The Court’s inherent supervisory jurisdiction over legal practitioners including costs
By Hon Justice E M Peden
The inherent jurisdiction of superior Courts has been described as the ‘very life-blood’ of superior Courts, however, it is only exercised by Courts where there is a clear need to do so. This paper is designed to provide an understanding of the operation of the inherent jurisdiction by reference to some recent examples.
Misleading conduct in commercial cases
By Marco Paoletti
Prohibitions on misleading or deceptive conduct in trade or commerce are primarily concerned with consumer protection, the classical function of the prohibition being not to make individual consumers whole, but to protect the public generally. This article suggests that while claims for misleading conduct in business disputes can and should sometimes succeed, many fail because of the greater difficulties in proving the requisite elements in commercial contexts. Rather than proposing unrealistic statutory reforms, this article identifies typical features of misleading conduct claims in business disputes, in order to provide some guidance as to when such claims have realistic prospects of success. The desirable outcome would be fewer – but better pleaded — misleading conduct claims by and against commercially sophisticated parties.
The case for ASIC’s greenwashing enforcement action
By Harris Kershaw
This article, through analysis of the three civil penalty proceedings brought by ASIC — Mercer Superannuation (Australia) Limited, Vanguard Investments Australia and LGSS Pty Limited as trustee of Local Government Super — will suggest that the claims and the misleading or deceptive conduct regime more broadly are an appropriate, flexible and effective avenue by which to deter vendors from making false claims of ESG attributes in financial products. This approach is contrasted with recent suggestions, made both domestically and internationally, notably in public statements made on behalf of ASIC, that mandatory disclosure regimes may be a more effective antidote to greenwashing than targeted enforcement.
The Court’s inherent supervisory jurisdiction over legal practitioners including costs
By Hon Justice E M Peden
page
4
Misleading conduct in commercial cases
By Marco Paoletti
page
10
The case for ASIC’s greenwashing enforcement action
By Harris Kershaw
page
20