Editorial Panel Contents - blakesfiles.com · Contents page 296 Mass torts in the United States...

Contentspage 296 Mass torts in the United States

Paul D Rheingold RHEINGOLD, MCCARTNEY &

GIUFFRA LLP

page 299 Canadian case law: Arora et al v Whirlpool Canada

LP and Whirlpool Corporation

Daniel Stern BLAKE, CASSELS & GRAYDON LLP

page 302 Consumer law and policy developments in New

Zealand — an excerpt from the upcoming

“Consumer Law and Policy in Australia and

New Zealand” (Federation Press, 2013)

Kate Tokeley VICTORIA UNIVERSITY OF

WELLINGTON, NEW ZEALAND

page 311 Index to volume 22

Table of articles;

Table of cases;

Table of statutes.

Editorial PanelPeter O’Donahoo Partner, Allens

James Whittaker Partner, Corrs

Chambers Westgarth

Stephen White Partner, Carter

Newell

Overseas CorrespondentsRod Freeman Partner, Hogan Lovells

International LLP, London

Professor Dr Thomas Klindt

Noerr LLP, Munich

Simon Pearl Partner, DAC Beachcroft

LLP, London

Paul Rheingold

Rheingold Valet & Rheingold, New

York

LexisNexis welcomes submissions to

this newsletter. Please send proposals

to the editor, Dominique Kane, at

[email protected].

2012 . Vol 22 No 10

Information contained in this newsletter is current as at October 2012

Mass torts in the United StatesPaul D Rheingold RHEINGOLD, MCCARTNEY & GIUFFRA LLP

My topic is happenings in the field of mass torts in

the United States. I know that in many ways litigation in

Australia has been tracking what happens in our country.

I am drawing on my experience in these cases, espe-

cially as to drugs and devices, practising from the

plaintiff’s side.

New mass tortsFor the most part, when we think of mass torts here,

we think of cases that have been congregated in federal

multidistrict litigation, pursuant to 21 USC s 1407(a).

The following are ones recently granted MDL status:

• Actos, an antidiabetic drugs, suits claiming blad-

der cancer. MDL 2299, Re Actos (Pioglitazone)

Products Liability Litigation, WDLa. Currently

there are about 1000 cases pending, either trans-

ferred from other federal courts or directly filed.

(Allowing plaintiffs to file directly in the MDL

proceeding is a relatively new procedure, as the

permission to file numerous cases in one com-

plaint, which is also allowed.)

• Fosamax, a drug for osteoporosis, where the claim

is that it causes atypical femur fractures. MDL 2243

Re Fosamax (alendronate sodium) Products Liabil-

ity Litigation (No II), DNJ Note that there is

another, long running MDL for a different Fosamax

claimed injury, osteonecrosis of the jaw.

• DePuy hip replacement, a device which involves

both a metal ball and femur insert, where the claim

is that metal shavings are created, causing various

illnesses, one of which is named “metallosis.”

MDL 2197, Re DePuy Orthopaedics, Inc ASR Hip

Implant Products Liability Litigation, NDOh.

• Pelvic mesh, used to suspend lapsed organs. Since

there were multiple manufacturers of these prod-

ucts, separate MDLs were created and all sent to

one judge in DWVa this year.

• Zoloft, a drug for depression, where the claims for

birth defects. MDL 2342, Re Zoloft (sertaline

hydrochloride) Product Liability Litigation, EDPa.

• Propecia, used for loss of hair, where the side

effects claimed are related to male sexual perfor-

mance (and also for Proscar). MDL 2331, Re

Propecia (Finasteride) Product Liability Litiga-

tion, EDNY.

As most down under lawyers in this field know, we

have two court systems. Cases may remain where they

are filed in a state court and not get directly involved in

a federal MDL. (The most common reason is that the

product defendant is located in the state where the suit is

commenced.) Hence, much mass tort litigation is carried

on state courts. New Jersey is a very popular state for

such mass litigation since many manufacturers have

their main place of doing business there.

Thus we have the ever-increasing phenomenon of

parallel litigation, suits in two or more venues involving

the same product. Sometimes, the majority of the cases

are in the state system, such as for the Fosamax cases.

The federal and state litigations are inevitably coordi-

nated to some degree, but this can range (due to what I

might call “political” factors) from the federal dominat-

ing to the particular state court managing its own cases

separately.

It sometimes happens that the Judicial Panel on

Multidistrict Litigation (JPML) declines to create an

MDL, usually on the bases either that there are currently

too few suits, or the issues are too case specific. A recent

example of that is litigation involving the da Vinci

surgical robot, made by Intuitive Surgical. Even with

denial of consolidation, the litigation for a product may

continue on a case-by-case basis but with voluntary

coordinated discovery. The claims here are based on

bowel burns and organ tears due to electrocautery arcing

problems with the robotic arms.

More details and many examples of the issues dis-

cussed in this section are covered in my book, Litigating

Mass Tort Cases (2006 with annual supplement), pub-

lished by West — a division of Thomson Reuters.

Major developments in MDL proceedingsIt often happens that legal issues, which could as

easily arise in individual case litigation, are dealt with

first or more definitively in mass tort litigation. Examples

are the law relating to pre-emption and also the admis-

sibility of expert testimony (called “Daubert” in short-

hand).

australian product liability reporter October 2012296

The hottest legal topic today is the scope of the US

Supreme Court decision in PLIVA, Inc, v Mensing 131

SCt 2567 (2011). Here in a convoluted (and, in my view,

wrong) decision, the majority (5–4) held that a generic

manufacturer of a drug could not be held liable for the

omission of a warning in its labeling, if it was just

mimicking previously approved labeling for the brand

name version.

The impact of Messing has been to lead many courts

around the country, state and federal, to dismiss whole-

sale all litigation pending against the generic maker. For

example, the litigation against the generic suppliers of

Reglan and Darvon has been so far thrown out. Other

courts have applied more scrutiny to the specific issues,

and for example held that Mensing applies only to

labeling issues, and not to claims of design or manufac-

turing defect.

In the Daubert arena, a decision last year from the

First Circuit Court of Appeals in garnering attention

because of the judicial sanctioning of the methodology

used by the plaintiff’s expert in giving an opinion that a

special form of leukemia (APL) was caused by exposure

to benzene. Milward v Acuity Specialty Products Group,

Inc 639 F3d 11 (1st Cir 2011). The expert based his

opinion on causation in part on a “weight of the

evidence” approach. This derived from the famous

Bradford Hill article of 1965, which allowed an infer-

ence as to the role of toxic substance played based upon

plausibility, strength of association, dose-reponse, and

so on. The defendant’s challenge to this approach was

that it did not prove causation, only a possible associa-

tion.

Almost too overwhelming an area to tread into in this

article is discovery and production of electronically

stored documents. While any litigation, anywhere in the

world, may well involve the production of emails, phone

texts, and whatever else may be invented tomorrow,

mass tort litigation presents the problems acutely. Rou-

tinely now in new mass torts, such as those listed above,

the defendant turns over million upon millions of

documents. Often this is per custodian. Various courts

(and a few legislatures) have attempted to devise rules

and practices for discovery of ESI, and the format of

disclosure. In the past few years, mass tort plaintiff’s

lawyers have been turning to outside services which

have enhanced software to do relevant searches.

Resolution of mass tortsTo the practitioner, the most interesting topic in mass

tort litigation is resolution, aka settlement. Most MDLs

end in settlements, of course, where the strength of the

cases may dictate the amounts. Difficulties in proving

causation or liability obviously depress the valuation,

whereas “punitive damages” type conduct helps to keep

individual case values high.

The most recent trend in settlement of cases has the

name of “inventory” settlements — the defendant approaches

a law firm which has a number of cases and seeks to

work out a settlement of all the cases which the firm has.

This may be done on a confidential basis, whereby the

rates each firm gets for a particular type of case may

differ, or on a pre-arranged evaluation by defendant (a

sort of unwritten grid). Often a new law firm is hired by

the defendant to do this negotiation, separate from the

one which previously had aggressively handled the

litigation.

The most current example of settlement of a large

number of cases is in the Yaz litigation, involving birth

control pills containing drospirenone, made by Bayer.

These products were called Yaz, Yasmin and Ocella.

(This was in an MDL in Ilinois.) Just as the first case was

coming to trial January of this year, defendant agreed to

launch a comprehensive settlement plan, for cases in

federal or state court, but on the inventory basis just

described. Over 10,000 cases are involved, and are

slowly settled. Delay is created by the need to resolve

liens for health care payments, both governmental and

private insurance carriers.

This process is currently being carried out by a visit

by a lawyer from the law firm hired to settle cases, in

which offers are made. These purport to be standard

sums, paid elsewhere. No confidentiality is required,

making it a somewhat transparent process. However,

problems may arise about whether lump sum settlements

are being made and how amounts are spread among

clients.

The offers are being made only one subset of the

injuries claimed, however: clotting effects — pulmonary

embolism and DVT, plus stroke. There are also a large

number of claims for gallbladder injuries, on which

defendant so far refused to negotiate. Here the causation

evidence may be somewhat weaker. A further problem

yet to be faced is injuries from the many generic

versions of drospirenone containing pills.

The inventory process may be contrasted with a grid

type of settlement, as used in the Vioxx cases. The grid

is more efficient and more even handed; once the facts of

the claim are known, the case can be fit into a pigeon-

hole. However, it is more expensive, since usually a

third-party administrator system is needed to determine

objectively the facts of each case.

ConclusionMass tort litigation is alive and well in the US. This

is especially so as to drugs, with the exception of the

generics. It is somewhat less vibrant for medical device

australian product liability reporter October 2012 297

cases, where fully developed and tested devices may be

subject to preemption defenses.

Paul D Rheingold

Senior Partner

Rheingold, McCartney & Giuffra LLP

New York City, United States

[email protected]

American firm Rheingold, McCartney & Giuffra LLP

represents plaintiffs in mass tort product cases including

drugs, devices, automobiles and machines. Rheingold is

Senior Partner, and is a cum laude graduate of Harvard

Law School. He has never been to Australia. The author

can be contacted via the email address listed above and

is happy to try to answer inquiries.


Canadian case law: Arora et al v WhirlpoolCanada LP and Whirlpool CorporationDaniel Stern BLAKE, CASSELS & GRAYDON LLP

Justice Perell of the Superior Court of Justice in

Ontario, Canada recently dismissed the plaintiffs’ class

certification motion in Arora et al v Whirlpool Canada

LP and Whirlpool Corporation,1 on the basis, in part,

that there can be no recovery in a product liability

negligence action for pure economic losses against the

manufacturer of a non-dangerous consumer product.

BackgroundClass actions are permitted in all provinces in Canada,

with nine out of ten provinces having enacted specific

class action legislation.

