Statutory Causation in Cases in Misleading Conduct: Lessons from and for the Common Law

Causation serves as the central gatekeeper to the smorgasbord of remedies offered in response to the various statutory prohibitions on misleading conduct in the Australian Consumer Law, Australian Securities and Investments Commission Act 2001 (Cth) and the Corporations Act 2001. Given this role, the pervasive uncertainty surrounding the nature, scope and operation of statutory causation requirements under the Acts requires attention. This article investigates three preliminary and as yet unresolved questions of statutory causation, focusing on their operation under the Australian Consumer Law: what is meant by causation under the statute; the nature of the factual links in the causal enquiry; and what is the applicable test of statutory causation. In addressing these questions, the paper draws on general law principles of causation, to the extent that those principles reflect and promote the aims of the statutory orders and are consistent with the statutory scheme as a whole. The analysis not only sheds light on the position under statute but suggests a number of areas in which common law concepts of causation might usefully be clarified.