Conflict Over Proportionate Liability Laws In Australia

Under Key Australian Federal Regimes, When is Joint and Several Liability Ousted by Proportionate Liability?

• The operation of the proportionate liability regimes in the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission Act 2001 (Cth) and the Competition and Consumer Act 2011 (Cth)—and the extent to which they oust joint and several liability—has been rendered uncertain by two conflicting Full Court decisions of the Federal Court of Australia.
• One Full Court decision has held that proportionate liability only applies to specific causes of action based on misleading or deceptive conduct—and that other statutory causes for the same loss or damage give rise to joint and several liability. The successful applicant is then able to elect between the two pathways in enforcing against respondents. The majority in the other Full Court decision held that the proportionate liability regime is intended to cover the field in respect of all of