it.
Conduct that has been held to contravene section 18 includes:
- False or misleading statements about a competitor's products, services, or business practices
- Misrepresentations about the quality, performance, or characteristics of goods or services
- False statements about a person's qualifications, credentials, or professional standing
- Misleading statements about the financial position, solvency, or creditworthiness of a business
- Conduct creating a false impression that a business is associated with, endorsed by, or affiliated with another party
- Silence in circumstances where there is a duty to disclose and the failure to disclose creates a false impression
- Comparative advertising that misrepresents a competitor's product or service
The 'In Trade or Commerce' Requirement
Section 18 only applies to conduct engaged in as part of, or in connection with, trade or commerce. This is a broad concept. It includes conduct by businesses dealing with each other, not only consumer transactions. Statements made in the course of negotiations, in marketing materials, in industry communications, and in public commentary about a competitor’s business all fall within the concept of trade or commerce where they are made in that commercial context.
Private conduct, personal statements made outside any commercial context, and statements by individuals acting in their personal capacity rather than in connection with any business, may fall outside the provision. Where the line falls depends on the specific facts.
No Requirement for Intent
The misleading and deceptive conduct prohibition does not require proof that the defendant intended to mislead. A business can contravene section 18 while acting in good faith and genuinely believing the statements it made were true. This makes the provision both broader and more accessible than defamation, which requires establishing that the statement is false, and injurious falsehood, which requires proof of malice.
The absence of an intent requirement also limits the value of the defence that the defendant honestly believed what they said. In defamation, honest opinion is a defence. In misleading and deceptive conduct, the focus is on the effect of the conduct, and a genuinely held but objectively false belief does not excuse the conduct.
Silence and Misleading Conduct
A person can engage in misleading conduct by saying nothing. Silence constitutes misleading conduct where the circumstances give rise to a reasonable expectation of disclosure and the failure to disclose creates a false impression. This arises most commonly in pre-contractual negotiations, where one party withholds information that the other party would reasonably expect to be told and would regard as material to their decision.
Claims arising from silence are among the most fact-intensive in this area. They require careful analysis of what was said, what was withheld, what the parties’ reasonable expectations were, and what impression was created by the combination of what was disclosed and what was not.
Remedies Under the Australian Consumer Law
The remedies available for misleading and deceptive conduct are broader and more flexible than those available in defamation:
The provision applies to any conduct in trade or commerce that creates a false impression, regardless of whether the person engaging in the conduct intended to mislead or deceive. What matters is the effect of the conduct on the relevant audience, not the state of mind of the person engaging in it.
Conduct that has been held to contravene section 18 includes:
- Damages: compensation for loss caused by the misleading conduct, including consequential losses flowing from transactions entered into in reliance on the conduct
- Injunction: an order restraining the defendant from continuing or repeating the misleading conduct, including restraining publication or repetition of a false statement
- Corrective advertising: an order requiring the defendant to publish a correction at their own expense
- Contract avoidance: where a contract was entered into in reliance on misleading conduct, the court can set the contract aside and restore the parties to their original positions
- Contract variation: the court can vary the terms of a contract to correct the effect of the misleading conduct
- Ancillary orders: including orders for the payment of compensation to affected parties and orders for the provision of information
There is no requirement to establish that the defendant acted with malice. Damages are recoverable on a straightforward causation analysis: what loss did the claimant suffer as a result of the misleading conduct?
Who Can Bring a Misleading Conduct Claim
Any person who suffers loss or damage as a result of misleading or deceptive conduct can bring a claim. This includes corporations of any size, individuals, partnerships, and other legal entities. The absence of a size-based restriction is one of the key advantages of the Australian Consumer Law over defamation for corporate claimants.
A claimant does not need to have been misled themselves. Where misleading conduct causes loss to a third party, that third party has a claim even if the conduct was directed at another person. This can be significant in competitive markets where false statements about a business are made to its customers or suppliers rather than to the business itself.
Injurious Falsehood
Injurious falsehood, also called trade libel or slander of goods, is a tort at common law that provides a remedy where a false statement is made about a business, its products or services, or its title to property, and that false statement causes financial loss.
While misleading and deceptive conduct focuses on the effect of the conduct on those who receive it, injurious falsehood is narrower and more demanding. It requires proof of three elements that misleading conduct does not: the statement must be false, it must have been made maliciously, and it must have caused specific financial loss.
