Consumer protection – Misleading or deceptive conduct

In Mitsubishi Motors Australia Ltd v Begovic [2023] HCA 43 (13 December 2023), the High Court unanimously found that a fuel consumption label, affixed to the windscreen of a new 2016 Mitsubishi MQ Triton 4×4 (Triton), was not misleading or deceptive, in breach of s18 of the Australian Consumer Law (ACL), because the label was mandated by law.

The first appellant (Mitsubishi) manufactures, imports and supplies Mitsubishi vehicles to dealers in Australia.

The second appellant (Northpark) is a Mitsubishi dealer. In 2017, the respondent, Mr Begovic, purchased a Triton from Northpark.

A fuel consumption label was affixed to the windscreen of the Triton.

The fuel consumption label was mandated by the Motor Vehicle Standards Act 1989 (Cth) (MVS Act) and a legislative instrument under the MVS Act, the Vehicle Standard (Australian Design Rule 81/02 – Fuel Consumption Labelling for Light Vehicles) 2008 (Cth) (ADR 81/02).

Soon after purchasing the Triton, Mr Begovic became unhappy with the Triton’s fuel consumption which exceeded the values marked on the fuel consumption label.


Mr Begovic filed a claim in the Victorian Civil and Administrative Tribunal (VCAT) alleging, among other things, that Mitsubishi and Northpark had contravened s18 of the ACL because the fuel consumption label was misleading or deceptive.

Mr Begovic relied on the results of tests carried out on Mr Begovic’s Triton which showed that the vehicle’s fuel consumption was higher than the values on the fuel consumption label.

The appellants appealed, unsuccessfully, to the Supreme Court of Victoria. The appellants’ subsequent appeal to the Victorian Court of Appeal was also unsuccessful.

Both the Supreme Court and the Court of Appeal rejected the appellants’ contention that the fuel consumption label, being mandated by law, including its form and content, could not have contravened s18 of the ACL.

The Court of Appeal considered that the MVS Act and ADR 81/02 did not require Mitsubishi or Northpark to offer the Triton for sale in the first place much less in circumstances where the fuel consumption label affixed to the Triton was misleading or deceptive.

The appellants were ultimately successful on appeal to the High Court. The High Court (Gageler CJ, Gordon, Steward, Gleeson and Jagot JJ) unanimously accepted the appellants’ “mandatory conduct” ground and allowed their appeal.


Their Honours, at [14], observed that s41 of the MVS Act deemed ADR 81/02 to be a “safety standard” under the ACL. Further, s106 of the ACL provides that a person must not supply goods in trade or commerce that do not comply with a safety standard.

Their Honours considered, at [66], that it was necessary to construe s18 of the ACL consistently with the provisions of the MVS Act. Their Honours, at [10], cited R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545(GMAC). In GMAC the Court held “[t]he unexpressed assumption which underlies the prohibition [in the predecessor provision to s18] is that conduct . . . is not conduct in which the corporation is required to engage by, or under the compulson of, some other law enacted in the interests of consumers”.

That is, the impugned conduct was voluntary. At [67], their Honours observed that GMAC was “an outworking of the interpretative principle that, in the event of apparent inconsistency of statutory requirements relating to the same subject matter (relevantly, consumer protection) and enacted by the same legislature, the general provision may need to be subordinated to the specific provision in order to alleviate the apparent conflict”.

Their Honours went on, at [68], to observe that the need to reconcile s18 of the ACL with another law cannot be avoided by characterising the impugned conduct (such as whether to supply goods at all) as voluntary.

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