Comparison of Generic Consumer Protection Legislation Professor Stephen Corones Professor Sharon Christensen Faculty of Law Queensland University of Technology
Remedies for breach of implied terms State and Territory legislation
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- 4.4.1 Comparative Table
3.46 Remedies for breach of implied terms State and Territory legislationThe general provisions of the Sale of Goods Acts are substantially the same in each State and Territory. In cases of breach of contract, the remedies available to a consumer are:
3.47 Enforcement Powers
Apart from initiating court proceedings, the ACCC has an important educative role through the publication of brochures, guidelines and media publicity. The ACCC may take civil action on behalf of a person who suffers damage. Section 155 of the TPA confers powers on the ACCC to obtain information, documents and evidence when investigating possible contraventions of the TPA. Since 1 January 2007, the ACCC must seek a warrant to enter and search the premises of, and acquire information from, parties it believes might have contravened the TPA. Persons who suffer loss or damage may also bring private civil actions under the TPA. The TPA allows private actions for injunctions (s. 80) and damages (s. 82) for contravention of unfair practices in Pt V Div 1. Private parties initiate the majority of cases in relation to unfair practices in Pt V Div 1. The ability for private actions enables other companies to instigate action where false advertising or other misleading conduct harms their business. 3.48 Remedies
3.49 Material differences State and Territory Government consumer affairs agencies handle the majority of consumer protection matters. The ACCC concentrates on significant matters that cross state boundaries, involve corporations or require a national approach. The Federal Court has jurisdiction to hear matters under Pt VC of the TPA. Under cross-vesting rules, Supreme Courts in each State may hear certain criminal matters, depending on the particulars of a given case. Lower courts, such as State or Territory District Courts or Small Claims Tribunals, may hear civil matters depending on the amount of damages involved. Pt VIA: Proportionate liability for misleading or deceptive conduct 4.1 Introduction As part of the Ipp reforms to the law of negligence, the Commonwealth and States introduced the concept of proportionate liability for certain claims involving economic loss or property damage. The overall objective of proportionate liability is to ensure that those who are jointly or severally liable in respect of the "same loss or damage" are not exposed to paying for the whole of the loss caused, but are only required to compensate the injured party for the proportion of the loss that is relative to their culpability. This results in an obvious benefit to wrongdoers and their insurers who, once their proportion of responsibility is determined, cannot be required to contribute to the damages payable by another "concurrent wrongdoer" in the claim. Theoretically, the proportioning of loss between co-respondents should not impact on the policy of ensuring an injured party receives the whole of the loss suffered by awarding compensation under s 82. When examined more closely, however, the drafting of the proportionate liability provisions exposes a potential threat to the underlying policy of the TPA, by shifting the risk of recovery of compensation awarded from the wrongdoers to the claimant. This shift is of most concern in the case of claims by consumers against several wrongdoers for misleading or deceptive conduct under s 52 TPA. 4.2 TPA Framework The Commonwealth has introduced proportionate liability for claims against wrongdoers for damages under s 82 for economic loss or damage to property caused as a result of a contravention of s 52 TPA (s 87CB). If the provisions are applicable to a claim the concurrent wrongdoers will only be liable for the proportion of the claim ordered by the court, rather than being jointly and severally liable for the whole of the claim (s 87CF). For the claim to be apportionable there must be a concurrent wrongdoer. This is one of 2 or more persons whose “acts or omissions caused independently or of each other or jointly, the damage or loss that is the subject of the claim". It is irrelevant that a wrongdoer is insolvent, being wound up or died. This has the potential to disadvantage consumers where one or more of the wrongdoers is insolvent or ceased to exist. A wrongdoer is not entitled to the benefit of proportionate liability if they have fraudulently or intentionally caused the loss of the claimant (s87CC). Such a wrongdoer will be an excluded wrongdoer and liable jointly and severally for the loss suffered. The proportionate liability provisions are also stated as not preventing: (i) a person being vicariously liable for a proportion of the claim for which another is liable; (ii) a partner from being held severally liable with another partner fro a proportion of a claim; (iii) the operation of any other Act to the extent that is imposes several liability on any person in respect of an apportionable claim.
