It is obvious that establishing a duty of care in cases involving misstatements or misrepresentations when giving information or advice is a highly technical and complex matter.

Since 1974, the legislative provisions, originally in the Trade Practices Act and now in the Australian Consumer Law (ACL), prohibit misleading conduct in trade or commerce and make a wide range of remedies available for any breach of these provisions.

Provided that a misrepresentation, such as giving wrong information or advice, takes place 'in trade or commerce' it is likely that an action for misleading conduct under s 18 of the ACL would be preferable to an action in tort for negligent misrepresentation.

For more information about the requirements of s 18, see the module 'Circumstances that may invalidate a legal transaction'.