Conclusions

Hard cases may make bad law, but no cases make for worse law still. If a con­sequence of the generous statutory regime governing misleading and deceptive conduct in Australia is that there is now little incentive for most litigants to invoke the law of negligent misstatement, this will be to the detriment of those who still need to rely upon it, and it will impede the development of the common law as a whole.

At least some of the current confusion in the negligent misstatement field in Australia stems, I have argued, from points of difficulty not being litigated to a clear resolution before the High Court. Some of this is chance, some of it design. The solution I have suggested above to the uncertain legacy of Esanda is one that unifies all cases in which information or advice is detrimentally relied on by a plaintiff, whether the factual configuration is of a ‘direct' two-party or ‘indirect' three-party type.^[1619] This relatively simple approach was adumbrated long ago by one of Australia's finest judicial minds. It avoids the traps and fictions of vol­untarism and provides a defensible balance between the respective moral and economic interests of information suppliers and users. To the extent that the nor­mative compromise it represents needs any further adjustment to account for its perceived economic or social consequences, I maintain that it is really for govern­ments to intervene, once the proper research has been done to prove the existence of some genuine need for further interference in the information market. In this respect, the future of negligent misstatement liability is not just a matter of setting the proper point of balance between the interests of advisors, plaintiffs and mar­kets, and of providing rules that are clear enough for all to understand; but also a question of striking the right balance between the respective roles and competen­cies of judges and governments.