Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494: Analysis and Impact of Trade Practices Act

QUESTION
In Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494, the High Court referred to the
Trade Practices Act 1974 (Cth) as ‘a fundamental piece of remedial and protective legislation
which gives effect to matters of high public policy’, adding that, ‘it is to be construed so as to
give the fullest relief which the fair meaning of its language will allow’.
Introduction: In Marks v GIO Australia Holdings Ltd. there was a claim related with the loss of
expectation damages that were the result of the preaching of former section 52. A rare effect of
this case was that it had the decision by six judges of the High Court. In this case, the operation
of section 4K was considered by the court while integrating a claim for loss of damages that was
made under sections 82 and 87, Trade Practices Act. Right judgment, McHugh, Hayne and
Callinan JJ left open a wide interpretation of the term injury as it has been used in section 4K.
according to the judges, the "loss or damage that has been mentioned by sections 82 and 87 of
the TPA is not restricted to economic loss.1 Therefore, it has been clearly mentioned by section
4K. . In this regard, it was stated in the judgment that there is no limitation imposed by section
82 regarding the kind of loss or damage that can be recovered. Similarly, this provision does not
contain any express indication regarding the fact that certain types of loss or damage, have to be
considered as being too remote for being recoverable.2 Indeed, section 4K can be considered as
expanding the types of loss or damages that are suggested by section 82 and other provisions of
the Act.
1 Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310
2 Braithwaite, John and Susan Vale, "Law Enforcement By Australian Consumer Affairs Agencies" (1985) 18(3)
Australian & New Zealand Journal of Criminology

Unfair Terms in Contracts: In this case, the judges restricted its application when they rejected
the claim for loss of expectation damages made by the plaintiff. In this regard, they stated that "it
can be that the injury mentioned in section 4K is intended to refer to the injury caused to a
person, but the code is not required to decide if it is so.3 Even if the term injury has been
provided a wider meaning as compressive personal-injury, it is not accepted by the court that an
injury suffered by merely because the hoped-for advantage has not taken place."
While doing so, the court considered the purpose of the Act with a view to interpret the section.
In this regard, it was stated that "while arriving at our conclusion, the court was mindful that the
object of this Act can be described as to "enhance the welfare of the people of Australia by
promoting competition and fair trading and providing for consumer protection". Therefore, a
narrow construction of the provisions of the Act did not be adopted. However, similarly, the
words used in the Act should not be stretched beyond their limits".4
Under the circumstances these three justices claimed that 'loss or damage' strictly to economic
loss only. Once it has been implied that injury has taken place under section 4K, it may mean
something more than personal-injury. However, by implication, these three justices said that it
includes personal-injury and economic loss. On the other hand, the other three justices went a
step ahead. Therefore Gummow J was ready to allow a wider interpretation of the term injury as
used in section 4K on the basis of the analysis of common law usage of this term. Therefore he
said that it has been suggested in the arguments that s 4K was elected with the inclusion of
damages concerning personal injury. Consider that there is nothing in the text of this section to
3 Clarke, Professor Philip and Sharon Erbacher, Australian Consumer Law (Thomson Reuters (Professional)
Australia Pty Limited, 2018
4 Weatherall, Kimberlee, "The Consumer As The Empirical Measure Of Trade Mark Law" (2017) 80(1) The
Modern Law Review

indicate that the term injury is so confined. This section performs a different function in
disentangling different elements that are compounded in concise language of section 82.
Therefore the term injury has been used in section 4K as an 'actionable wrong'. In this regard, it
needs to be noted that section 82 is now section 236 of the Australian Consumer Law (ACL).
Parliament’s reasons for enacting the ACL: The Australian Consumer Law (ACL) is a major
part of deregulatory reforms that have been introduced by the Council of Australian
Governments (COAG) for the purpose of delivering seamless national economy. There are a
number of provisions, spread across at least from the consumer laws of the Commonwealth and
States and Territories that have been replaced by the ACL. The introduction of ACL can be
described as the culmination of the process of cooperation.5 That was going on between the
Commonwealth Government and the governments of states and territories through ministerial
Council on Consumer Affairs. Now, this body is known as the Legislative and Governance
Forum on Consumer Affairs (CAF). These were their allies on the conclusions made by the
Productivity Commission's 2008 off Australia's Consumer Policy Framework, the best practices
in current state and territory legislations and the consultations that took place between 2009 and
10. Under the aegis of national partnership agreement to deliver Seamless National Economy, it
was agreed upon by the Commonwealth as well as the state and territory governments for
completing the legislative process to implement the ACL by the December 2010, and the
legislation was going to commence in all jurisdictions of Australia on first January, 2011.
The ACL had been implemented by the enactment of the Trade Practices Amendment
(Australian Consumer Law) Act, 2010. The full text of ACL can be found in schedule 2,
Competition and Consumer Act, 2010.
5 Compliance With The Trade Practices Act, 1974 (Law Reform Commission, 1994)