Main Body
4.7 Remedies in relation to breaches of Chapter 2 and Chapter 3 of the ACL
Where a party has acted in breach of the ACL provisions discussed above, several civil remedies may come into question. Those are discussed below. Furthermore, where a party acts in breach of any of the sections discussed above, apart from s. 18 (formerly TPA s. 52), an offence is committed, and the penalty provisions of Chapter 4 (formerly TPA Part VC) are relevant. Those provisions are, however, not discussed here.
4.7.1 Damages
A court may order damages pursuant to s. 236 (formerly TPA s. 82(1)):
Australian Consumer Law, s. 236
(1) If:
(a) a person (the claimant) suffers loss or damage because of the conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 or 3; the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
(2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
Thus, to be successful under s. 236 (TPA s. 82), the claimant must be able to point to loss or damage having been suffered as a result of identifiable conduct. The matter of what constitutes “identifiable conduct” was discussed in HIH Insurance Limited (in liquidation) v Rodney Stephen Adler.[1] That case related to alleged misleading information provided in contravention of the former TPA s. 52 (now ACL s. 18). The Court stated that: “Sometimes that conduct will be one distinct and confined representation. At other times, the relevant conduct will encompass a broader set of acts or omissions over a period of time.”[2] In other words, while the relevant conduct must be identifiable, it need not be one specific act or omission.
Section 236(2) makes clear that actions taken under s. 236(1) must be commenced within 6 years after the day on which the cause of action accrued.
It should also be noted that the CCA s. 137B limits the amount of damages that a court may order, if a person contravened s. 18 ACL and the loss or damage suffered by the claimant was partly due to the claimant’s failure to take reasonable care.[3] If the claimant is partly responsible for failing to take reasonable care, and the other person ‘did not intend to cause the loss or damage and did not fraudulently cause the loss or damage’ then the court must reduce the damages recoverable pursuant to s. 236(1) ACL ‘to the extent to which the court thinks just and equitable having regard to the claimant’s share in the responsibility for the loss or damage’.[4]
4.7.2 Injunctions
Where appropriate, injunctions can be granted. Section 232 of the ACL (formerly TPA s. 80) contains the provisions regulating injunctions. The core provisions are found in subsections 1, 4 and 7:
Australian Consumer Law, s. 232
(1) A court may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
(a) a contravention of a provision of Chapter 2, 3 or 4; or
(b) attempting to contravene such a provision; or
(c) aiding, abetting, counselling or procuring a person to contravene such a provision; or
(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f) conspiring with others to contravene such a provision.
(2) The court may grant the injunction on application by the regulator[5] or any other person.
(3) Subsection (1) applies in relation to conduct constituted by applying or relying on, or purporting to apply or rely on, a term of a consumer contract that has been declared under section 250 to be an unfair term as if the conduct were a contravention of a provision of Chapter 2.
(4) The power of the court to grant an injunction under subsection (1) restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.
(5) Without limiting subsection (1), the court may grant an injunction under that subsection restraining a person from carrying on a business or supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business):
(a) for a specified period; or
(b) except on specified terms and conditions.
(6) Without limiting subsection (1), the court may grant an injunction under that subsection requiring a person to do any of the following:
(a) refund money;
(b) transfer property;
(c) honour a promise;
(d) destroy or dispose of goods.
(7) The power of the court to grant an injunction under subsection (1) requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and
(b) whether or not the person has previously refused or failed to do that act or thing; and
(c) whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing.
4.7.3 Compensation orders on application by an injured person or the regulator
In addition to injunctions and damages, the court has the power to give so-called ancillary orders:
Australian Consumer Law, s. 237
(1) A court may:
(a) on application of a person (the injured person) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that:
(i) was engaged in a contravention of a provision of Chapter 2, 3 or 4; or
(ii) constitutes applying or relying on, or purporting to apply or rely on, a term of a consumer contract that has been declared under section 250 to be an unfair term; or
(b) on the application of the regulator made on behalf of one or more such injured persons; make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.
Note 1: For applications for an order or orders under this subsection, see section 242.
Note 2: The orders that the court may make include all or any of the orders set out in section 243.
(2) The order must be an order that the court considers will:
(a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons.
(3) An application under subsection (1) may be made at any time within 6 years after the day on which:
(a) if subsection (1)(a)(i) applies—the cause of action that relates to the conduct referred to in that subsection accrued; or
(b) if subsection (1)(a)(ii) applies—the declaration referred to in that subsection is made.
- [2007] NSWSC 633. ↵
- HIH Insurance Limited (in liquidation) v Rodney Stephen Adler [2007] NSWSC 633, at para 28. ↵
- Competition and Consumer Act 2010 (Cth) s 137B. ↵
- Competition and Consumer Act 2010 (Cth) s 137B. ↵
- “Regulator” is defined in s. 2 of the ACL as being, for the purposes of the application of the ACL as a law of the Commonwealth, the Commission; and for the purposes of the application of the ACL as a law of a State or Territory, the meaning given by the application law of that State or Territory. ↵