4.4.1 Comparative Table
Under the TPA an apportionable claim must be a claim for damages under s 82 for economic loss or property damage arising from a contravention of s 52. The operation of the definition is further clarified in s 87CB(2) which provides that a single apportionable claim will exist in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind). Under the State legislation proportionate liability provisions generally apply to claims in contract, tort or otherwise for economic loss or property damage arising from a failure to take reasonable care, or a claim for economic loss or property damage arising from misleading or deceptive conduct under the equivalent to s 52. A claim for personal injury is not an apportionable claim. 4.4.2 Material differences Other material differences between the States in the definition of apportionable claim are: (i) Qld and ACT exclude from an apportionable claim any claim by a consumer. In Qld a consumer is an individual whose claim is based on right relating to goods or services where they are acquired for domestic, personal or household use or professional services acquired for the individuals use other than for a business carried on by the individual. In the ACT it includes personal financial advice. (ii) In Vic a claim under s 9 of the FTA (misleading conduct) is not limited to economic loss or property damage. (iii) ACT excludes claims for discrimination, claims under the Road Transport (General) Act 1999 and workers compensation claims. The main impact on consumers arising from the differences in State legislation is the exclusion of consumers from the operation of the provisions in ACT and Qld. A consumer bringing a claim for misleading conduct in both of these jurisdictions will be better placed than a consumer in any other jurisdiction or under the TPA where a wrongdoer is insolvent, died or ceased to exist. 4.5 Excluded Wrongdoers 4.5.1 Comparative Table
4.5.2 Material Differences The TPA and all FTAs provide for wrongdoers who have intentionally caused loss or fraudulently caused loss to be denied the benefit of the proportionate liability provisions. The liability of an excluded wrongdoer is decided in accordance with the principles of joint and several liability. Other wrongdoers are excluded from the operation of proportionate liability in certain jurisdictions: (i) In Qld a person is proved to have engaged in misleading or deceptive conduct under the Fair Trading Act 1989 is an excluded wrongdoer: s 32F (ii) Vic only includes an exclusion for fraud and not intent. The main impact on consumers arising from the differences in State legislation is the exclusion of claims for misleading conduct in Qld. Any wrongdoer who is found to have contravened s 38 of the FTA will be jointly and severally liable. In all other jurisdiction including the TPA such a wrongdoer will be entitled to proportionate liability, subject to a lack of intent or fraud. Pt VIB: Claims for damages or compensation for death or personal injuries (compared to negligence/ other avenues for redress under State and Territory laws) 5.1 Introduction Dramatic increases in insurance premiums in the early years of the 21 century prompted a review of the laws of negligence relating to personal injury. State and Territory governments introduced a range of reforms designed to limit liability for personal injury in certain circumstances, and to place restrictions on the amount of damages which could be awarded. At the same time, the Federal Government initiated a review of personal injury laws, chaired by Justice Ipp. The Ipp review made 61 recommendations for reform, including a suggestion that uniform legislation be adopted across Australia. Several amendments to the Trade Practices Act were also recommended, most of which have been enacted. However, rather than adopt a uniform framework, State and Territory reforms varied from the Ipp recommendations in a number of ways, and as a result there are several differences between jurisdictions, and between the States and Territories and the TPA, with regards to the availability of damages or compensation for personal injury, and the quantum of awards where available. 5.2 TPA Framework Under s82 of the TPA, damages are available for personal injury arising from breaches of Part IV (restrictive trade practices), Part IVA (unconscionable conduct), Part IVB (industry codes), and Part V (consumer protection) other than Part V Div 1 (except where the injury is tobacco-related). Part VIB regulates awards of damages under s82. It specifies the relevant time limits for bringing claims, imposes limits on the amount and types of damages that can be awarded, and sets thresholds for non-economic loss, below which damages are not available. It provides for the circumstances under which a plaintiff can be awarded damages for gratuitous care, and abolishes exemplary and aggravated damages. It also provides that a court can refer to past decisions, and can make consent orders for structured settlements. s87 provides for other orders to be made, including orders for compensation for loss or damage arising out of personal injury caused by a breach of Parts IV, IVA, IVB, V (except Div 1, where not tobacco-related) or VC. The TPA and all State and Territory legislation treat actions for death similarly to those for personal injury. 5.3 Availability of damages for death or personal injury in TPA & FTAs 5.3.1 Comparative Sections
Under s82 of the TPA, damages are available for personal injury arising from breaches of Part IV (restrictive trade practices), Part IVA (unconscionable conduct), Part IVB (industry codes), and Part V (consumer protection) other than Part V Div 1 (except where the injury is tobacco-related). 5.3.2 Comparative table of availability of damages for personal injury
5.3.3 Material differences SA, WA, NT and ACT allow damages awards of damages for unfair practices, but exclude claims arising from unconscionable conduct. Tas allows damages for unconscionable conduct, but not for other claims of unfair practices. Vic allows awards of damages for any breach of the FTA. Qld specifically excludes damages from breaches of provisions on pyramid selling and assertions of a right to payment for unsolicited goods or services. Consumers in states where damages are not available either for unconscionable conduct or for other instances of unfair practices are at a disadvantage in terms of remedies available to them where personal injury occurs. However, it is also worth noting that in some states where damages are not available, a court may make an order for compensation for loss or damage suffered. Yüklə 1,68 Mb. Dostları ilə paylaş:
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