Chapter 10 Remedies and Enforcement
Outline of Remedies and Evidence • Primary and Ancillary Liability • Injunctions (s80) • Damages (s82) • Civil and Criminal Proceedings • Fines • Punitive and Non-Punitive Orders • Proportionate Liability • Limitation in cases of Death and Personal Injury
Restrictions and limitations associated with remedial options at common law Extension to both corporate and non-corporate persons Representative actions The Trade Practices Act 1974 provides a remedial smorgasbord Linked to State based Fair Trading legislation Context
Primary and Ancillary Liability • Central Question for a legal system – who to attach liability to? • Section 84 (overcoming restrictive interpretation of when an employee of a corporation will be deemed to act on behalf of a corporation • Section 75B establishing ancillary liability on natural persons
Injunction • Section 80 • Interim injunctions • Quia Timet injunctions • Mandatory injunctions • Mareva injunctions
Damages • Section 82 • Not limited by existing doctrines • Need not be sole cause • Contributory negligence (s82(1B) • Exemplary damages unavailable
Measure of Damages • Consider Gates v City Mutual Life Assurance Society Ltd and Mrks v GIO Holdings • Do those cases deliver socially acceptable outcomes? • If so, why? If not, why not?
Orders • Other Orders s87 • Enforceable Undertakings s87B • Freezing Assets (s87A) • Section 86C • Community Service Order • Probation Order • Disclosure • Corrective Advertising
Criminal Based Proceedings • Fines (s79) • Punitive Orders (s86D) • Defences to Offence Provisions (s85/65A)
Evidence Gathering • Section 155 • Relate to a matter • Self-incrimination (s155(7) • Legal Professional Privilege
Future Developments • Harmonisation on an international level • How do we resolve and pursue individuals operating outside of this jurisdiction? • Are damages too restrictive as presently interpreted in Gates and Marks • Were the amendments for proportionate liability, contributory negligence and limitations of liability necessary and have they achieved good outcomes?