Melbourne Law School - Research Publications

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    Corporate Culture and Systems Intentionality: part of the regulator's essential toolkit
    Bant, E ; Faugno, R (ROUTLEDGE JOURNALS, TAYLOR & FRANCIS LTD, 2024-01-01)
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    Punitive Damages and the Place of Punishment in Private Law
    Goudkamp, J ; Katsampouka, E (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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    Misleading Silence
    Bant, E ; Paterson, JM ; Bant, E ; Paterson, JM (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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    Crown, Collingwood and the Corporate Conscience
    Bant, E ( 2021)
    The different failures at Crown and Collingwood shows that the law need to go beyond individuals when holding corporations to account.
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    Coming Clean on Hand Sanitisers
    Jane, A ; Paterson, J ; Bant, E ; Rizzi, M ( 2020)
    Why clarifying the distinction between ’therapeutic’ and ‘cosmetic’ hand sanitisers could be critical in the fight against COVID-19.
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    Holding Corporations to Account
    Bant, E ( 2020)
    The slippery concept of corporate guilt too often allows companies off the hook. The law needs reforming.
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    Evolution and Revolution: The Remedial Smorgasbord for Misleading Conduct in Australia
    Bant, E ; Paterson, J (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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    A Road Map to Decision Causation in Misleading Conduct and Failure to Disclose Cases
    Bant, E (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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    Remedies: Reflections and Perspectives
    Bant, E (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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    Recission, Restitution and Compensation
    Bant, E ; Degeling, S ; Varuhas, J (Hart Publishing, 2017)
    This chapter considers the nature of pecuniary awards and adjustments, including ‘indemnity’ orders, consequent on equitable rescission. Its essential thesis is that notwithstanding that the awards are often couched in terms of ‘compensation’, they can often be fruitfully analysed as restitutionary in nature or reflecting an implicit application of change of position considerations.