In most of the provinces that have enacted specific

legislation other than Quebec, an action can be certified

as a class action if the plaintiff can establish that (a) there

is a sustainable cause of action (which will be assessed

based on the pleadings alone), (b) there is an identifiable

class with two or more persons, (c) the claims of those

persons have substantial issues of fact or law in com-

mon, (d) a class action is the preferable procedure for

resolving the common issues having regard to the

objectives of the legislation — access to justice, judicial

economy and behaviour modification, and (e) the pro-

posed representative plaintiff can adequately represent

the interests of the class.

In this case, the named plaintiffs sought to represent

a class of persons who owned front-loading washing

machines manufactured by the defendants between 2001

and 2008. The plaintiffs alleged that the washing machines

suffered from a design defect that led to buildup of

biofilm, mould, mildew and bacteria. The pleadings

alleged that biofilm buildup led to a variety of health

problems as a result of exposure to “toxins and aller-

gens.” However, plaintiffs’ counsel argued the motion on

the basis that the defendants were liable in negligence

for the class members’ pure economic losses. In addition

to the claims based on negligent design, the plaintiffs

also alleged negligent failure to warn, breach of war-

ranty, and misrepresentation contrary to s 52 of the

Competition Act RSC 1985, c C-34.

Negligence claimsIn considering the requirement on a class certification

motion to plead a sustainable cause of action, Justice

Perell ruled that there can be no recovery for pure

economic losses in a product liability action in negli-

gence against the manufacturer of a non-dangerous

product. Justice Perell grounded his decision in an

analysis of past jurisprudence as well as an analysis from

first principles, both of which led him to the same

conclusion.

Jurisprudential analysis

The jurisprudential analysis begins with a review of

the four policy considerations behind the law on recov-

ery for pure economic loss discussed by Justices Iacobucci

and Major in the Supreme Court of Canada (SCC)

decision Martel Building Ltd v Canada:2

economic interests are less compelling of protection thanbodily security or proprietary interests; unlimited ability torecover for pure economic loss could lead to indeterminateliability; economic losses often arise in a commercialcontext, in which parties are best suited to guard againstthem through contracts; and recovery for economic losscould encourage inappropriate lawsuits.

Justice Perell then noted the five exceptions to this

rule cited by the SCC in Canadian National Railway Co

v Norsk Pacific Steamship Co:3 negligent misrepresen-

tation; negligence of public authorities; negligent per-

formance of a service; supply of shoddy goods or

structures; and relational economic losses.

The SCC elaborated on the exception for the supply

of shoddy goods or structures in Winnipeg Condo-

minium Corporation No 36 v Bird Construction Co,4

which remains the leading Canadian appellate precedent

on the matter. There, Justice La Forest held that the

exception required the defect to be “dangerous” and not

merely “shoddy,” since the rationale behind the excep-

tion was that courts should not require a person to be

physically injured in order to sue, when the danger is

readily apparent in advance. On the whole, Justice Perell

interpreted the Winnipeg Condominium decision to stand

for the proposition that the exception is narrowly limited

to pure economic losses caused by “substantially dan-

gerous products” (generally, the costs to repair a product

to prevent danger from materialising), noting that “[d]an-

gerousness was the cornerstone to the duty of care

analysis and a critical precondition to liability.”


Justice Perell reviewed a number of decisions dis-

cussing recoverability of pure economic loss and only

allowing recovery for “dangerous” products, as well as a

number of earlier class certification decisions, including

some that held claims for pure economic loss could

proceed to trial and certified the class actions proposed:

Griffın v Dell Canada Inc;5Gariepy v Shell Oil Co;6

Bondy v Toshiba Canada Ltd;7 and Barwin v IKO

Industries.8 Justice Perell distinguished most of these

latter decisions but generally held that, insofar as any of

them stands for the proposition that a plaintiff can

recover in tort for pure economic loss, he believes they

are wrongly decided.

First principles analysisJustice Perell also offered a theoretical explanation

for why the law should not recognise tort claims for pure

economic loss. He found that, although manufacturers

owe consumers a prima facie duty of care, that duty is

negated by public policy considerations when the losses

claimed are pure economic losses. He found that the

reasons given for why economic loss should not be

actionable reflect a policy decision that compensation

for economic losses is best regulated by contract and

property law absent, some countervailing policy (eg,

protecting injury from a dangerous product) to justify

tort law regulating economic activity. He therefore

concluded that the “century old policies … against

negligence law providing compensation for pure eco-

nomic losses apply in the case at bar to negate a duty of

care…”

Contractual and statutory claimsThe plaintiffs also claimed that Whirlpool breached

an express or implied warranty to supply goods free

from material defects and fit for their intended purpose.

While the washing machines did include a warranty,

Justice Perell found that the warranty only covered

defects in materials or workmanship, and that there was

no express or implied term of the warranty covering

design defects. Thus there was no tenable cause of

action for breach of warranty.

Justice Perell also ruled that there was no tenable

cause of action with respect to the Competition Act

claims. The plaintiffs argued that Whirlpool had made

false and misleading representations by omission, that

is, that Whirlpool failed to disclose a defect to custom-

ers. Justice Perell agreed that in some circumstances an

omission can constitute a false and misleading represen-

tation within the meaning of the Competition Act.

However, absent a duty of care, statutory duty to

disclose or a fiduciary duty to speak, silence will

generally not be considered a representation. In this

case, given that the alleged design defect was not

dangerous, Justice Perell held that.

Whirlpool “was not under a duty to disparage its own

product and disclose the alleged design defect.”

ConclusionThis decision is of significant importance to the

products liability bar and to manufacturers doing busi-

ness in Canada. It confirms that product liability negli-

gence claims for non-dangerous products are not actionable,

a ruling that should help manufacturers resist class

actions in similar cases and rely more strongly on their

contracts.

Daniel Stern

Associate

Blake, Cassels & Graydon LLP

[email protected]

Footnotes1. Arora et al v Whirlpool Canada LP and Whirlpool Corporation

[2012] ONSC 2642.

2. Martel Building Ltd v Canada [2000] 2 SCR 860; 2000 SCC

60.

3. Canadian National Railway Co v Norsk Pacific Steamship Co

(1992) 91 DLR (4th) 289; [1992] 1 SCR 1021.

4. Winnipeg Condominium Corporation No 36 v Bird Construc-

tion Co (1995) 121 DLR (4th) 193; [1995] 1 SCR 85; [1995]

3 WWR 8.

5. Griffın v Dell Canada Inc [2009] OJ No 418.

6. Gariepy v Shell Oil Co [2002] OJ No 2766.

7. Bondy v Toshiba Canada Ltd [2007] OJ No 784.

8. Barwin v IKO Industries [2012] OJ No 3332.


Consumer law and policy developments inNew Zealand — an excerpt from the upcoming“Consumer Law and Policy in Australia andNew Zealand” (Federation Press, 2013)Kate Tokeley VICTORIA UNIVERSITY OF WELLINGTON, NEW ZEALAND

IntroductionFrom the late 1960s onwards the New Zealand

Parliament began to intervene in the marketplace in

order to give more protection to consumers. The most

significant pieces of New Zealand consumer protection

legislation are the Fair Trading Act 1986, the Consumer

Guarantees Act 1993 and the Credit Contracts and

Consumer Finance Act 2003.1 The Fair Trading Act 1986

prohibits misleading conduct in trade, controls some

specific unfair practices and provides for pre-sale prod-

uct safety standards. The Consumer Guarantees Act 1993,

which is modeled on legislation from the Canadian

province of Saskatchewan, provides a set of minimum

standards as to the quality of goods and services sold to

New Zealand consumers.2 The Credit Contracts and

Consumer Finance Act 2003 provides for disclosure

requirements for consumer credit contracts and prohibits

unreasonable fees and oppressive credit contracts.

Other consumer statues dealing with specific types of

consumer sales include the Door to Door Sales Act 1967,

the Layby Sales Act 1971 and the Unsolicited Goods

and Services Act 1975. There are also various industry-

specific Ombudsman schemes and Codes of Practice.3 In

addition, mechanisms such as the Disputes Tribunals

have been introduced to improve consumer access to

justice by offering a less expensive, faster and more

informal alternative to court proceedings for small

claims.4 A wide variety of other measures can also be

viewed as types of consumer protection regulation. For

example, the laws that regulate products such as tobacco,

alcohol and medicine are designed to reduce consumer

harm.5

New Zealand society is a region noted for its strong

Welfare State provisions such as a public health system

and an extensive benefit regime. The ideals of the

welfare state are compatible with an acceptance that the

government has a role to play in protecting consumers.

It is therefore not surprising that New Zealand has a

relatively strong set of consumer protection laws. While

the welfare-state model has always been an important

part of New Zealand public policy, it has not remained

unchallenged. The most notable move away from “wel-

fare state” policies occurred between the years of 1984

to 1990 when the Labour-led government instituted a

series of free market-oriented reforms in response to

New Zealand’s mounting external debt. The present the

National-led government, which has been in power since

2009, tends toward a similar reluctance to interfere in

the market. One of its stated goals is to move toward less

regulation.6

Since the early 2000s there have been several devel-

opments in New Zealand consumer policy and law,

influenced by a number of somewhat conflicting factors

such as:

• technological changes in the market-place such as

internet trading and online auctions;

• the publication of the Organisation for Economic

Co-operation and Development (OECD) toolkit

for consumer law;7

• recent findings in behavioural sciences that sug-

gest that consumers suffer from cognitive weak-

nesses that mean they do not always make rational,

welfare-maximising choices;8

• the global financial crises since 2008;

• recent reforms in Australia culminating in the

Australian Consumer Law;9

• the current New Zealand’s Government’s principle

of “better regulation, less regulation”.10

The following is a summary of the most significant

developments in New Zealand consumer law and policy

since the early 2000s.

Consumer creditThe regulation of consumer credit in New Zealand is

currently under review. At present the Credit Contracts

and Consumer Finance Act 2003 (CCCFA) regulates

“consumer” credit contracts.11 It repealed the Credit


Contracts Act 1981 and the Hire Purchase Act 1971. The

CCCFA expands the definition of “credit” contracts to

catch agreements that are “in substance” credit arrange-

ments.12 It focuses on protecting the interests of con-

sumers rather than businesses.13

The prevailing approach to consumer protection under

the 2003 Act is to require adequate levels of information

disclosure in order to allow consumers to make the best

decision for themselves.14 The Act aims to protect

consumers by providing meaningful disclosure of key

information before the consumer becomes irrevocably

committed to the contract. In addition there are some

limits imposed on the conduct of lenders. For example,

there is a prohibition on unreasonable fees and oppres-

sive credit contracts and there is some protection for

consumers in cases of unforeseen hardship.15 There is,

however, no requirement that lenders behave responsi-

bly when loaning money to consumers.

