Gwaihir,Sorry it has taken so long for me to look at this. I was...

Gwaihir,

Sorry it has taken so long for me to look at this. I was hoping that someone else with expertise in the area would give it a go - but it doesn't look like that will happen.

I've had a look at the Trade Practices Act. The equivalent section to the one you mention regarding price in the Fair Trading Act is s53(e):

"A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services
(e) make a false or misleading representation with respect to the price of goods or services;"

However I am not convinced that shares, which are a type of property known as 'choses in action', are either goods or services within the meaning ascribed to those terms in the Act. If I am right on this then that would also be a fatal flaw in relation to the NSW Fair Trading Act.

I'm not sure where your reference to 'unfair tactics' comes from. I can't find it in the NSW Act. Presumably you are quoting from the Fair Trading Act in another state.

In any event I think that your letter would pack more 'legal' punch if the references to the Fair Trading Act were removed and replaced with a reference to s52 of the Trade Practices Act (TPA). As I said in my earlier post, the TPA has the advantage of being a Commonwealth Act therefore there are no problems with jurisdiction. S52 is, I believe, the most widely litigated section of the TPA. It was drafted extremely widely in order to catch a whole range of unfair conduct and the courts have a history of interpreting it with this in mind.

Accordingly point 6. of your draft letter would be changed to:

"If the ASX was not aware of this behaviour, does it consider that the behaviour contravenes s 52 of the Trade Practices Act 1974. S 52 states that, 'A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.'"