Melbourne Law School - Research Publications
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ItemNo Preview AvailableMisleading Silence(Hart Publishing, 2020)This collection brings together a team of outstanding scholars from across the common law world to explore the treatment of misleading silence in private law doctrine and theory. Whereas previous studies have been contractual in focus, here the topic is explored from across the full spectrum of private law. Its approach encompasses equitable and common law principles, as well as taking an integrated approach to key statutory regimes. The highly original contributions draw on rich theoretical, historical, comparative, cross-disciplinary and doctrinal perspectives. This is truly a landmark publication in private law, with no counterpart in the common law world.
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ItemEvolution and Revolution: The Remedial Smorgasbord for Misleading Conduct in Australia(Florida International University, 2020)In Australia, the revolutionary Trade Practices Act 1974 (Cth) introduced, in section 52, a simple and powerful prohibition on conduct in trade or commerce that is “misleading or deceptive or likely to mislead or deceive.” The prohibition applies to business-to-business transactions as well as to those involving consumers and contains no requirement of fault on the part of the contravenor. Its purposes are explicitly instrumental: to protect consumers and promote fair business practices. The Act also introduced a veritable ‘smorgasbord’ of remedies for victims of misleading conduct that were equally revolutionary, granting to courts a wide-ranging remedial discretion to award relief that includes, for example, the power to vary contracts retroactively.
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ItemLimitations on Defendant Liability for Misleading or Deceptive Conduct Under Statute: Some Insights from Negligent Misstatement(Hart Publishing, 2015)Liability for having induced another to act to their detriment on the basis of a negligent misstatement can arise under the general law through a number of different avenues. The statement may be the subject of a contractual warranty. Liability may arise extra-contractually pursuant to the common law and equitable doctrines of mistake, estoppel, misrepresentation, and, following the decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd, negligent misstatement. All these claims have different elements and yield diverse remedial outcomes.
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ItemIntuitive Synthesis and Fidelity to Purpose? Judicial Interpretation of the Discretionary Power to Award Civil Penalties under the Australian Consumer Law(Federation Press, 2019)The fertility of judicial techniques of statutory interpretation is uniquely evidenced in the development of the jurisprudence supporting the award of civil pecuniary penalties for specific contraventions of the Australian Consumer Law (ACL) and equivalent provisions in the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).
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ItemMisleading Conduct before the Federal Court: Achievements and Challenges(Federation Press, 2018)The fundamental norm against misleading others has assumed particular dominance in the Australian private law landscape. The categorical statutory prohibition on conduct that is misleading or ‘likely to mislead’ was introduced in s 52 of the Trade Practices Act 1974 (Cth) (‘TPA’), subsequently s 18 of the Australian Consumer Law (‘ACL’), along with wide-ranging accompanying remedies. As the then Chief Justice of the Federal Court of Australia, Michael Black, noted in his essay on the occasion of the 30th anniversary of the Federal Court, the statutory prohibition on misleading conduct has been of considerable importance to the history and evolution of the Court. It ‘introduced a fundamental new element into commercial litigation’, offering a simple and attractive gateway to extensive remedial relief. The Court’s initially exclusive jurisdiction in respect of the prohibition saw it quickly develop a substantial influence over a very wide range of commercial disputes, many of which were ‘far removed from the field of “consumer protection"'.
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ItemConsumer Redress legislation: Simplifying or Subverting the Law of Contract(Wiley-Blackwell Publishing, 2017)© 2017 The Author. The growth of statutory consumer protection regimes in modern commercial societies has the potential profoundly to disrupt the private law landscape. Such schemes aim to increase access to justice for consumers by offering simplified and clear suites of rights and corresponding remedies. In so doing, however, they affect core areas of private law rights and remedies, and may come to undermine or replace existing contractual principles and policies. The result could be an incoherent system of private law with different principles and rules applying to commercial and consumer transactions. Coherence in the law requires that lawyers abandon their traditional ‘oil and water’ attitudes to legislative schemes and confront directly the interactions between these two bodies of law. This paper engages in that enquiry by considering the relationship between the relatively new consumer redress provisions in the Consumer Protection from Unfair Trading Regulations 2008 and general law principles.