Research published in late 2008 showed that many

New Zealand consumers make seemingly poor choices

about how much to borrow and on what terms.16 In 2011

a New Zealand Financial Summit brought together

people from community groups, budgeting services,

NGOs, banks, financial regulators, and credit providers

to consider appropriate responses to irresponsible lend-

ing. The participants concluded that the CCCFA 2003 is

not providing sufficient consumer protection from unscru-

pulous lenders. They supported the idea of following

Australia’s lead by introducing legislation to require

responsible lending.17

In 2012 a Draft Exposure Credit Contracts and

Consumer Finance Amendment Bill was released. This

Bill, if enacted, will introduce the principle of respon-

sible lending. Lenders of credit to consumers will be

expected to exercise reasonable care and skill in the

providing of credit. Not only must they provide consum-

ers with adequate information expressed in a clear

concise and intelligible manner, they must also ensure

that the terms of the credit contract are not unduly

onerous.18 The lender will be required to make reason-

able inquiries as to the consumer’s financial position and

their credit requirements and be satisfied that the credit

contract is appropriate and affordable for the con-

sumer.19 Unlike the approach taken by a further pro-

posed credit reform in Australia, the New Zealand Bill

does not include a cap on interest rates.20 New Zealand

policy-makers are counting on the initiatives in the Bill

to adequately encourage lenders to behave more respon-

sibly and thus drive interest rates down without the need

for specific bright-line caps.21 Once submissions on the

Exposure Bill have been assessed, the Bill will be

finalised and introduced into the New Zealand Parlia-

ment.

Consumer Law Reform Bill 2011Consumer Credit is not the only area of New Zealand

consumer law undergoing review. New Zealand has

recently conducted a general and wide-ranging review

of many other consumer statutes.22 The review has

culminated in the Consumer Law Reform Bill 2011,

aimed at revising and updating New Zealand consumer

laws. It passed its first reading on 9 February 2012.

This review of New Zealand consumer laws has been

informed by the Australian Productivity Commission

review of Australia’s consumer policy framework and

the development of the Australian Consumer Law.23 One

of the stated policy objectives of the Bill is to achieve

alignment with the Australian Consumer Law, as appro-

priate, in accordance with the Government’s agenda of a

single economic market with Australia.24 Nevertheless,

the Bill does not follow the most fundamental reform

adopted by Australia, the introduction of a prohibition

on unfair terms. This reform was recommended by the

New Zealand Ministry of Consumer Affairs (the Minis-

try) in its 2010 Discussion papers on the Consumer Law

Reform, but is absent from the Bill.25

The Explanatory Note to the Bill states that the

current consumer laws are generally sound, albeit hav-

ing some gaps and out-of-date laws. The Bill conse-

quently deals largely with reorganising and modernising

existing consumer laws rather than introducing a raft of

substantively new consumer laws. In fact, the review is

based on the debatable premise that moving toward less

regulation is an important policy goal for New Zealand.26

The main changes made by the Consumer Law Bill

are:

• The incorporation of four narrowly-focused stat-

utes into the Fair Trading Act 1986. The four

statutes that will be repealed and incorporated into

the amended Fair Trading Act are the Auctioneers

Act 1928, the Door to Door Sales Act 1967, the

Layby Sales Act 1971 and the Unsolicited Goods

and Services Act 1975.

• An extension of the Consumer Guarantees Act 1993

to cover new goods sold by traders in traditional

and online auctions.27 This change means consum-

ers must purchase auctioned goods with statutory

guarantees rather than take their chances and

obtain the product at a possibly cheaper price with

no guarantees as to quality. The update makes

sense because it is difficult to rationalise providing

a lower level of consumer protection simply because

the sale occurs in an online auction or traditional

auction rather than in a shop.

• The inclusion of new “purposes” clauses for the

Fair Trading Act 1986, Consumer Guarantees

Act 1993 and the Weights and Measures Act 1987.


For example, cl 5 of the Bill provides that the

purpose of the Fair Trading Act 1986 is to con-

tribute to a trading environment in which trading

is fair, there is effective competition and consum-

ers and businesses can participate confidently.

• A requirement that auctioneers be registered.28

• An extension to the Minister’s ability to prohibit

unsafe goods.29 This amendment would allow the

Minister to declare unsafe any goods where he or

she considers that a reasonably foreseeable use or

misuse of the goods will, or may, cause injury to

any person.30 The Minister may then prohibit the

supply of these goods. The new provision is an

extension of the current rule which allows only a

consideration of the “ordinary use” of the goods

rather than a “reasonably foreseeable use or mis-

use” of the goods. The provision covers goods that

are considered to have the potential to injure “any

person”, not just people “other than the con-

sumer”. It therefore covers situations where there

is a potential for the good to injure the consumer

who has acquired the good. The provision has the

potential to restrict a consumer’s freedom to

choose to buy a potentially unsafe product and use

it in a safe manner or alternatively to assume the

risks of using the product in an unsafe manner.31

• An extension of the Disputes Tribunal jurisdiction

to cover complaints about misleading conduct.32

• A requirement for a five day cooling-off period for

consumers who purchase extended warranties.33

Selling extended warranties is now common-place

in New Zealand. The value of some of these

warranties is questionable given that the consumer

already has statutory guarantees under the Con-

sumer Guarantees Act 1993.

• The inclusion in the Consumer Guarantees Act 1993

of a provision that details how to apply the

acceptable quality guarantee to the supply of

electricity and gas.34

• A new product safety requirement that suppliers

must notify all voluntary product safety recalls to

the Ministry.35 Commentators have argued that

this is an unnecessary burden on suppliers that

could have the unintended consequence of suppli-

ers becoming unwilling to acknowledge faults in a

product and order a recall.36

• An extension of the door-to-door sales consumer

protection to telemarketing and other uninvited

direct selling techniques.37

• The introduction of a prohibition on traders mak-

ing unsubstantiated representations.38 This provi-

sion might seem somewhat redundant given that

any unsubstantiated representation is almost cer-

tainly likely to breach the more general require-

ment under s 9 of the Fair Trading Act that traders

not engage in misleading conduct or the s 13

requirement that they not make false representa-

tions. Nevertheless, the provision places a heavier

burden on suppliers than ss 9 and 13 because it

shifts the burden of proof on to the supplier. In

order to defend an allegation that a claim is

unsubstantiated the supplier would have to prove

that it had reasonable grounds to justify or sub-

stantiate the claim at the time the claim was made.

This general prohibition on unsubstantiated claims

is different from the approach taken in Australia

which simply allows the regulator to require a

substantiation notice when a supplier makes a

claim or representation promoting or intending to

promote their product.39 The substantiation notice

is required to provide information capable of

substantiating the claim or representation.

Some of the consumer law reforms not adopted by

the Consumer Law Reform Bill include:

• A prohibition on unfair terms. As has been men-

tioned above, the most striking omission from the

Bill is the lack of provisions about unfair contract

terms. Regulators in both the United Kingdom and

Australia have accepted that in the case of non-

core terms in standard form consumer contracts

there is an imbalance of power that favours the

supplier and have legislated accordingly.40 In

standard form contracts the details of the parties’

rights and duties can be lengthy and complex.

Most consumers do not examine these terms and

have little ability to influence them.41 The Minis-

try Discussion Paper on this topic, published prior

to the drafting of the Bill, concluded that there is

a strong case for regulating unfair contract terms

provisions in New Zealand.42 Unfortunately, the

government subsequently chose not to proceed

with the unfair terms prohibition at this time.

Instead it is planning to monitor the Australian

experience over the next few years.43

• Statutory provisions on unconscionable conduct.

Unconscionability remains an area of law covered

by general contract law. The Ministry initially

supported the idea of including it in the Consumer

Law Reform Bill.44 However, the Government

rejected this in the face of too much protest from

business community. There was also concern that

a statutory provision was unnecessary given that

New Zealand already has a well-developed doc-

trine of unconscionability in the case law.45


• A prohibition on unsolicited direct selling at defined

times of day. The Australian Consumer Law includes

a prohibition of unsolicited salespersons phoning

or visiting consumers at home before 9am and

after 6pm and on Sundays and public holidays.

The rationale for this restriction is the likelihood

that the majority of consumers would consider

unsolicited phone calls or visits, particularly in the

evenings as a nuisance and an invasion of their

privacy. Unfortunately such a prohibition is not

included in the New Zealand Bill. The Ministry of

Consumer Affairs considered that there was not

sufficiently strong evidence that there are issues

relating to calling hours in New Zealand, and that

industry self-regulation appears to have minimised

problems of this nature.46

• The consolidation of all consumer laws into one

statute. One of the original objectives of the

review of consumer law was to achieve a “simpli-

fication and consolidation of existing laws”.47

Nevertheless, the Consumer Law Reform Bill 2011

does not create one Omnibus consumer statute

akin to the Australian Consumer Law. Instead the

two main consumer statutes, the Fair Trading

Act 1986 and the Consumer Guarantees Act 1993

continue to operate separately. However, as explained

above, four narrowly defined statutes have been

drawn together under the umbrella of the Fair

Trading Act 1986.

• Provision for public enforcement of the Consumer

Guarantees Act 1993. The Bill does not provide

for a public enforcement agency for the Consumer

Guarantees Act 1993. Unlike the comparable guar-

antees under the Australian Consumer Law,48 the

New Zealand guarantees remain enforceable only

by the consumer. This means that consumer redress

depends entirely on consumer knowledge and

action.

Consumer protection in the financial marketsSince 2008 there have been major reforms aimed at

improving consumer protection in financial markets.

These reforms have been in response to the GFC and the

collapse of New Zealand finance companies which had

a traumatic effect on many New Zealanders.49 The

reforms have been progressed on a staged basis.

• Financial Markets Advice: The Financial Advisors

Act 2008 aims to increase consumer protection in

respect of the provision of financial advice. The

purpose of this Act is to promote the sound and

efficient delivery of financial adviser and broking

services, and to encourage public confidence in the

professionalism and integrity of financial advisers

and brokers.50 The most significant reform is therequirement that when a “financial advisor” rec-ommends or provides guidance in relation to thebuying or selling of a financial product he or shemust take reasonable care and must take intoaccount the requirements of the consumer.51 Inaddition, the regulations made under the Actrequire advisors to disclose certain information toconsumers such as whether the advisor receivesany payments from people or organisations thatmight influence the financial advice provided.52

• Finance Service Providers Registration and Dis-

pute Resolution: The Financial Service Providers(Registration and Dispute Resolution) Act 2008requires financial service providers who provide

service to retail consumers to be registered and to

be members of an approved dispute resolution

scheme.

