Project

Developing a rational law of misleading conduct

Providing the legal tools to reform the heartland of commercial misconduct

Laws that prohibit, regulate and remedy misleading conduct are critical to maintaining a fair and efficient market economy. But the current mix of common law, equitable and statutory rules are complicated, confused, conflicting and costly. This project proposes a novel, integrated analysis, which draws insights from across the spectrum of private and commercial law, to support the development of a rational law of misleading conduct.

Its key outcomes include developing a map of the existing law, which can be used to support effective and coherent judicial and legislative law reform in Australia and overseas. The project aims should yield significant legal, economic and social benefits by promoting more just, effective and efficient regulation of misleading conduct.

Australian Research Council Discovery Project DP180100932

Our goals

Our people

Readings

  1. E Bant, W Courtney, J Goudkamp and JM Paterson (eds), Punishment and Private Law (Hart Publishing, Oxford 2021) (in press).
  2. E Bant and JM Paterson (eds), Misleading Silence (Hart Publishing, Oxford 2020).
  3. E Bant and JM Paterson, ‘Developing a Rational Law of Misleading Conduct’, in M Douglas, J Eldridge and C Carr (eds), Economic Torts in Context (Hart Publishing, Oxford 2021) in press.
  4. E Bant and JM Paterson, ‘Silence and the Regulation of Misleading Conduct: A Taxonomy’, in E Bant and JM Paterson, Misleading Silence (Hart Publishing, Oxford 2020) 3-36.
  5. E Bant, ‘Misleading Silence and Unjust Enrichment’, in E Bant and JM Paterson, Misleading Silence (Hart Publishing, Oxford 2020) 205-224.
  6. E Bant, ‘A Road Map to Decision Causation in Misleading Conduct and Failure to Disclose Cases’ (2020) 157 Precedent 4-9.
  7. JM Paterson and E Bant, ‘Contract and the Challenge of Consumer Protection Legislation’, in TT Arvind and J Steele, Contract Law and the Legislature (Hart Publishing, Oxford 2020) 79-106.
  8. E Bant, K Barnett and JM Paterson, ‘‘Plain Sailing?’: Damages for Distress under the ACL and the Performance Interest in Contract’ (2020) 36 Journal of Contract Law 272-288.
  9. JM Paterson and E Bant, ‘Should Australia Introduce a Prohibition on Unfair Trading? Responding to Exploitative Business Systems in Person and Online’ (2020) Journal of Consumer Policy.
  10. E Bant and JM Paterson, ‘Evolution and Revolution: The Remedial Smorgasbord for Misleading Conduct in Australia’ (2020) 14 FIU Law Review 25-42.
  11. JM Paterson and E Bant, ‘Mortgage Brokers, Regulatory Failure and Statutory Design’ (2020) 31 Journal of Banking and Finance Law and Practice 7-27.
  12. J M Paterson and E Bant, ‘Misrepresentation, Misleading Conduct and Statute Through the Lens of Form and Substance’, in A Robertson and J Goudkamp (eds), Form and Substance in Private Law (Hart Publishing, Oxford 2019) 401-431.
  13. JM Paterson and E Bant, ‘Intuitive Synthesis and Fidelity to Purpose?: Judicial Interpretation of the Discretionary Power to Award Civil Penalties Under the Australian Consumer Law’, in P Vines and S Donald (eds), Statutory Interpretation in Private Law (Federation Press, Leichhardt 2019) 154-184.
  14. E Bant and JM Paterson, ‘Estoppel, Misleading Conduct and Equitable Fraud’ (2019) 14 Journal of Equity.
  15. JM Paterson, E Bant and M Clare, ‘Doctrine, policy, culture and choice in assessing unconscionable conduct under statute: ASIC v Kobelt’ (2019) 13 Journal of Equity 81-112.
  16. E Bant and JM Paterson, ‘Exploring the boundaries of compensation for misleading conduct: the role of restitution under the ACL’ (2019) 41 Sydney Law Review 155-184.
  17. E Bant, ‘Unravelling Fraud in the Wake of Hayward v Zurich Insurance’ (2019) LMCLQ 91-111.
