AUSTRALIA Law and Practice Contributed by: Greg Williams, Alexandra Rose, Caitlin Sheehy and Sarah Aljassim, Clayton Utz
An infringement notice issued pursuant to Sec - tion 134A will specify a pecuniary penalty that must be paid for the purported breach of the Australian Consumer Law. The maximum pen - alties that may be imposed by an infringement notice vary according to the particular provi - sion said to have been breached. Payment of an infringement notice precludes any further penalty (civil or criminal) being sought from that person in respect of the breach. The use of infringement notices is quite com - mon and almost exclusively related to breaches of Section 29 of the Australian Consumer Law (which prohibits false or misleading representa - tions about goods or services). The ACCC pub - lishes a register of such notices, which identifies the person or company that is the subject of the notice and the provisions of the Australian Con - sumer Law (or other applicable industry stand - ard) that have been breached. However, the reg - ister does not disclose the particular products or conduct to which the notice relates. 2. Product Liability 2.1 Product Liability Causes of Action and Sources of Law Liability for a faulty or defective product that causes injury, loss or damage may be brought on a number of grounds. The causes of action most commonly pleaded are the common law tort of negligence or a breach of the Australian Consumer Law. The Australian Consumer Law creates a number of bases for liability, including: • engaging in false, misleading or deceptive conduct (although these claims may not be relied on in personal injury cases);
• breach by a supplier of consumer goods of statutory guarantees – eg, guarantees of acceptable quality; • derivative liability for manufacturers in respect of goods that breach the statutory guarantee of acceptable quality; and • the manufacture of goods with a safety defect. Negligence Under common law, a manufacturer or supplier of products also owes a duty of care to both the purchaser and the user to take reasonable steps to protect them from any foreseeable injury when using a product as intended. The extent of the duty owed by a particular manufacturer or sup - plier will depend on the role they play in the sup - ply chain and the steps that are reasonably and practicably available to them to address the risk. Since the early 2000s, common law negligence in Australia has been substantially impacted by statutory reforms designed to create a uniform national approach and curtail excessive negli - gence claims. These led to the introduction of various civil liability regimes, which are in place in Australian states and territories. False, Misleading or Deceptive Conduct The Australian Consumer Law prohibits persons from engaging in false, misleading or deceptive conduct in trade or commerce. It does not mat - ter whether the person intended to mislead. Breach of this prohibition gives rise to a right to sue for loss or damage (although not for per - sonal injury) in respect of losses suffered as a result of that conduct. This prohibition is relied on in all manner of claims, including product liability claims for economic loss. By way of example, if goods are represented – expressly or impliedly – to have
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