• Financial Markets Authority: The Authority was

established in 2011 under the Financial Markets

Authority Act 2011. Its aim is to promote invest-

ment markets that are fair, efficient and transpar-

ent.53 The introduction of a single “super regulator”

was prompted by the need to restore investor

confidence after the global financial crisis.54 The

Authority assumes the functions of the Securities

Commission, Government Actuary and overtakes

some regulatory functions of the Ministry of

Economic Development. The Authority’s func-

tions include promoting the confident and informed

participation of consumers in the financial markets

by disseminating information, education and warn-

ings about matters relating to financial markets.55

The Authority also monitors compliance with

financial markets legislation.56

• The Financial Markets Conduct Bill: This Bill

completes the package of reforms of the New

Zealand financial markets. It consolidates New

Zealand securities law into one easily accessible

statute with a goal of facilitating the development

of fair, efficient, transparent financial markets and

promoting the confident and informed participa-

tion of businesses, investors, and consumers in the

financial markets.57 The Bill sets out rules about

the way financial products are offered, promoted,

issued and sold. The Commerce Select Committee

reported on the Bill in September 2012.58 It made

some adjustments to the Bill and recommended

that the Bill be enacted. The main changes intro-

duced by the Bill that are relevant to consumer

protection include:

— The addition of a new general offence for false

or misleading statements in relation to financial

services and products. It is intended that the


FMA will deal with these offences rather the

conduct being dealt with by the Commerce

Commission under the Fair Trading Act 1986;

— simplification of the disclosure regime so that

investors receive key information in a clear

manner;

— Changes to the governance of financial prod-

ucts and services including the addition of

duties for managers of investment schemes to

act in the best interests of scheme participants;

— An increased emphasis on civil liability for

breaches of the regime. Establishment of crimi-

nal liability for directors where there is a

disclosure defect and the director is either

reckless or the director has knowledge of the

defect;

— Providing FMA with powers to monitor com-

pliance with the Act;

— A prohibition of offers of financial products in

the course of unsolicited meetings.

Otherconsumerprotection lawunderreview

• Leaky Buildings: From the mid-1990’s New Zealand

has suffered what has been termed a “leaky

building crisis” which has been blamed at least in

part on the light-handed regulatory approach intro-

duced by the BuildingAct 1991.59 The Mediterranean-

style homes built in the mid to late 1990s used

untreated timber and poor construction techniques

which subsequently caused buildings to leak. The

total economic cost of the crises has been esti-

mated at 11.3 billion dollars (in 2008 dollars).60

The Building Act 2004 replaced the 1991 Act. It

strengthens the regulation of the building industry

by extending the range of work for which a

buildingconsent,movingback towardmoreprescriptive-

based regulation and providing implied warranties

for the quality of construction.61 In addition, the

Weathertight Homes Resolution Services Act 2006

was enacted in order to provide a fast, flexible and

inexpensive resolution service for claims involv-

ing leaky buildings.-based regulation.62 Homeown-

ers are able to take their claim to a Weathertight

Homes Tribunal instead of having to engage in

lengthy and expensive court proceedings.

• Anti-gambling Laws: In 2000 a review of New

Zealand gambling laws was conducted in response

to a perception that consumers in New Zealand

were suffering from an increase in problem-

gambling.63 This review culminated in the Gam-

bling Act 2003, which harmonised and strengthened

the previous regulatory scheme. The objectives of

the Act include controlling the growth of gam-

bling, minimising the harm caused by problem

gambling, and facilitating responsible gambling.64

Gambling is illegal unless it is authorised by the

Act. One interesting consumer protection measure

introduced by the Act is to require gambling venue

managers to exclude all self-identified problem-

gamblers from their venue.65 More recently the

Gambling (Gambling Harm Reduction) Bill 2010

seeks to introduce additional measures to minimise

harm caused by gambling. It aims to overcome

problems caused by excessive numbers of pokies

being located in low income areas with high

numbers of Maori and Pasifika people by enabling

local authorities, in consultation with their com-

munities, to reduce or eliminate pokies from those

suburbs and towns where they are particularly

concentrated or doing particular harm.66 The Bill

is currently going through the select committee

process.

• Retirement Savings Regulation: the KiwiSaver

scheme was introduced in 2007 in response to

concerns that New Zealander consumers spend too

much and fail to adequately save for their retire-

ment. The KiwiSaver scheme is an opt-out retire-

ment savings scheme which includes some government

subsidies. Joining the scheme is voluntary but

workers are automatically enrolled when they start

a new job and then have six weeks to opt-out.67

Otherconsumerprotection lawunderreview

• Natural supplements: The regulation of the sale of

natural health products in New Zealand is cur-

rently under review.68 Under the existing law there

is very little regulation of the natural health

product industry. Product labels must not be mis-

leading and no therapeutic claims can be made if

the product is to avoid being categorised as a

medicine and consequently be subject to the strin-

gent safety requirements of the MedicinesAct 1981.69

The Therapeutics Products and Medicines Bill 2006

proposed a joint trans-Tasman regulatory scheme

for the regulation of therapeutic products. The Bill

was vigorously opposed by both the Green Party

and the Maori Party and the alternative health

products industry. One of the main concerns was

that the joint scheme would undermine New

Zealand’s sovereignty. There was insufficient sup-

port for the Bill to be enacted. In 2011 the Natural

Health Products Bill was introduced in to Parlia-

ment.70 This Bill proposes a domestic scheme.


The Bill aims to improve the accuracy of con-

sumer information and to introduce safety mea-

sures proportionate to the risks associated with

these products.71 If enacted, it will tighten the

regulation of natural health products in New

Zealand.

• Tobacco Regulation: The current government is

committed to making New Zealand smoke-free by

2025.72 A recent government inquiry into the

tobacco industry has recommended interventions

such as banning cigarette vending machines, pro-

hibiting shop displays of tobacco, plain packaging

and reducing duty-free allowances.73

• Alcohol Regulation: The Alcohol Reform Bill 2010

was drafted in response to the New Zealand Law

Commissions 2010 report entitled Alcohol in Our

Lives: Curbing the Harm.74 Alcohol causes major

social and health-related harm to consumers in

New Zealand. The Bill aims to reduce this harm

by measures such as tighter liquor licensing rules

and changing the legal purchasing age. However,

many of the recommendations in the Law Com-

mission report, such as price control and stricter

control of alcohol advertising, are not adopted by

the Bill.

Kate Tokeley

Senior Lecturer

Victoria University of Wellington, New Zealand

A version of this article is forthcoming in J Malbon and

L Nottage (eds) Consumer Law and Policy in Australia

and New Zealand Federation Press, 2013.

Footnotes1. See, for example, G Austin “The Regulation of Consumer

Credit Products: An Examination of Baseline Assumptions”

in S Frankel (ed) Learning from the Past Adapting for the

Future: Regulatory Reform in New Zealand Lexis Nexis,

Wellington, 2011 p 295.

2. The Saskatchewan statute on which the New Zealand legisla-

tion is modeled is called the Consumer Product Warranty and

Liability Act 1978. It has subsequently been replaced by the

Consumer Protection Act 1996 (Saskatchewan).

3. For example, the Electricity and Gas Complaints Commission,

The Office of the Banking Ombudsman, The Insurance and

Savings Ombudsman and the New Zealand Medical Associa-

tion Code of Ethics available at: www.nzma.org.nz/sites/all/

files/CodeOfEthics.pdf.

4. Disputes Tribunal Act 1988 (NZ).

5. See the Smoke-free Environments Act 1990 (NZ), the Sale of

Liquor Act 1989 (NZ) and the Medicines Act 1981 (NZ).

6. The government released a statement on regulation entitled:

Better Regulation, Less Regulation in 2009. The statement

indicates that the government has a preference for minimal

legal intervention in the market place. See Hon Bill English

and Hon Rodney Hide “Government Statement on Regulation:

Better Regulation, Less Regulation” 17 August 2009 available

at: www.treasury.govt.nz.

7. The Organisation for Economic Co-operation and Develop-

ment (OECD) The Consumer Policy Toolkit 2010 was devised

by the OECD with significant input from New Zealand

officials. It is regularly used by the Ministry of Consumer

Affairs in the development of policy. See, for example,

Ministry of Consumer Affairs Consumer Law Reform Addi-

tional Paper — February 2011 Consumer Information Stan-

dards (2011).

8. These findings provide a rationale for some of the more

paternalistic consumer law reform in areas such as gambling,

smoking, alcohol consumption, over-indebtedness and retire-

ment savings. See generally T Irwin Implications of Behavioural

Economics for Regulatory Reform in New Zealand (Sapere

Research Group, 2010); New Zealand Ministry of Economic

Development, Behavioural Analysis for Policy: New lessons

from economics, philosophy, psychology, cognitive science and

sociology (2006). There is a substantial body of literature on

the implications of behavioural economics to law. See, for

example, C Sunstein “Empirically Informed Regulation” (2011)

U. Chi. L. R. 1349 at 1350–361; R B Korobkin & T S Ulen

“Law and Behavioural Science: Removing the Rationality

Assumption from Law and Economics” (2000) 88 Cal. L. Rev

1051: C Joll et al, “Law and Behavioural Approach to Law and

Economics” (1998) 50 Stan. L. Rev 1471.

9. Competition and Consumer Act 2010, Sch 2; Malbon and

Nottage, Ch 1 of this volume.

10. Above, n 6.

11. “Consumer credit contracts” are defined as those that are

“primarily for personal, domestic or household purposes”

(CCCFA s 11).

12. Credit Contracts and Consumer Finance Act 2003 (NZ) s 7(2).

13. Apart from the provisions in respect of oppressive credit

contracts, the CCFA leaves the regulation of credit provided for

business purposes largely to the common law.

14. Credit Contracts and Consumer Finance Act 2003 (NZ) Sch 1.

15. Credit Contracts and Consumer Finance Act 2003 (NZ) ss 41–44

(unreasonable fees), ss 55–59 (unforeseen hardship), ss 117–131

(oppressive credit contracts).

16. J Legge and A Heynes Beyond Reasonable Debt Part 1: A

Background Report on the Indebtedness of New Zealand

Families (Research Report 8/08, Families Commission and

Retirement Commission, Wellington, December 2008), avail-

able at www.familiescommission.govt.nz. Ministry of Con-

sumer Affairs Review of the Operation of the Credit Contracts

and Consumer Finance Act 2003 (September 2009) available

at www.consumeraffairs.govt.nz.

17. See Malbon, Ch 9 of this volume.


18. Clause 9B(2)(b) and (c).

19. Clause 9B(2)(e) and (f).

20. The Australian National Consumer Credit Protection Amend-

ment (Enhancements) Bill 2011 proposes that from 1 July 2012

an Australian credit provider must not enter into a credit

contract, including continuing credit contracts but excluding

small amount credit contracts, if the annual cost rate of the

contract exceeds 48 per cent. See Howell, Ch 12 in this

volume; and D McGill, S Corones, N Howell, “Regulating the

Cost of Small Loans: Overdue or Overkill?” (2012) 30 C &

SLJ 149.

