Exploring the Boundaries of Compensation for Misleading Conduct: The Role of Restitution under the Australian Consumer Law

Abstract

The Australian Consumer Law (‘ACL’) provides a comprehensive suite of remedial orders available in response to conduct contravening the statutory prohibitions on misleading conduct. However, the potential remedial awards are constrained by the language of the statute, which appears to have an overriding compensatory focus. This limitation presents a significant challenge to courts seeking to make meaningful reparation to victims of significant or intentionally misleading conduct in cases where their ‘loss or damage’, as commonly conceptualised, is either difficult to assess or wholly absent. This article explores compensatory and other orders for contraventions of the prohibition on misleading conduct in light of these boundaries. In particular, the analysis considers the broader characterisation taken by courts to the concept of ‘loss or damage’ under s 237 of the ACL, which has underpinned the award of orders akin to rescission and restitution. The article also examines the nature of and justifications for remedies awarded on a ‘user principle’ for misleading conduct.