Conclusion
It is clearly inappropriate to interpret a statutory prohibition solely by reference to analogous common law concepts; it is the words of the prohibition that must prevail. However, as this chapter demonstrates, common law concepts developed in the context of the tort of negligent misstatement can enlighten and inform difficult debates about the scope of statutory liability for misleading or deceptive conduct under the ACL, in a manner which is consistent with the language of the statute and its purpose.
The chapter has traced how the common law approaches to duty of care in negligent misstatement developed against a background of overÂlapping standards for assessing the relationship between the parties and their relaÂtive fault, and thus for delineating the scope of both the defendant's duty of care and remedial liability. The prohibition on misleading conduct in the ACL does not expressly include any requirement of fault or lack of care in defining liability. Nonetheless, in the context of the statutory prohibition, we see courts similarly engaged in an inquiry into the relationship between the parties and relative expecÂtations of responsibility and care in order to determine the scope of the defendÂant's liability and in assessing damages. This is appropriate given the nature of the liability issues in question and the words and purpose of the statute. The chapter has shown that, while the common law limitations on defendant liability shed considerable light on the nature of courts' reasoning in this context, it is neither possible nor desirable to draw on isolated components of these limitations withÂout considering their role and fit in the broader setting of the overall common law claim. Likewise, it is necessary to consider closely the proper extent of any comÂmon law analogy in the light of the words and purpose of the statute.The conclusion reached in this chapter is that the tort of negligent misstatement does provide a valuable source of analogical reasoning for misleading or decepÂtive conduct, provided that the caveats noted above are kept firmly in mind. What remains unexplored, and can only be foreshadowed here, is the potential reflexive influence of the statute on the tort. A single example will have to suffice to illustrate this important field for future enquiry. We saw previously that a key concern of negligent misstatement is not to undermine defendants' legitimate pursuit of their commercial interests. It is arguable that what constitutes ‘ legitimate' commercial behaviour must now be influenced by the statutory norms, including those which proscribe misleading or deceptive conduct. The statute makes clear that it is not legitimate for those who engage in trade and commerce to engage in misleading or deceptive conduct to further their commercial interests, however genuinely or reasonably they may believe themselves entitled to do so. For this reason, it must be doubted that McHugh J's obiter suggestion in Perre v Apand Pty Ltd,[982] that conduct in breach of section 52 would not be ‘illegitimate' for the purposes of negÂligent misstatement, is correct. Particularly in the light of the High Court of AusÂtralia's recent emphasis on the overriding principle of coherence in private law,[983] there is every reason to think that the statute should exert considerable influence over the norms of commercial conduct that underpin developing torts such as negligent misstatement. In other words, the process may also be reciprocal, with the courts' approach to issues of misleading conduct contrary to the legislation feeding back into the cases dealing with negligent misstatement. Recognition of this can only serve to foster a more coherent and just combination of laws relating to consumer protection.