21. See C Tremain “Tougher laws for loan sharks” media release

2 April 2012 available at www.beehive.govt.nz. Interestingly,

there is no evidence that introducing responsible lending

obligations had the effect of lowering interest rates in Australia.

22. Ministry of Consumer Affairs Consumer Law Reform: A

Discussion Paper June 2010 para 2 available at www.consumeraf-

fairs.govt.nz. The Review covers the Fair Trading Act 1986,

the Consumer Guarantees Act 1993, the Weights and Measures

Act 1987, the Carriage of Goods Act 1979, the Sale of Goods

Act 1908, the Secondhand Dealers and Pawnbrokers Act 2004,

the Auctioneers Act 1928, the Door to Door Sales Act 1967, the

Layby Sales Act 1971 and the Unsolicited Goods and Services

Act 1975.

23. Australian Government Productivity Commission Review of

Australia’s Consumer Policy Framework, Productivity Com-

mission Inquiry (Report no 45, 30 April 2008) available at

www.pc.gov.au; Malbon and Nottage, Ch 1 of this volume.

24. See Consumer Law Reform Bill 2011 (NZ), General Policy

Statement in the Explanatory Note, p 1. More generally on

Trans-Tasman economic integration and regulatory coopera-

tion, see L Nottage “Asia-Pacific Regional Architecture and

Consumer Product Safety Regulation for a Post-FTA Era”

Sydney Law School Research Paper No 09/125 4 Octo-

ber 2011. Available at SSRN: http://ssrn.com/abstract=1509810

(forthcoming in Ashgate book co-edited by Meredith and

Suzy).

25. See Consumer Law Reform Discussion Paper above n 23,

para 6.2.1 and see also Consumer Law Reform Additional

Paper — September 2012 — Unfair Contract terms (2012)

available at http://www.consumeraffairs.govt.nz/legislation-

policy/policy-development/consumer-law-reform.

26. Consumer Law Reform Discussion Paper above n 20, para 2.

See also government statement on regulation entitled: Better

Regulation, Less Regulation 17 August 2009 available at

www.treasury.govt.nz.

27. Consumer Law Reform Bill 2011 (NZ), cl 39 and cl 40.

28. Clause 66 requires auctioneers to be registered and 67 disquali-

fies certain people from registration. Compare also Paterson

and Tokeley, Ch 4 of this volume.

29. Consumer Law Reform Bill 2011 (NZ) (287–1), cl 14.

30. Consumer Law Reform Bill 2011 (NZ) (287–1), cl 14(1A).

31. A similar provision was discussed and enacted in the context of

the Australian Consumer Law reforms: see Kellam and Not-

tage, Ch 8 of this volume.

32. Consumer Law Reform Bill 2011 (NZ) (287–1), cl 21.

33. See s 36U inserted by cl 18 of the Consumer Law Reform

Bill 2011 (NZ). The United Kingdom also provide for a

cooling-off period for extended warranties: see the Supply of

Extended Warranties on Domestic Goods Order 2005 (UK),

under the Fair Trading Act 1973 (UK).

34. Consumer Law Reform Bill 2011 (NZ), cll 35 and 36.

35. Section 31 inserted by cl 15 of the Consumer Law Reform Bill

2011 (NZ).

36. P Stubbs and J Varcoe “Product Safety in New Zealand: Major

Changes on the Way” (2012) (22) (6) Australian Product

Liability Reporter 240.

37. Section 36K inserted by cl 18 of the Consumer Law Reform

Bill 2011 (NZ).

38. Clause 9. An unsubstantiated representation is defined as a

representation made by a person who does not have reasonable

grounds for making that representation whether or not that

representation in fact false or misleading. However, if there are

no reasonable grounds for making a representation it seems

likely that the representation would indeed be misleading.

39. Competition and Consumer Act 2010, Sch 2, Australian Con-

sumer Law s 219. See Lanyon, Ch 14 of this volume.

40. The Unfair Terms in Consumer Contracts Regulations 1999

(UK); Competition and Consumer Act 2010, Sch 2, Australian

Consumer Law ss 23 and 24.

41. The inability of the consumer to influence the terms of

standard-form contracts prompted Friedrich Kessler to describe

these contracts as “contracts of adhesion”. See F Kessler

“Contracts of Adhesion — Some Thoughts about Freedom of

Contract” (1943) 43 Colum L Rev 629. Failing to read all

standard form terms should not necessarily be viewed as

irrational behaviour. Some economic theorists actually describe

consumers’ behaviour in this regard as “rational ignorance”.

See R E Barnett “Consenting to Form Contracts” (2002–2003)

71 Fordham L Rev 627, 631; T D Rakoff “Contracts of

Adhesion: An Essay in Reconstruction” (1983) 96 Harv L Rev

1173.

42. See Consumer Law Reform Additional Paper — Septem-

ber 2010 Unfair Contract Terms available at www.consumeraf-

fairs.govt.nz. For a full examination of standard-form consumer

contracts and the problem of unfair terms see K Tokeley

“Introducing a Prohibition on Unfair Contractual Terms into

New Zealand Law: Justifications and Suggestions for Reform.”

(2009) NZULR 418–448.

43. See Office of the Minister of Consumer Affairs Consumer Law

Reform available at www.consumeraffairs.govt.nz. Australia in

fact already has significant experience concerning the impact

of unfair contract terms regulation, as Victoria enacted a

similar scheme in 2002. See further Webb, Ch 5 of this volume.

44. “Consumer Law Reform Additional Paper — October 2010

Unconscionability” available at www.consumeraffairs.govt.nz.


45. Cabinet Economic Growth and Infrastructure Committee Con-

sumer Law Reform (December 2010) at pp 10 and 11 available

at www.consumeraffairs.govt.nz. In Australia, by contrast,

general principles of unconscionability develop in parallel with

legislative provisions, which moreover can be invoked by

regulators (not just parties to contracts): see Webb, Ch 5 in this

volume.

46. See 2010 Regulation of Uninvited Direct Selling available at

www.consumeraffairs.govt.nz.

47. See Ministry of Consumer Affairs Consumer Law Reform: A

Discussion Paper (June 2010) para 2 available at www.consumeraf-

fairs.govt.nz.

48. See Paterson and Tokeley, Ch 4 of this volume; Lanyon, Ch 14.

49. See Ministry of Economic Development Financial Markets

Conduct Bill — Initial Briefing to Comerce Select Committee

(May 2012) and The Financial Markets Conduct Bill —

Capital Markets Matter (Summary report of CMD taskforce

(December 2009) both available at http://www.parliament.nz/

en-NZ/PB/SC/Documents/Advice/?Custom=00DBHOH_BILL11150_1.

50. Financial Services Act 2008 (NZ), s 3.

51. See the Financial Advisors Act 2008 (NZ) s 33. Compare

Pearson, Ch 10 of this volume.

52. Financial Advisors (Disclosure) Regulations 2010 (NZ) sch 1.

53. Section 8.

54. S Power “New financial markets watchdog opens for business”

2011 available at www.beehive.govt.nz. See also G Walker

“Goodbye to All That: A New Financial Markets Authority for

New Zealand” (2011) 29 C&SLJ 239. See also Capital Market

Development Taskforce Report of the Capital Market Devel-

opment Taskforce (December 2009) available at www.med.govt.nz.

The taskforce looked at the state of New Zealand’s capital

markets, the international context, future risks and opportuni-

ties and key changes necessary to deliver the best possible

financial system for New Zealand.

55. Section 9.

56. Section 9.

57. The purposes are stated in cl 3. The Bill will replace a number

of pieces of legislation, including the Securities Act 1978, the

Securities Markets Act 1988, the Unit Trusts Act 1960, the

Superannuation Schemes Act 1989, and aspects of the KiwiSaver

Act 2006.

58. Report on Financial Markets Conduct Bill from the Commerce

Select Committee available at http://www.parliament.nz/NR/

rdonlyres/F7A3F298-6221-4718-A77D-E9E068DBBC36/242101/

DBSCH_SCR_5616_FinancialMarketsConductBill3422_921.pdf.

59. The Building Act 1991 (NZ) established a light-handed form of

regulation which allowed a performance-based approach rather

than relying solely on a prescriptive standards approach. This

was intended to increase innovative building techniques. See P

Mumford Enhancing Performance-Based Regulation: Lessons

from New Zealand’s Building Control System (PhD Thesis)

Victoria University of Wellington 2010. For various critical

assessments of the leaky building issue, see S Alexander et al

The Leaky Building Crisis: Understanding the Issues Thomson

Reuters, 2011.

60. Pricewaterhouse Coopers Weathertightness: Estimating the

cost Wellington, 2009, see Department of Building and Hous-

ing available at www.dbh.govt.nz. By way of comparison the

New Zealand Treasury estimates the damage caused by the two

Christchurch earthquakes in September 2010 and Febru-

ary 2011 at around $20 billion, see Hon Bill English, Minister

of Finance Pre-election Economic and Fiscal Update 2011

available at www.treasury.govt.nz.

61. Sections 396 and 397 provide implied warranties for consum-

ers in respect of materials and building work.

62. The Act replaces the Weathertight Homes Resolution Services

Act 2002. For analysis and discussion on the adjudication

process established under the legislation see D David “A

Weathertight Adjudication Procedure? Adjudication under the

Weathertight Homes Resolution Services Act 2002” 10 Auckland

UL Rev. In 2006 the Act was amended to further enhance the

effectiveness and efficiency of the dispute resolution process.

63. The Department of Internal Affairs Gaming Reform in New

Zealand: towards a new legislative framework 28 Febru-

ary 2001 available at www.dia.govt.nz.

64. See s 3 of the Gambling Act 2003 (NZ).

65. Section 310. Compare PC 2009 Report www.pc.gov.au/projects/

inquiry/gambling-2009.

66. Clause 8.

67. See the KiwiSaver Act 2006 (NZ) ss 9 and 16 and generally

www.kiwi.saver.govt.nz.

68. See the Ministry of Health The Development of a Natural

Health Products Bill Consultation Paper (2010).

69. Natural health products are either covered by the Dietary

Supplements Regulations 1985 (NZ) or the Medicines Act 1981

(NZ).

70. Natural Health Products Bill 2011 No 324–1 (NZ). See also

Ministry of Health The Development of a Natural Health

Products Bill: Consultation paper 2010, Wellington.

71. Clause 4 Natural Health Products Bill 2011 No 324–1 (NZ).

72. See Government Final Response to Report of the Maori Affairs

Committee on Inquiry into the tobacco industry in Aotearoa

and the consequences of tobacco use for Maori, presented to

the House of Representatives in accordance with Standing

Order 248 available at www.parliament.nz.

73. Maori Affairs Committee on Inquiry into the tobacco industry

in Aotearoa and the consequences of tobacco use for Maori

(I.10A) (3 November 2010) available at www.parliament.nz;

The Smoke-free Environments (Controls and Enforcement)

Amendment Bill 2010 (NZ), if enacted, would remove all

tobacco displays in shops. Such advertising is already prohib-

ited in Australia, which has also introduced plain packaging

legislation — prompting litigation and international arbitration

proceedings initiated by tobacco companies: L Nottage “Con-

sumer Product Safety Regulation and Investor-State Arbitra-

tion Policy and Practice after Philip Morris Asia v Australia”

(2011) Australian Product Liability Reporter 22 (1&2) p 154;


Sydney Law School Research Paper No 12/26. Available at

SSRN: http://ssrn.com/abstract=2041680 [or: OUP 2012 Chap-

ter version in L Trakman et al (eds)].

74. The Alcohol Law Reform Bill 2010 236–2 (NZ). The Law

Commission Report Alcohol In Our Lives: Curbing the Harm

NZLC R114 27 April 2010 available at www.lawcom.govt.nz.


INDEX TO VOLUME 22Table of articles

Page numbers in volume 22 correspond to thefollowing issues:

Issue 1&2 — pp 153–76

Issue 3 — pp 177–92

Issue 4 — pp 193–212

Issue 5 — pp 213–28

Issue 6 — pp 229–44

Issue 7 — pp 245–58

Issue 8 — pp 259–78

Issue 9 — pp 279–94

Issue 10 — pp 295–319

This table lists alphabetically by author all articles

appearing in volume 22 of the Australian Product

Liability Reporter.

Abraham, Richard and Cook, LarissaThe introduction of the Australian Biologicals Regula-

tory Framework — 178

Bertrand,Perrine;Freeman,Rod;andKenyon,ValerieEuropean Commission’s fourth report on the Product

Liability Directive: still maintaining the balance between

the interests of producers and consumers — 204

Brown, Ryan CTexas appellate court stabilises “presumption of no

liability” jury instruction in products cases — 254

Chiaves, Filippo and Rolla, FrancescaItaly: smokers’class action declared non-admissible — 162

Cook, Larissa and Abraham, RichardThe introduction of the Australian Biologicals Regula-

tory Framework — 178

Cooper, MontyPassing the smell test: Twombly, Iqbal, and a California

Federal Court’s requirement of more specificity in com-

plaint against defendants — 288

De Campo, Ben and Maxwell, MichaelNanoparticles:Dealingwiththeshiftingsandsofscience — 246

Doris, MartinDeveloping consumer ODR in the European Union — a

model to imitate? — 280

Fleming, MarcusNew primary production and processing standard for

eggs and egg products — 168

Forbes, Roger; Hackney, Beth; Stevenson,Peta; and Saville, MoiraHips and PIPs — a future for product liability class

actions in Australia? — 230

Fraser, Melissa and Zaurrini, RossEarlier rather than later: court orders ACCC to disclose

immunity applicant’s information to other cartel partici-

pants at early stage of cartel proceedings — 200

Freeman, Rod and Hunting, MarkExpert witness fails to impress in car tyre case — 207

Freeman,Rod;Kenyon,Valerie;andBertrand,PerrineEuropean Commission’s fourth report on the Product



Goldberg, Michael and Melnitchouk, OlyaNew toy safety regulations come into play in the

UK — 197

Goldberg, Michael and Pearl, SimonUS Supreme Court ruling provides clarification on

jurisdiction over foreign manufacturers — 164

Guadagno, Nadia; O’Donahoo, Peter; andKinsey, DanielHigh Court denies special leave in Vioxx litigation — 264

Hackney,Beth;Stevenson,Peta;Saville,Moira;and Forbes, RogerHips and PIPs — a future for product liability class


Hammerschlag, Judith and Skinner, MatthewProduct liability in Singapore — an overview — 249


Handorn, BorisGermany: Hamm Court of Appeal decision on import-

er’s duty to examine distributed goods (“Cabin Scooter”

from China) — 256

Hiemstra, MachteldEurope — Netherlands: The application of standard

terms and conditions effectively limits a seller’s liability

to a buyer in a product defect case — 221

Hughes, AnnetteMandatory reporting under the Australian Consumer

Law — an overview, reflection and practical guide — 184

Hunting, Mark and Freeman, RodExpert witness fails to impress in car tyre case — 207

Kapoor, ArunImporters, manufacturers and traders to be impacted by

Germany’s new consumer legislation — 217

Kenyon, Valerie; Bertrand, Perrine; and Free-man, RodEuropean Commission’s fourth report on the Product



Kinsey, Daniel; Guadagno, Nadia; andO’Donahoo, PeterHigh Court denies special leave in Vioxx litigation — 264

Kinsey, Daniel and O’Donahoo, PeterThe Vioxx Appeal — a bitter pill for pharmaceutical

class actions? — 234

Klindt, ThomasThe new German Product Safety Act — 166

Lach, Sebastian and Raichie, JuliaEurope — Germany: Munich Court of Appeals upholds

manufacturer’s liability for exploding bottle — 219

Lin, AngelaImporting foods into Canada: a regulatory overview — 190

Long, PeterThe affect of proportionate liability legislation on prod-

uct liability claims — 194

Macrae, AlisonMedical devices — to approve or not to approve? — 269

Macrae, Alison and Pearl, SimonUSSupremeCourtprotectsgenericdrugmanufacturers — 171

Maher, Andrew; Stone, Susie; and Sharkey,SarahAustralian contract law reform — 260

Maxwell, Michael and De Campo, BenNanoparticles:Dealingwiththeshiftingsandsofscience — 246

McAdams, AlisonParent trap — parental company’s duty of care signifi-

cantly expanded — 274

Melnitchouk, Olya and Goldberg, MichaelNew toy safety regulations come into play in the

UK — 197

Nottage, LukeConsumer product safety regulation and investor-state

arbitration policy and practice after Philip Morris Asia v

Australia — 154

O’Donahoo, Peter and Kinsey, DanielThe Vioxx Appeal — a bitter pill for pharmaceutical

class actions? — 234

O’Donahoo,Peter;Kinsey,Daniel;andGuadagno,NadiaHigh Court denies special leave in Vioxx litigation — 264

Pearl, Simon and Goldberg, MichaelUS Supreme Court ruling provides clarification on

jurisdiction over foreign manufacturers — 164

Pearl, Simon and Macrae, AlisonUSSupremeCourtprotectsgenericdrugmanufacturers — 171

Pearson, GailSuitable for an individual or acceptable for all? A

response to Nottage and Kozuka — 266

Raichie, Julia and Lach, SebastianEurope — Germany: Munich Court of Appeals upholds

manufacturer’s liability for exploding bottle — 219

Rheingold, Paul DMass torts in the United States — 296

Private settlement of mass product litigation in the

United States — 214


Rolla, Francesca and Chiaves, FilippoItaly: smokers’class action declared non-admissible — 162

Rolla, Francesca and Tilve, AdrianaEurope — Italy: The Supreme Court reiterates that

damage ensuing from the death of a relative can be

compensated — 224

Saville, Moira; Forbes, Roger; Hackney, Beth;and Stevenson, PetaHips and PIPs — a future for product liability class


Schucht, CarstenNew guidelines from the EU Commission on import

controls — 272

Sewell, Maggie and Taylor, ClaireSafer products for European consumers: European Par-

liament adopts controversial resolution on the revision

of the GPSD and market surveillance — 169

Sharkey, Sarah; Maher, Andrew; and Stone,SusieAustralian contract law reform — 260

Skinner, Matthew and Hammerschlag, JudithProduct liability in Singapore — an overview — 249

Smith, Michael CSale of Goods Act defendants have some explaining to

do: defect inferred, even in the face of spoliation — 182

Stern, DanielCanadian case law: Arora et al v Whirlpool Canada LP

and Whirlpool Corporation — 299

Stevenson,Peta;Saville,Moira;Forbes,Roger;and Hackney, BethHips and PIPs — a future for product liability class


Stilson, Guy WAmerican asbestos litigation, evidence of exposure to

asbestos — 291

Stone, Susie; Sharkey, Sarah; and Maher,AndrewAustralian contract law reform — 260

Stubbs, Peter and Varcoe, JamesProduct safety in New Zealand: major changes on the

way — 240

Taylor, Claire and Sewell, MaggieSafer products for European consumers: European Par-

liament adopts controversial resolution on the revision

of the GPSD and market surveillance — 169

Tilve, Adriana and Rolla, FrancescaEurope — Italy: The Supreme Court reiterates that

damage ensuing from the death of a relative can be

compensated — 224

Tokeley, KateConsumer law and policy developments in New Zealand

— an excerpt from the upcoming “Consumer Law and

Policy in Australia and New Zealand” (Federation Press,

2013) — 301

Varcoe, James and Stubbs, PeterProduct safety in New Zealand: major changes on the

way — 240

Wende, SusanneJurisdiction over a non-resident manufacturer in product

liability cases under US and European private interna-

tional law — 159

Zaurrini, Ross and Fraser, MelissaEarlier rather than later: court orders ACCC to disclose

immunity applicant’s information to other cartel partici-

pants at early stage of cartel proceedings — 200


Table of casesThis table lists alphabetically all cases appearing in

volume 22 of the Australian Product Liability Reporter.

Page numbers in bold refer to articles focusing on the

relevant case.

ACCC. See Australian Competition and Consumer

Commission

Actos (Pioglitazone) Products Liability Litigation,

Re, MDL 2299 (WDLa) — 296

Amaca Pty Ltd (under NSW administered winding

up) v Booth (2011) 283 ALR 461; 86 ALJR 172; [2011]

HCA 53; BC201109716 — 239, 247–48, 265

Amaca Pty Ltd v Ellis (2010) 240 CLR 111; 263 ALR

576; 84ALJR 226; [2010] HCA5; BC201000970 — 235,

247–48, 265

Amchem Products Inc v Windsor; sub nom (1997)

521 US 591; 138 L Ed 689; 117 S Ct 2231; 65 USLW

4635 — 215, 217

American Optical Corp v Spiewak, Case Nos SC08-

1616 and SC08-1640 (Fla, decided 8 July 2011) — 174

Aquagenics Pty Ltd v Break O’Day Council (2010)

26 BCL 263; [2010] TASFC 3; BC201002872 — 194

Arora vWhirlpool Canada LP 2012 ONSC 2642 — 299

Asahi Metal Industry Co Ltd v Superior Court of

California 480 US 102 (1987) — 164–65, 173

Ashcroft v Iqbal, 556 US 662 (2009) — 174, 288–89

ASIC. See Australian Securities and Investments

Commission

Aswan Engineering Establishment Co v Lupidine

Ltd [1987] 1 WLR 1 — 268

Australian Competition and Consumer Commission

v Prysmian Cavi E Sistemi Energia SRL [2011] FCA

938; BC201106278 — 200–03

Australian Securities and Investments Commission v

PDawson [2008]FCAFC123;(2008)169FCR227 — 201

B1 (Contracting) Pty Ltd v Strikwerda 2005) 3

DDCR 149; [2005] NSWCA288; BC200506703 — 226

Barker v Corus [2006] 2 AC 572; [2006] 3 All ER 785;

[2006] 2 WLR 1027 — 265

Barwin v IKO Industries [2012] OJ No 3332 — 300

BellAtlanticCorpvTwombly550US544(2007) — 174,

288–89

Blackmore v Polaris Indus Inc, Case No 10-00631

(US Dist Ct, D Colo, filed 21 July 2011) — 175

Bondy v Toshiba Canada Ltd [2007] OJ No 784 — 300

BS Brown & Son Ltd v Craiks Ltd [1970] 1 All ER

823; [1970] 1 WLR 752 — 268

Canadian National Railway Co v Norsk Pacific Steam-

ship Co [1992] 1 SCR 1021 — 299

Caparo Industries Plc v Dickman [1990] 2 AC 605;

(1990) 1 ACSR 636; [1990] 1 All ER 568; [1990] 2

WLR 358 — 253, 274

Casey v Perini Corporation, 206 Cal App 4th 1222

(2012) — 291–92

Chandlerv Cape PLC [2012] EWCACiv 525 — 274–75

Chandra v Perpetual Trustees Victoria Ltd (2007)

ANZ ConvR 481; 13 BPR 24,675; [2007] NSWSC 694;

BC200705487 — 194

Chappel v Hart (1998) 195 CLR 232; 156 ALR 517; 72

ALJR 1344; BC9804342 — 235

Codacons v British American Tobacco Italia SpA,

Court of Rome, XIII Division (11April 2011) — 162–63

Conley v Gibson, 355 US 41 (1957) — 288

Connelly v RTZ Corporation PLC, HL 1997 — 274

De Cruz Andrea Heidi v Guangzhou Yuzhitang Health

Products Co Ltd [2003] SGHC 229; [2003] 4 SLR

682 — 252

DePuy Orthopaedics, Inc ASR Hip Implant Products

Liability Litigation, Re, MDL 2197 (NDOh) — 296

Divya v Toyo Tire and Rubber Co Ltd [2011] EWHC

1993 (QB) — 207–09

Evans v Queanbeyan City Council (2011) 9 DDCR

541; [2011] NSWCA 230; BC201105860 — 235,

239

Fairchild v Glenhaven Funeral Services Ltd [2003] 1

AC 32; [2002] 3 All ER 305; [2002] 3 WLR 89 — 265

Fontenot v TASER Int’l Inc, Case No 3:10-125 (US

Dist Ct, WDNC, verdict reached 19 July 2011) — 174–75

Fosamax (Alendronate Sodium) Products Liability

Litigation, Re, MDL 2243 (No II) (DNJ) — 296

Goodyear Dunlop Tires Operations, SA v Brown,

Case No 10-76 (US Supreme Court) — 164–65, 173

Graham Barclay Oysters Pty Ltd v Ryan (2000) 109

LGERA 1; 177 ALR 18; [2000] FCA 1099;

BC200004491 — 268

Griffin v Dell Canada Inc; Gariepy v Shell Oil Co

[2002] OJ No 2766 — 300

Gunnersen v Henwood [2011] VSC 440;

BC201106864 — 194–95

Hamid v Lexus, 2011 WL 7074213 (Tex App —

Houston [1 Dist]) — 254–55

Henry Kendall & Sons v William Lillico & Sons Ltd;

Hardwick Game Farm v Suffolk Agricultural [1969]

2 AC 31; [1968] 2 All ER 444; [1968] 3 WLR 110;

[1968] 1 Lloyd’s Rep 547 — 268

HSD Co Pty Ltd v Masu Financial Management Pty

Ltd [2008] NSWSC 1279; BC200810786 — 195

J McIntyre Machinery Ltd v Nicastro US Supreme

Court, Case No 09-1343, 27 June 2011 — 159–61,

164–65, 173

Koh v S C Johnson & Son Inc, Case No 09-00927 (US

Dist Ct, ND Cal) — 175

Lym International Pty Ltd v Marcolongo [2011]

NSWCA 303; BC201107351 — 196

Martel Building Ltd v Canada [2000] 2 SCR 860 — 299


McGhee v National Coal Board [1973] SC 37; [1972]

3 All ER 1008; [1973] 1 WLR 1 — 265

Medtel Pty Ltd v Courtney (2003) 198 ALR 630;

(1991)ATPR41-939;[2003]FCAFC151;BC200303598 — 268

Medtronic, Inc, Sprint Fidelis Lead Wire, Re, MDL

No 1905 (DMinn) — 216

Medtronic, Inc, Sprint Fidelis Leads Products Liabil-

ity Litigation, Re, 623 F3d 1200 — 216

Merck Sharp & Dohme (Australia) Pty Ltd v Peterson

(2011) 196 FCR 145; 284 ALR 1; [2011] FCAFC 128;

BC201107861 — 233, 234–39, 264–65

Milward v Acuity Specialty Products Group, Inc, 639

F3d 11 (1st Cir 2011) — 297

Muskoka Fuels v Hassan Steel Fabricators Ltd, 2009

CanLII 63125 (ON SC) — 182–83

Muskoka Fuels v Hassan Steel Fabricators Ltd, 2011

ONCA 355 (CanLII) — 182–83

Nelson v Matrixx Initiatives, Inc, No C 09-02904 (ND

Cal May 18, 2012) — 288–90

Northern Securities Co v United States, 193 US 197

(1904) — 154

Ortiz v Fibreboard Corp; sub nom (1999) 527 US

815; 144 L Ed 2d 715; 119 S Ct 2295; 67 USLW

4632 — 216

Permanent Custodians Ltd v King [2010] NSWSC

509; BC201003359 — 195

Peterson v Merck Sharp & Dohme (Australia) Pty

Ltd (2010) 184 FCR 1; 266 ALR 1; 85 IPR 1; [2010]

FCA 180; BC201001051 — 233, 239

Peterson v Merck Sharp & Dohme (Australia) Pty

Ltd [2012] HCATrans 105 (11 May 2012) — 265

Petlack v S C Johnson & Son Inc, Case No 08-00820

(US Dist Ct, ED Wis) — 175

PLIVA, Inc v Mensing, Case No 09-993 (US Supreme

Court) — 171–72

PLIVA, Inc v Mensing, 131 SCt 2567 (2011) — 297

Propecia (Finasteride) Product Liability Litigation,

Re, MDL 2331 (EDNY) — 296

Rasell v Cavalier Marketing (Australia) Pty Ltd

[1991] 2 Qd R 323; (1990) 96 ALR 375; (1991) ASC56-036; (1991) ATPR 41-152 — 239, 268

Reinhold v New South Wales Lotteries Corporation

(No 2) [2008] NSWSC 187; BC200801327 — 195

Resurfice Corp v Hanke [2007] 1 SCR 333; [2007] 4WWR 1 — 265

Riegel v Medtronic, Inc, 552 US 312 (2008) — 216

Rogers v Parish (Scarborough) Ltd [1987] 1 QB933 — 268

Rowe v Grünenthal GmbH [2011] VSC 657;BC201110002 — 233

Saloman v Saloman & Co [1897] AC 22; [1895] AllER Rep 33; (1896) 66 LJ Ch 35; 75 LT 426 — 255

Schreiber Brothers Ltd v Currie Products Ltd, 1980CanLII 11 (SCC); [1980] 2 SCR 78 — 183

Seltsam v McGuinness (2000) 49 NSWLR 262; 19NSWCCR385; [2000]NSWCA29;BC200000735 — 235

St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR666; [2009] VSCA 245; BC200909697 — 194

TV Media Pte Ltd v De Cruz Andrea Heidi [2004] 3SLR(R) — 253

Ucak v Avante Developments [2007] NSWSC 367;BC200702721 — 194–95

Union Carbide Corp v Brown, Case No 2011-M-

00874 (Miss, order filed 13 July 2011) — 174

Webb v Nashville Area Habitat for Humanity Inc,Case No M2009-01552-SC-R11-CV (Tenn, decided21 July 2011) — 174

Winnipeg Condominium Corporation No 36 v Bird

Construction Co [1995] 1 SCR 85 — 299

World Trade Center Disaster Site Litigation, Re,SDNY, opinion of Judge Hellerstein 3/11/11 — 216

Wright v Ford Motor Co (2007) 508 F3d 263 (5thCir) — 254

Wyeth v Levine 555 US 555 (2009) — 172

Yates v Mobile Marine Repairs Pty Ltd [2007]NSWSC 1463; BC200710991 — 195

Zoloft (sertaline hydrochloride) Product Liability

Litigation, Re, MDL 2342 (EDPa) — 296


Table of statutesThis table lists alphabetically within each jurisdiction

all statutes appearing in volume 22 of the Australian

Product Liability Reporter.

