In the Age of Statutes, Why Do We Still Turn to the Common Law Torts?: Lessons from the Statutory Prohibitions on Misleading Conduct in Australia

Abstract

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.

Keywords: statutory prohibition, misleading conduct

JEL Classification: K00, K19