Statutory Causation in Cases in Misleading Conduct: Lessons from and for the Common Law

Abstract

Causation serves as the central gatekeeper to the smorgasbord of remedies offered in response to the various statutory prohibitions on misleading conduct in the Australian Consumer Law, Australian Securities and Investments Commission Act 2001 (Cth) and the Corporations Act 2001. Given this role, the pervasive uncertainty surrounding the nature, scope and operation of statutory causation requirements under the Acts requires attention. This article investigates three preliminary and as yet unresolved questions of statutory causation, focusing on their operation under the Australian Consumer Law: what is meant by causation under the statute; the nature of the factual links in the causal enquir..