Another case that decides that aggravated damages are available for a breach of a consumer protection provision of the Trade Practices Act 1974 (Aust) is Collings Construction Co Pty Ltd v ACCC (1998) 43 NSWLR 131 at 153 – 156 per Cole JA (Stein JA and Sheppard AJA agreeing). Regards Joe Campbell ________________________________________ From: Gerard Sadlier [gerard.sadlier@gmail.com] Sent: Tuesday, 27 January 2015 8:19 PM To: Katy Eloise Barnett Cc: Harrington Matthew P.; obligations@uwo.ca Subject: Re: Aggravated or Exemplary Damages in Consumer Cases Katie, Matthew, Thank you both for what are helpful references. In general, the Irish Courts have taken a restrictive approach to aggravated/exemplary damages and to the best of my knowledge there is nothing on consumer cases specifically. As noted however, Section 74 of the Consumer Protection Act 2007 specifies that aggravated and exemplary damages may be awarded for a breach of that legislation. That is why I'm so interested in any cases on the UCP directive from other jurisdictions. Kind regards Ger On 1/26/15, Katy Eloise Barnett <k.barnett@unimelb.edu.au> wrote: > 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: > http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2011/106.html > > 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. [matthew.p.harrington@umontreal.ca] > Sent: Tuesday, January 27, 2015 8:53 AM > To: Gerard Sadlier; obligations@uwo.ca > 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: > http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7994/index.do > > 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: > https://scc-csc.lexum.com/scc-csc/scc-csc/en/14352/1/document.do > > 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 > www.droit.umontreal.ca > --------------------------------------- > > > From: Gerard Sadlier<mailto:gerard.sadlier@gmail.com> > Sent: Monday, January 26, 2015 7:21 AM > To: obligations@uwo.ca<mailto:obligations@uwo.ca> > > 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 >