High court restricts proportionate liability for statutory contraventions

On 13 May 2015, the High Court of Australia handed down its decision in the appeal in Wealthsure Pty Ltd v Selig .

The decision considered the application of proportionate liability in the context of proved contraventions of various Commonwealth statutory provisions by a financial planner.

The Court held that, while the principles of proportionate liability applied to claims based upon contraventions of provisions in the Corporations Act 2001 and Australian Securities and Investments Act 2001 relating to misleading or deceptive conduct, those principles did not apply to breaches of other provisions of those acts based upon other conduct. That is the case notwithstanding that such conduct may also constitute misleading or deceptive conduct.

The Court’s unanimous decision will have a significant impact on the application of proportionate liability legislation to claims brought against professionals, financial institutions, trustees and directors in circumstances where such claims can be brought based upon misleading or deceptive conduct and also under one or more other provision the above Acts (and, by analogy, the Australian Consumer Law).

The case also considers the circumstances in which it might be appropriate to make a non-party costs order directly against a professional indemnity insurer involved in the conduct of appeals and contains a sting in the tail for such insurers.

Source: McCabes Lawyers