Melbourne Law School - Research Publications
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ItemRecission, Restitution and Compensation(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.
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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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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.