Justice Peter Riordan in the Victorian Supreme Court has found the practice of formulating private contracts that limit the period in which parties can claim for misleading or deceptive conduct is contrary to the public policy of the Australian Consumer Law.
His Honour was considering a case brought by plastering company Brighton Australia against the construction group Multiplex, which was commissioned by CBUS in 2011 to build the Docklands headquarters of the National Australia Bank in Melbourne.
The plastering company claimed that as a result of delays at the Docklands site in early 2012, it incurred significant costs . In 2014, Brighton Australia initiated claims against Multiplex under section 18 of the Australian Consumer Law, arising from what it alleged were misleading and deceptive representations about the project delays.
The Court appointed a special referee to report on the subcontractor’s claims. Justice Riordan found the special referee’s opinion should be adopted, but His Honour determined that the special referee made an error in finding that the plastering company was barred by the terms of its contract from bringing a claim under the Australian Consumer Law.
The contract between Multiplex and Brighton provided for only a seven-day period to give notice of a claim under section 18 of the Consumer Law. Section 236 of the Australian Consumer Law says an action for damages may be commenced within six years after the event.
Justice Riordan noted that while his finding differed from three decisions by the New South Wales Supreme Court, it was nevertheless consistent with the observations of Justice Ball in the 2015 decision of Omega Air Inc v CAE Australia Pty Ltd in the NSW Supreme Court.
“In my opinion, any attempt to restrict the remedy by limiting the time in which an action can be brought is an unacceptable interference with the public policy underpinning the provisions [of the Australian Consumer Law],” Justice Riordan said.
His Honour said it would be at odds with the public purpose of the Australian Consumer Law to leave claimants uncertain about whether courts, on a case by case basis, would decide that contracted time limits were so unreasonable as to be unenforceable.
Justice Riordan said that to permit misleading and deceptive conduct claims to be overpowered by, for example, regulatory provisions in subcontracts would be inconsistent with a) the public policy of protecting people in trade and commerce, and b) with the compensation and protection powers provided under the Trade Practices Act.
Brighton Australia’s claim failed, however, because His Honour has found that the special referee was correct in reporting the alleged misrepresentations had not been made and, further, that Multiplex had not engaged in misleading or deceptive conduct.
NOTE: This summary is necessarily incomplete. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment .