Melbourne Law School - Research Publications
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ItemCorporate Culture and Systems Intentionality: part of the regulator's essential toolkit(ROUTLEDGE JOURNALS, TAYLOR & FRANCIS LTD, 2023-01-01)
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ItemPunitive Damages and the Place of Punishment in Private Law(Wiley, 2021-11-01)Abstract It has long been orthodoxy that punitive damages, because they are awarded in order to punish, are an anomalous remedy. So entrenched is this understanding that it has never been seriously challenged. However, even apparent truisms about the law should be questioned and, accordingly, this article offers a rival account. It contends that the deeply ingrained view that punitive damages are an aberration is a half‐truth because several other remedial rules are also aimed, at least in certain circumstances, at punishment. We concentrate in this regard on the doctrine of remoteness and its attenuation where the defendant has intentionally injured the claimant, aggravated damages, the account of profits remedy and general damages. Overthrowing the orthodox understanding regarding punitive damages has important prescriptive implications. In particular, it follows that the belief that punitive damages are an alien presence in private law supplies no basis for confining the jurisdiction to award them.
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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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ItemA Road Map to Decision Causation in Misleading Conduct and Failure to Disclose Cases(Australian Lawyers Alliance Ltd, 2020)Statutory concepts of causation have been front and centre in a series of recent Federal Court and Supreme Court decisions addressing cases of misleading conduct. The statutes all provide compensatory remedies for loss or damage suffered ‘because of’, ‘by’ or ‘as a result of’ misleading conduct. A particularly difficult question is how a failure to disclose some fact or matter can cause a person to suffer loss or damage. How can a person rely on something that was not said?
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ItemRemedies: Reflections and Perspectives(Singapore Academy of Law, 2016)As Andrew Phang JA reminds us in his leading article in this special issue, the law of remedies has always been a subject of acute, perhaps pre-eminent, interest to counsel and clients engaged in private law disputes. It may be added that transactional lawyers are also only too aware of its significance in contract planning and drafting, as recent decisions on the doctrines of penalties by the highest courts in England and Australia attest.' However, its proper appreciation across legal practice has not always been reflected in the teaching and formal study of the subject.
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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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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.
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ItemIn the Age of Statutes, Why Do We Still Turn to the Common Law Torts?: Lessons from the Statutory Prohibitions on Misleading Conduct in Australia(LexisNexis, 2016)One unique feature of Australian Consumer Law is that the protection afforded by the statutory prohibition on misleading conduct is not limited to individual consumers but extends to all parties in ‘trade or commerce’. Liability under the statutory regime does not require any element of fault and offers a broad range of remedies to successful plaintiffs. One might expect a diminished role for common law torts in this context. However, while this is perhaps true of the torts of passing off and deceit, the tort of negligent misrepresentation continues to influence commercial litigation. This article explores this trend and the possible reasons for it. What has happened in Australia in regard to the statutory prohibition on misleading conduct may provide lessons in other contexts and for other jurisdictions about the relationship between the common law and overlapping statutory claims.