The Elements of Injurious Falsehood
To succeed in an injurious falsehood claim, a claimant must establish:
Element
False statement
Publication to a third party
Malice
Pecuniary loss
What it requires
The statement must be false as a matter of fact. Opinions, honest assessments, and statements that are substantially true will not support the claim.
The statement must be communicated to someone other than the claimant. Publication to a single third party is sufficient.
The defendant must have acted with malice: either knowing the statement was false, or acting with reckless indifference to whether it was true or false. Ill-will alone is not sufficient without the relevant state of mind.
The claimant must establish specific financial loss caused by the false statement. General damage to reputation is insufficient without proof of identifiable financial consequences.
- Key issues in practice
Distinguishing statements of fact from statements of opinion. The same words can constitute a fact in one context and an opinion in another.
Online statements, reviews, and industry communications all satisfy the publication requirement.
Malice is the most difficult element to establish and the one most actively contested. Evidence of the defendant’s knowledge and motive is critical.
Requires evidence of lost contracts, lost customers, or other quantifiable financial harm directly attributable to the false statement.
When Injurious Falsehood Is the Right Claim
Injurious falsehood has a more demanding proof burden than misleading and deceptive conduct. It also requires proof of malice, which is not required for an ACL claim. The question of when to plead injurious falsehood, alongside or instead of an ACL claim, is a strategic one.
Injurious falsehood is most useful in circumstances where:
- The claimant is a large corporation that cannot bring a defamation claim and needs a common law tort that covers reputation damage in addition to the ACL claim
- The facts clearly support proof of malice, such as where the defendant knew the statement was false or had an obvious motive to harm the claimant
- The claimant wants to recover aggravated or exemplary damages, which are available in injurious falsehood but not straightforwardly available under the ACL
- The statement relates to title to property or to the specific quality of goods, which is the traditional heartland of the tort
- A parallel defamation claim is available for an individual plaintiff and injurious falsehood is pleaded alongside it for the corporate entity in the same group
Statements About Title to Property and Goods
The original and most clearly established application of injurious falsehood is to statements that deny or cast doubt on a person’s title to property or on the quality of goods offered for sale. A statement that a vendor does not own the property they are selling, or that a manufacturer’s products are defective when they are not, are classic examples.
In the modern commercial context, this extends to statements about a business’s intellectual property rights, the validity of its licences, its compliance with regulatory requirements, and the authenticity of its products. False statements in these areas, made to customers or in the market generally, can cause rapid and significant commercial damage.
How These Claims Interact With Defamation
Misleading and deceptive conduct and injurious falsehood do not replace defamation. They complement and, in many cases, extend it. The relationship between the three claims is a critical strategic question in any reputation dispute involving a commercial dimension.
.
Available to large corporations?
Intent required?
Damage presumed?
Limitation period
Injunction available?
Corrective advertising?
Concerns Notice required?
Serious harm threshold?
Defamation
No (10+ employees excluded)
No (but relevant to defences)
Yes (for individuals)
1 year from publication
Yes
No
Yes
Yes (post-2021 reforms)
- Misleading conduct (ACL)
Yes
No
No: loss must be proved
6 years
Yes
Yes
No
No
- Injurious falsehood
Yes
Yes (malice required)
No: pecuniary loss must be proved
6 years (tort limitation)
Yes
No
No
No
In practice, the most effective claims in business reputation disputes combine an ACL misleading conduct claim with defamation where available, and add injurious falsehood where malice can be established and specific loss proved. The combination creates maximum flexibility in remedy and maximises pressure on the defendant.
Common Scenarios
Competitor Statements
A competitor falsely states, in marketing materials, on social media, or in industry communications, that your products are inferior, non-compliant, or unsafe. Or they imply that you are insolvent, under investigation, or facing legal proceedings when you are not. These statements cause customers to move their business and suppliers to withdraw credit.
This is a core misleading and deceptive conduct scenario. Where malice can be established, injurious falsehood adds a further cause of action. Where the competitor is an individual or small entity, defamation may also be available.
Online Reviews and False Ratings
A business is targeted by false reviews on Google, Yelp, or industry-specific platforms. The reviews are fabricated or are made by persons who have never dealt with the business. They describe products or services as defective, unsafe, or dishonest when they are none of these things.
False reviews in trade or commerce are capable of constituting misleading and deceptive conduct. Where the reviewer can be identified, a claim may also lie in defamation, or where the reviews have caused specific financial loss and malice can be established, in injurious falsehood.
False Statements in Tender Processes
During a competitive tender, a participant falsely represents to the procuring entity that a competitor lacks the necessary qualifications, licences, or experience. The false representation is acted upon and the contract is awarded to the party making the misrepresentation.
The competitor who loses the tender has a claim for misleading and deceptive conduct against the party that made the false representation, and potentially for injurious falsehood where the representation was knowingly false and the competitor can prove the specific financial loss suffered.
False Creditworthiness or Solvency Statements
Rumours are spread in a market or industry that a business is insolvent, unable to meet its obligations, or under investigation by a regulator. The statements are false. Customers cancel orders. Suppliers withdraw credit. A financier calls in a facility on the basis of the rumours.
These statements, if made in trade or commerce, are capable of constituting misleading and deceptive conduct. They also represent a classic injurious falsehood scenario where malice and specific financial loss can be established.
Pre-Contractual Misrepresentations
A party enters a commercial transaction on the basis of representations made during negotiations that later prove false: representations about the financial performance of a business being acquired, the characteristics of an asset being purchased, or the regulatory position of a product being distributed.
These are standard misleading and deceptive conduct scenarios. The remedy extends beyond damages to contract variation or avoidance, making the ACL claim often more powerful than a common law misrepresentation claim in this context.
When to Act and How Quickly
Misleading conduct and injurious falsehood claims do not carry the one-year limitation period that applies to defamation. The Australian Consumer Law and tort limitation periods are six years. But limitation period is not the right measure of urgency.
The damage caused by a false statement compounds with time. A false statement about insolvency reaches more creditors every day it circulates. A false product review reaches more customers every week it remains visible. A false statement in a tender process may result in a contract being awarded before proceedings can be commenced.
We move quickly on these claims. Where the conduct is ongoing, an injunction is frequently the most important first step. Courts can grant interlocutory injunctions restraining the publication or repetition of false statements on very short notice, before the underlying proceedings are even heard.
An injunction does not require the claim to be finally proved. It requires a serious question to be tried, that the balance of convenience favours restraint, and that damages alone would not adequately compensate the claimant. In a misleading conduct or injurious falsehood claim involving ongoing publication, these conditions are frequently met.
How We Approach These Claims
Reputation disputes that have a commercial dimension require a different approach from pure defamation cases. The commercial consequences are often the primary concern. Vindication, correction, and the prevention of future damage matter, but so does the quantification and recovery of financial loss.
Our approach:
- Rapid assessment of the statement, its publication, and its commercial effect: we establish quickly whether there is a viable claim and which cause of action gives the strongest position
- Identification of the defendant: where the statement has been made anonymously or through an intermediary, we advise on the steps available to compel identification
- Preservation of evidence: false statements disappear. We advise on immediate steps to preserve screenshots, metadata, and publication records before they are removed
- Strategic selection of claim: defamation, misleading conduct, injurious falsehood, or a combination, depending on the facts and the remedy sought
- Urgent injunctive relief where the conduct is ongoing: we move fast and prepare injunction applications efficiently
- Negotiation from strength: a well-prepared litigation position, backed by credible evidence, consistently produces better negotiated outcomes including corrections, retractions, and financial settlements
- Litigation to judgment where the other side will not engage or cannot be trusted to honour a negotiated outcome
We act for claimants and defendants. If you have received a letter of demand alleging misleading conduct or injurious falsehood, we advise on the strength of the claim being asserted and develop a defence strategy calibrated to the specific facts.
Why Boyle Litigation
- Specialist commercial litigation firm: reputation disputes with a commercial dimension are core work
- Principal is a QLS Accredited Specialist in Commercial Litigation
- Command of Australian Consumer Law, injurious falsehood, and defamation and how they interact
- Strategic claim selection: we identify the right combination of causes of action for your situation and your objective
- Fast action when the conduct is ongoing: injunctions, urgent court orders, and evidence preservation
- Discreet by default: reputation disputes carry personal and commercial sensitivity that demands careful handling
- Acts for claimants and defendants: independent advice on the merits, not a standard template
- Brisbane-based, acting nationally in the Federal Court and state Supreme Courts
My company has more than ten employees. Can we still bring a claim for a damaging false statement?
Yes. A corporation with ten or more employees cannot bring a defamation claim under Australian law, but it is not without remedy. Misleading and deceptive conduct under section 18 of the Australian Consumer Law is available to corporations of any size where the false statement was made in trade or commerce. Injurious falsehood is also available to corporations of any size where a false statement about the business, its products, or its property has been published maliciously and caused specific financial loss. In many cases, these claims are more commercially effective than defamation even where defamation is technically available.
