From: Katy Eloise Barnett <>
To: Harrington Matthew P. <>
Gerard Sadlier <>
Date: 26/01/2015 22:17:40 UTC
Subject: RE: Aggravated or Exemplary Damages in Consumer Cases

I'm really interested to hear what other countries do! In Australia, it appears that we don't allow exemplary damages for contraventions of the Australian Consumer Law: see Musca v Astle (1988) 80 ALR 251, 262 (French J); Snyman v Cooper (1989) 91 ALR 209, 234 (von Doussa J). However, we may allow aggravated damages for certain kinds of contraventions including misleading and deceptive conduct. In Musca, French J held that because the aim of exemplary damages was to punish and not to compensate, they were not available under ss 82 or 87 of the Trade Practices Act (our former consumer legislation), but he awarded exemplary damages for deceit. Exemplary and aggravated damages have not been expressly ruled out with regard to misleading or deceptive conduct, unfair contract terms, unfair practices and consumer transactions in the new ACL (cf s 87ZB of the Competition and Consumer Act 2010 (Cth), which expressly rules out exemplary and aggravated damages in respect of death or personal injury for certain parts of the ACL: Part 2-2 (unconscionable conduct), Part 3-3 (safety of consumer goods and product related services), Part 3-4 (information standards), Part 3-5 (liability of manufacturers for goods with safety defects) and Division 2 of Part 5-4 (actions for damages against manufacturers of goods)). But because ss 236 and 237 of the ACL refer to ‘loss or damage’ and appear to have a compensatory slant, it is likely that the reasoning of Musca still applies. We do, however, allow aggravated damages (particularly damages for distress). This is because the purpose of such damages is compensatory. A reasonably recent case involving a misleading and deceptive lottery ticket is here: There may be more recent cases under the ACL, but I haven't looked recently. Cheers, Katy Associate Professor Katy Barnett Melbourne Law School 185 Pelham Street University of Melbourne Carlton 3053 VIC AUSTRALIA Ph: + 61 3 9035 4699 ________________________________________ From: Harrington Matthew P. [] Sent: Tuesday, January 27, 2015 8:53 AM To: Gerard Sadlier; Subject: Re: Aggravated or Exemplary Damages in Consumer Cases Ger Thanks for your post. It`s a subject of great interest to me as well. I have two Canadian cases that might be of interest. The first is Richard v. Time, Inc. (2012) involving Canada’s consumer protection statute. The court gives some guidance on when punitive damages are appropriate under the act. The case is here: The second is very new, but may be less relevant to you. It is Bank of Montreal v. Marcotte (2014) and concerns punitive damages under a provincial (in this case Québec) consumer protection statute. Much of the case is taken up with the constitutional question of whether provincial law applies to federally chartered institutions, but once that is resolved in favour of the class, the court goes on to consider the claim for punitives. That case is here: I`d be interested in knowing what else you or others have on this subject. Thanks. Matt --------------------------------------- Matthew P. Harrington Professeur titulaire Faculté de droit Université de Montréal 3101 chemin de la Tour Montréal, Québec H3T 1J7 514.343.6105 --------------------------------------- From: Gerard Sadlier<> Sent: ‎Monday‎, ‎January‎ ‎26‎, ‎2015 ‎7‎:‎21‎ ‎AM To:<> Hi all, Is anyone aware of cases laying down the proper approach to the assessment of exemplary or aggravated damages in consumer cases? Especially interested in cases concerning the Unfair Commercial Practices Directive but cases giving guidance more generally would also be most welcome. I think I raised this previously on the list so apologies for the repetition. Kind regards Ger