In Astram Financial Services Pty Ltd v Bank of Queensland Ltd (2010) FCA 101, a former franchisee of the Bank of Queensland (Bank), Astram Financial Services Pty Ltd (Astram) sought relief for alleged breaches of sections 52 and section 51AC of the Trade Practices Act (the Act).

The court in this instance followed the precedent in Butcher v Lachlan Elder Realty Pty Ltd and found that thequestion of whether conduct is misleading or deceptive or is likely to mislead or deceive is a question of fact.

In determining whether a contravention of s 52 has occurred, the task of the court is to examine the relevant course of conduct as a whole. The effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct.

The court went on to say that the issue of whether the conduct of the Bank was misleading or deceptive is required to be determined by reference to what a reasonable person would have made of its actions. The court concluded that the information provided by the Bank to the franchisee clearly indicated that the responsibility for assessing the business risk involved in undertaking a franchise operation was the responsibility of Astram and its principals and rejected the arguments that  the Bank’s conduct was misleading or deceptive.

This decision demonstrates the approach of the courts when assessing misleading and deceptive conduct claims while highlighting the onus the courts place on the franchisees’ due diligence when entering into franchise agreements and the courts’ desire to look at the parties’ conduct as a whole.