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Will apportionment of responsibility for misleading conduct erode the consumer protection potency of the Trade Practices Act 1974?

Christensen, Sharon A. & Stickley, Amanda P. (2006) Will apportionment of responsibility for misleading conduct erode the consumer protection potency of the Trade Practices Act 1974? Australian Business Law Review, 34(2), pp. 119-138.

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Abstract

In the past arguments advocating the stemming of the ever arching reach of the misleading and deceptive conduct provisions of the Trade Practices Act 1974 (Cth) by limiting damages awards to loss for which the contravenor is responsible, has fallen largely on deaf judicial ears. While some members of the judiciary have advocated a fair and just remedial response to misleading conduct based on responsibility of others, while accepting responsibility should play an integral part, have not been prepared to take this step without express legislative authority. The landmark High Court decisions of Henville v Walker (2001) 206 CLR 459; 182 ALR 37 and I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; 192 ALR 1 rather than dampening past criticisms added further impetus to the calls for legislative reform, which have been answered by the introduction of the concepts of contributory negligence and proportionate liability to the TPA. While the new provisions provide the courts with discretion to distribute liability for loss based upon responsibility, the judicial attitudes expressed in previous decisions raise new questions about how the existing consumer protection policy of the TPA will interact with the new apportionment provisions. This article aims to examine how, in light of past judicial utterances, a fair and just remedial response will be maintained consistent with the consumer protection purposes of the Act.

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ID Code: 10249
Item Type: Journal Article
ISSN: 0310-1053
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Law not elsewhere classified (180199)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2006 Thomson Legal and Regulatory
Copyright Statement: Reproduced in accordance with the copyright policy of the publisher.
Deposited On: 19 Oct 2007
Last Modified: 29 Feb 2012 23:23

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