What is the difference between misleading conduct under the ACL and injurious falsehood?
The key differences are in what must be proved and what remedies are available. Misleading and deceptive conduct under the Australian Consumer Law does not require proof of intent: a business can contravene section 18 while acting in good faith if the effect of the conduct is to mislead or deceive. Injurious falsehood requires proof of malice: the defendant must have known the statement was false, or acted with reckless disregard for its truth. Misleading conduct does not require proof of specific financial loss in order to obtain an injunction, though loss must be proved for a damages claim. Injurious falsehood requires proof of specific pecuniary loss. In practice, where the facts support it, both claims are frequently pleaded in the alternative alongside defamation.
Can I get an injunction to stop a competitor from making false statements about my business?
Yes. Courts can grant interlocutory injunctions restraining the publication or repetition of false statements where there is a serious question to be tried, the balance of convenience favours restraint, and damages alone would not adequately compensate the claimant. For misleading and deceptive conduct claims under the Australian Consumer Law, the court has express power to grant injunctions. The interlocutory application can be made on short notice where the conduct is urgent. We advise on the strength of the injunction application and prepare these applications efficiently when the situation demands it.
A competitor is spreading false rumours about our solvency and it is costing us customers. What can we do?
False statements about a business’s financial position or solvency, made in trade or commerce, are capable of constituting misleading and deceptive conduct under the Australian Consumer Law. Where the statements are knowingly false and have caused specific financial loss, they may also support an injurious falsehood claim. The most urgent steps are to preserve the evidence of the statements, identify who is making them, and apply for an injunction if the statements are still being circulated. A well-drafted letter of demand, backed by a credible litigation position, frequently produces a retraction and cessation of the conduct before proceedings are filed. Contact us for a confidential assessment of your position.In the event that you require legal advice in respect of a creditor of a company that has gone into a form of insolvency administration, then we invite you to contact us. Our team of corporate insolvency lawyers at our Gold Coast and Brisbane offices can provide trusted insolvency advice and take steps to protect your interests.
What does 'malice' mean in an injurious falsehood claim?
In the context of injurious falsehood, malice means that the defendant made the false statement knowing it was false, or with reckless indifference to whether it was true or false. It does not require proof of spite or ill-will, although evidence of motive to harm the claimant strengthens the case significantly. A defendant who genuinely and honestly believed the statement to be true, even if unreasonably, may avoid liability for injurious falsehood. This distinguishes injurious falsehood from misleading and deceptive conduct, where the state of mind of the defendant is irrelevant to liability. Establishing malice typically requires evidence of what the defendant knew at the time, which makes disclosure of documents and other evidence gathering particularly important.
Can I recover loss of profits in a misleading conduct or injurious falsehood claim?
Yes, in both cases, subject to establishing the necessary elements. In a misleading and deceptive conduct claim, damages are available for loss or damage suffered as a result of the misleading conduct, which can include lost revenue, lost contracts, lost profits, and other consequential economic loss. In injurious falsehood, damages must be proved as specific pecuniary loss caused by the false statement, which typically means identifying the contracts or customers lost as a direct result of the statement. In both cases, the loss must be established with appropriate evidence and must be causally connected to the relevant conduct or statement.
How long do I have to bring a misleading conduct or injurious falsehood claim?
The limitation period for a misleading and deceptive conduct claim under the Australian Consumer Law is six years from when the cause of action arose. The limitation period for injurious falsehood as a tort is also six years under the Limitation of Actions Act 1974 (Qld). These are significantly longer than the one-year limitation period that applies to defamation claims. However, limitation period is not a good measure of urgency. Evidence disappears, false statements compound in their effect, and contracts are lost. Acting promptly produces better outcomes in every case.
I have received a letter of demand alleging misleading and deceptive conduct. What should I do?
You should obtain legal advice immediately. A letter of demand alleging misleading conduct is a serious document that may precede court proceedings. You have rights: the claim may be misconceived, overstated, or based on a mischaracterisation of what was said or done. The statement you made may have been substantially true, may have been an opinion rather than a statement of fact, or may not have been made in trade or commerce. How you respond to the letter of demand affects the trajectory of the dispute and your exposure on costs if the matter proceeds. We advise on the strength of the claim being asserted and develop a response strategy calibrated to the specific facts.
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