  18. E Bant, and J M Paterson, ‘Should specifically deterrent or punitive remedies be made available to victims of misleading conduct under the Australian Consumer Law?’ (2019) 25 Torts Law Journal 99-127
  19. E Bant and JM Paterson, ‘Misleading Conduct before the Federal Court of Australia: Achievements and Challenges’, in P Ridge and J Stellios (eds) The Federal Court’s Contribution to Australian Law: Past, Present and Future (Federation Press, Leichhardt 2018) 165-186.
  20. Bant E and JM Paterson, ‘Statutory interpretation and the critical role of soft law guidelines in developing a coherent law of remedies in Australia’, in R Levy et al (eds), New Directions for Law in Australia: Essays in Contemporary Law Reform (ANU E Press 2017) 301-310.
  21. E Bant and JM Paterson, ‘Consumer Redress Legislation: simplifying or subverting the law of contract’ (2017) 80 Modern Law Review 895-926.
  22. E Bant and JM Paterson, ‘Statutory Causation in Cases of Misleading Conduct: Lessons from and for the Common Law’ (2017) Torts Law Journal 1-31.
  23. E Bant, ‘Rescission, Restitution and Compensation’, in S Degeling and J Varuhas (eds), Equitable Compensation and Disgorgement (Hart Publishing, 2017) 277-309.
  24. JM Paterson and E Bant, ‘In the Age of Statutes, Why Do We Still Turn to the Common Law Torts?: Lessons from the Statutory Prohibitions on Misleading Conduct in Australia’ (2016) 23 Torts LJ 1-24.
  25. E Bant, ‘Remedies: Reflections and Perspectives’ (2016) Sing Ac LJ 731-745.
  26. E Bant and J Paterson, ‘Limitations On Defendant Liability For Misleading Or Deceptive Conduct Under Statute: Some Insights From Negligent Misstatement’, in K Barker, W Swain and R Grantham (eds), The Law of Misstatements: 50 Years on from Hedley Byrne v Heller (Hart Publishing, 2015) 159-190.
  27. E Bant, ‘Common Law and Statute: Interaction and Influence in Light of the Principle of Coherence’ (2015) 38 University of NSW Law Journal 362-386.
Submissions
  1. E Bant and JM Paterson, Submission to the Aboriginal Cultural Heritage Bill 2020, 22 September 2020 (3,956 words).
  2. F McGaughey, E Bant, R Faugno and H Cullen, Submission to the Proposed WA Procurement Debarment Regime, 27 July 2020 (5,228 words).
  3. E Bant and JM Paterson, Submission to Treasury on its proposed reforms to strengthen penalties for corporate and financial sector misconduct, 12 October 2018 (6,923 words).
  4. E Bant, Submission to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, 4 October 2018 (5,989 words).
  5. E Bant and J Paterson, Submission to the Australian Consumer Law Review 2017 regarding findings and recommendations arising from the grant project (consumerlaw.gov.au).
Additionally
  • Jeannie Marie Paterson, ‘Good Faith, Cooperation and a Reasonable Expectation of Disclosure in Contract Performance’, in E Bant and JM Paterson, Misleading Silence (2020).
  • JM Paterson, ‘Should Australia Introduce a Prohibition on Unfair Trading? Responding to Exploitative Business Systems in Person and Online’ in Journal of Consumer Policy, 44(1), 1-19 DOI 10.1007/s10603-020-09467-9.

News

It’s about to become easier to lend irresponsibly, to help the recovery


Coming clean on hand sanitisers


Fines that’ll hurt. ASIC’s powerful, if ill-fitting, teeth


Understanding Hayne. Why less is more


Three simple steps to fix our banks


Fees for no service: how ASIC is trying to make corporate misconduct hurt


Misleading conduct? So what!


How courts and costs are undermining ASIC and the ACCC’s efforts to police misbehaving banks and businesses


When families and money don't mix


They're using my face


Collaboration

This project is funded by the Australian Research Council Discovery program, Project DP180100932

Contact Elise Bant

Elise Bant | View profile