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ItemShould Specifically Deterrent or Punitive Remedies be made Available to Victims of Misleading Conduct under the Australian Consumer Law?(LexisNexis Australia, 2019)The ‘smorgasbord of remedies’ available to victims of misleading conduct under the Australian Consumer Law (‘ACL’) and parallel legislation is usually regarded as comprehensive, outstripping the remedies offered at common law for equivalent misconduct. Although the primary aim of the damages and ‘compensation orders’ is to ‘compensate’, or ‘prevent or reduce’ ‘loss or damage’ suffered because of misleading conduct, orders of this kind may have a strong deterrent effect, promoting the protective purposes of the statute. These provisions sit alongside an extensive suite of enforcement provisions designed to deter misleading conduct, including allowing the regulator to seek criminal and civil pecuniary penalties for contraventions of the specific prohibitions on ‘false or misleading representations’. While this combination might appear to offer complete and effective deterrent measures apt to change commercial misbehaviours, this article argues that the remedial armoury available to achieve the deterrent purpose of the ACL could be made stronger and more effective. In this sphere, the analogous common law torts and equitable doctrines that respond to misleading conduct provide extensive and invaluable remedial templates for regulators and those concerned with law reform, including disgorgement and punitive damages. Drawing on these insights, we argue that such additional remedial options may prove valuable in promoting the consumer protection purposes of the statute. Additionally, they may serve to provide significant redress to victims in cases where damages and compensatory orders are inadequate.
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ItemStatutory Causation in Cases in Misleading Conduct: Lessons from and for the Common Law(LexisNexis, 2017)Causation serves as the central gatekeeper to the smorgasbord of remedies offered in response to the various statutory prohibitions on misleading conduct in the Australian Consumer Law, Australian Securities and Investments Commission Act 2001 (Cth) and the Corporations Act 2001. Given this role, the pervasive uncertainty surrounding the nature, scope and operation of statutory causation requirements under the Acts requires attention. This article investigates three preliminary and as yet unresolved questions of statutory causation, focusing on their operation under the Australian Consumer Law: what is meant by causation under the statute; the nature of the factual links in the causal enquiry; and what is the applicable test of statutory causation. In addressing these questions, the paper draws on general law principles of causation, to the extent that those principles reflect and promote the aims of the statutory orders and are consistent with the statutory scheme as a whole. The analysis not only sheds light on the position under statute but suggests a number of areas in which common law concepts of causation might usefully be clarified.
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ItemNo Preview AvailableStatutory Interpretation and the Critical Role of Soft Law Guidelines in Developing a Coherent Law of Remedies in Australia(ANU Press, 2017)This chapter considers three particular challenges faced by metalegislation such as the Australian Consumer Law (ACL). The first is to ensure coherent development of the law both within the legislative regime and also between that regime and the common law context in which it is squarely situated.The second, related challenge is to promote the principled and coherent development of an important legal regime in a context where its beneficiaries are unlikely to pursue their rights in court.
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ItemExploring the Boundaries of Compensation for Misleading Conduct: The Role of Restitution under the Australian Consumer Law(Sydney Law School, 2019)The Australian Consumer Law ('ACL') provides a comprehensive suite of remedial orders available in response to conduct contravening the statutory prohibitions on misleading conduct. However, the potential remedial awards are constrained by the language of the statute, which appears to have an overriding compensatory focus. This limitation presents a significant challenge to courts seeking to make meaningful reparation to victims of significant or intentionally misleading conduct in cases where their 'loss or damage', as commonly conceptualised, is either difficult to assess or wholly absent. This article explores compensatory and other orders for contraventions of the prohibition on misleading conduct in light of these boundaries. In particular, the analysis considers the broader characterisation taken by courts to the concept of 'loss or damage' under s 23 7 of the ACL, which has underpinned the award of orders akin to rescission and restitution. The article also examines the nature of and justifications for remedies awarded on a 'user principle' for misleading conduct.