What must be established to prove a breach of section 9, according to the court's decision in Red Eagle?

To establish a breach of section 9 under the Fair Trading Act, as determined by the court in Red Eagle, it is essential to demonstrate that the conduct in question was capable of misleading a reasonable person. This standard emphasizes that it is not necessary to show intent to deceive or actual financial loss; rather, the focus is on the nature of the conduct and its effect on the average consumer. If a reasonable person could be misled by the conduct, this provides the necessary grounds for a breach of this section.

This assessment allows the law to protect consumers by ensuring that misleading or deceptive practices in trade or commerce are addressed, regardless of the intentions behind them. The requirement for conduct to be capable of misleading reinforces the principle that consumer protection is paramount and that businesses must ensure that their representations and conduct are honest and transparent.