Evolution and Revolution: The Remedial Smorgasbord for Misleading Conduct in Australia

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. The prohibition and its remedial scheme have proven enormously influential, having been re-enacted, replicated and repeated dozens of times in different contexts under various Australian state and federal legislation. As a result, they reach into almost every corner of commercial life and dominate the litigation landscape. This paper will argue that this dominance has led the remedial scheme (including in its modern incarnation under the Australian Consumer Law) to have a very significant and ongoing ‘gravitational influence’ on the evolution of analogous common law and equitable remedies and, indeed, the wholesale understanding of the relationship between right and remedy in Australian law and practice. The analysis has implications for the broader theory and practice of the law of remedies that go well beyond the borders of Australian law.