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Comprehensive Overview of Remedies and Enforcement in Legal Liability

This chapter outlines various remedies and enforcement mechanisms under the Trade Practices Act 1974, focusing on primary and ancillary liability, injunctions, damages, and the distinction between civil and criminal proceedings. It discusses important sections related to circumstantial liabilities, the nature of injunctions, and the concept of proportionate liability in cases of death and personal injury. The chapter evaluates significant case law and raises critical questions about the adequacy of current remedial options, including future developments in harmonizing legal frameworks internationally.

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Comprehensive Overview of Remedies and Enforcement in Legal Liability

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  1. Chapter 10 Remedies and Enforcement

  2. 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

  3. 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

  4. 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

  5. Injunction • Section 80 • Interim injunctions • Quia Timet injunctions • Mandatory injunctions • Mareva injunctions

  6. Damages • Section 82 • Not limited by existing doctrines • Need not be sole cause • Contributory negligence (s82(1B) • Exemplary damages unavailable

  7. 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?

  8. Orders • Other Orders s87 • Enforceable Undertakings s87B • Freezing Assets (s87A) • Section 86C • Community Service Order • Probation Order • Disclosure • Corrective Advertising

  9. Criminal Based Proceedings • Fines (s79) • Punitive Orders (s86D) • Defences to Offence Provisions (s85/65A)

  10. Evidence Gathering • Section 155 • Relate to a matter • Self-incrimination (s155(7) • Legal Professional Privilege

  11. 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?

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