Australia

CommonwealthAustralian Consumer Law (Sch 2 of the Competition

and Consumer Act 2010) — 184–89, 226, 232, 260–62,

268, 300

Pt 3-3 Div 2 — 268

s 2 — 188–89

s 3 — 189, 262

s 9 — 268

s 23 — 307

s 24 — 307

s 54(2) — 268

s 131(1) — 184–85

s 131(2) — 189

s 131(3) — 188

s 131(4) — 189

s 131(5) — 189

s 131(6) — 189

s 132A — 189

s 133 — 189

s 202 — 189

s 207 — 189

s 219 — 307

Australian Securities and Investments Commission Act

2001 — 194

Pt 2 — 263

s 12 ED(2) — 268

Competition and Consumer Act 2010 — 184, 233

Pt VIA — 263

s 157B — 200, 202

Sch 2 (Australian Consumer Law) — 184, 262,

268, 306

Competition and Consumer Regulations 2010 — 186

reg 90 — 226

reg 90(1)(a) — 226

reg 90(1)(b)(i) — 226

reg 90(1)(b)(ii) — 226

reg 90(1)(c) — 226

reg 90(1)(d)(i) — 226

reg 90(1)(d)(ii) — 226

reg 90(1)(d)(iii) — 226

reg 90(1)(d)(iv) — 226

reg 90(1)(e) — 226

reg 90(1)(f) — 226

reg 90(1)(g) — 226

reg 90(1)(h) — 226

reg 92 — 186

Corporations Act 2001 — 194

Pt 7.10 — 263

Federal Court of Australia Act 1976 — 201–02

Pt IVA — 230

s 33C — 233

s 33N — 233

National Consumer Credit Protection Act 2009 — 268

s 116 — 268

s 117 — 268

s 118 — 268

s 118(2) — 268

s 119 — 268

s 119(2) — 268

s 123 — 268

s 124 — 268

s 129 — 268

s 130 — 268

s 131 — 268

s 131(2) — 268

s 133 — 268

National Consumer Credit ProtectionAmendment (Enhance-

ments) Bill 2011 — 307

National Credit Code

s 72 — 268

s 74 — 268

Therapeutic Goods Act 1989 — 178–80, 237

Therapeutic Goods Regulations 1990 — 179–80

Pt 5A — 181

Sch 16 — 181

Tobacco Plain Packaging Bill 2011 — 154

Trade Practices Act 1974 — 194, 234–35, 261, 266

s 45 — 200

s 52 — 234

s 66(2) — 268

s 74B — 234, 237–38, 264

s 74D — 234, 237–38, 264

s 74D(3) — 238, 268

s 75AC — 238–39

s 75AD — 233, 234, 238

s 75AK(1)(c) — 234, 238

s 75B — 233

s 75D — 233

State and territory

Fair Trading Acts — 194, 261

Sale of Goods Acts — 261–62

Australian Capital Territory

Civil Law (Wrongs) Act 2002 No 40

Pt 2.5 — 263

Sale of Goods Act 1954 — 262


New South Wales

Civil Liability Act 2002

Pt 4 — 194–95, 262

s 3A — 263

s 3A(1) — 194

s 3A(2) — 196

s 34(1) — 194

s 34(1)(a) — 194

s 34(1A) — 194

s 34(2) — 194

s 34A — 194

s 35(1)(a) — 194–95

s 35(1)(b) — 195

s 35(3)(a) — 195

s 35A — 195

s 36 — 195

s 38(2) — 195

s 39 — 195

Compensation to Relatives Legislation Amendment (Dust

Diseases) Bill 2012 — 226

Law Reform (Miscellaneous Provisions) Act 1946

s 5 — 194


Northern Territory

Proportionate Liability Act 2005

Pt 2 — 262


Queensland


Pt 2 — 262–63

s 7 — 263


South Australia

Law Reform (Contributory Negligence and Apportion-

ment of Liability) Act 2001

Pt 3 — 263


Tasmania


Pt 9A — 262

s 3A — 263


Victoria

Goods Act 1958 — 262

Wrongs Act 1958 — 194

Pt IVAA — 262

Western AustraliaCivil Liability Act 2002

Pt 1F — 262

s 4A — 263


CanadaCanada Agricultural Products Act — 190

Competition Act RSC 1985, c C-34 — 299

s 52 — 299

Consumer Packaging and Labelling Act — 190

Consumer Packaging and Labelling Regulations — 190

Consumer ProductWarranty and LiabilityAct 1978 — 306

Consumer Protection Act 1996 — 306

Customs Act — 190

Export and Import Permits Act — 190

Farm Products Grades and Sales Act — 190

Fish Health Protection Regulations — 190

Food and Drugs Act — 190

Food and Drugs Regulations — 190

Fresh Fruit and Vegetable Regulations — 190

Nutritional Labelling Regulations — 190

Processed Products Regulations — 190

Sale of Goods Act (Ontario) — 182–83

s 15(2) — 183

European UnionConsumer Alternative Dispute Resolution Directive 2009/

22/EC — 285

E-commerce Directive — 281

General Product Safety Directive 2011/95/EC — 167,

169

Lifts Directive — 166

Machinery Directive — 166

Medical Devices Directive — 166

Product Liability Directive 85/374/EEC — 204–06,

207, 209, 219

Art 4 — 204

Art 7(d) — 205

Art 7(e) — 205

Art 9 — 205

Art 13 — 204

Art 21 — 204

Regulation (EC) No 339/93 — 166

Regulation (EC) No 765/2008 — 166, 169, 272–73

Arts 27–29 — 272–73

Art 27 s 2 — 272

Art 28 — 273

Art 28 s 1 — 273

Ch III — 272

Regulation(EC)No864/2007(RomeIIRegulation) — 159–60

Art 5 — 159–61

Art 5(1) — 160


Art 5(1)(c) — 159–60

Art 23 — 161

Regulation (EC) No 2006/2004 — 285

Toy Safety Directive 88/378/EEC — 197–98

Toy Safety Directive 2009/48/EC — 197–98

Annex I — 197

Annex II — 197–98

Toys Directive — 166

GermanyAppliance and Product Safety Act — 166

Civil Code

s 280(1) — 256

s 439(2) — 256

s 478(2) — 256

s 823(1) — 256

Code of Civil Procedure

s 114 — 256

Consumer Information Act — 217

Consumer Protection Act — 217–18

Product Liability Act — 166–67, 257

Art 1.2(2) — 219–20

Art 1.2(5) — 219

Art 1.4 — 219

Art 3.1 — 219

s 1 — 257

s 4(1) — 257

s 4(2) — 257

Product Safety Act — 166–67, 217

s 6(4) — 217–18

HollandCivil Code

Art 6:2 — 221

Art 6:248 — 221

ItalyCivil Code

Art 1223 — 224–25

Consumers Code, Legislative Decree No 206/2005

s 140 — 162–63

New ZealandAlcohol Law Reform Bill 2010 — 309

Alcohol Reform Bill 2010 — 306

Auctioneers Act 1928 — 302

Building Act 1991 — 305

Building Act 2004 — 305

s 396 — 308

s 397 — 308

Carriage of Goods Act 1979 — 307

Consumer Guarantees Act 1993 — 240, 268, 307

Consumer Law Reform Bill 2011 — 240–42, 307

cl 5 — 303

cl 9 — 307

cl 14 — 307

cl 14(1A) — 307

cl 15 — 307

cl 18 — 307

cl 21 — 307

cl 35 — 307

cl 36 — 307

cl 39 — 307

cl 40 — 307

cl 66 — 307

cl 67 — 307

Credit Contracts Act 1981 — 301

Credit Contracts and Consumer FinanceAct 2003 — 301

s 7(2) — 306

s 11 — 306

ss 41–44 — 306

ss 55–59 — 306

ss 117–131 — 306

Sch 1 — 306

Credit Contracts and Consumer Finance Amendment

Bill (draft) — 302

cl 9B(2)(b) — 307

cl 9B(2)(c) — 307

cl 9B(2)(e) — 307

cl 9B(2)(f) — 307

Dietary Supplements Regulations 1985 — 308

Disputes Tribunal Act 1988 — 306

Door to Door Sales Act 1967 — 301

Fair Trading Act 1986 — 240, 242, 301

s 9 — 303

s 13 — 303

s 31 — 307

s 36K — 307

s 36U — 307

Financial Advisors Act 2008 — 304

s 33 — 308

Financial Advisors (Disclosure) Regulations 2010

Sch 1 — 308

Financial Markets Authority Act 2011 — 304

s 8 — 308

s 9 — 308

Financial Markets Conduct Bill — 304

cl 3 — 308

Financial Service Providers (Registration and Dispute

Resolution) Act 2008 — 304

Financial Services Act 2008

s 3 — 308

Gambling Act 2003 — 308

s 3 — 308

s 310 — 308

Gambling (Gambling Harm Reduction) Bill 2010 — 305

cl 8 — 305


Hire Purchase Act 1971 — 302

KiwiSaver Act 2006 — 308

s 9 — 308

s 16 — 308

Layby Sales Act 1971 — 301

Medicines Act 1981 — 305

Natural Health Products Bill 2011 — 308

cl 4 — 308


Sale of Liquor Act 1989 — 306

Secondhand Dealers and PawnbrokersAct 2004 — 307

Securities Act 1978 — 308

Securities Markets Act 1988 — 308

Smoke-free Environments Act 1990 — 306

Smoke-free Environments (Controls and Enforcement)

Amendment Bill 2010 — 308

Superannuation Schemes Act 1989 — 308

Therapeutics Products and Medicines Bill 2006 — 305

Unit Trusts Act 1960 — 308

Unsolicited Goods and Services Act 1975 — 301

Weathertight Homes Resolution ServicesAct 2002 — 308

Weathertight Homes Resolution ServicesAct 2006 — 305

Weights and Measures Act 1987 — 305

SingaporeConsumerProtection(FairTrading)Act(Cap52A) — 249–50

Pt III — 252

s 4 — 250

s 6 — 250

Sch 2 — 250

Consumer Protection (Fair Trading) Amendment Bill

(Amendment Bill) — 252–53

Consumer Protection (Safety Requirements) Regula-

tions (Cap 53, Regulation 1) — 250

Consumer Protection (Trade Descriptions and Safety

Requirements) Act (Cap 53) — 250

s 4 — 250

Health Products Act (Cap 122D) — 250–51

s 42 — 250

s 44 — 251

s 49 — 251

Hire-Purchase Act (Cap 125) — 253

Misrepresentation Act (Cap 93) — 250

Road Traffic Act (Cap 276) — 253

Rules of Court

O 15 r 12 — 252

Sale of Goods Act (Cap 393) — 249

s 14 — 249, 252

s 14(2) — 249, 253

s 14(2)(c) — 253

Supply of Goods Act (Cap 394) — 249

s 4(3) — 249

Unfair Contract Terms Act (Cap 396) — 249

s 2 — 249

s 6 — 249

Sch 2 — 249

Wholesome Meat and Fish (Processing Establishment

and Cold Stores) Rules (Cap 349A, Rule 3) — 250–51

r 9(3) — 251

United KingdomConsumer Protection Act 1987 — 207, 209

Fair Trading Act 1973 — 307


s 14(6) — 268

Sale of Goods (Amendment) Act 1994 — 268

s 14(2A) — 268

s 14(2B) — 268

Supply of Extended Warranties on Domestic Goods

Order 2005 — 307

Supply of Goods (Implied Terms) Act 1973

s 7 — 268

Toys (Safety) Regulations 1995 — 197

Toys (Safety) Regulations 2011 — 197–99

Pt 2 — 198

reg 4 — 197

reg 5 — 197

reg 5(2) — 197

reg 5(3) — 197

reg 5(4) — 197

reg 5(5) — 197

reg 11 — 198

reg 12 — 198

reg 15 — 198

reg 17 — 198

reg 17(5) — 198

reg 18 — 198

reg 20 — 198

reg 20(7) — 198

reg 20(9) — 198

reg 23 — 198

reg 32 — 198

reg 37 — 198

Unfair Contract Terms Act 1977 — 249

UnfairTermsinConsumerContractsRegulations1999 — 307

United StatesAirTransportationSafetyandSystemStabilizationAct — 214

Consumer Product Safety Act — 189

Drug Price Competition and Patents Restoration Act of

1984 — 171

Federal Food, Drug and Cosmetic Act — 171

Federal Rules of Civil Procedure

r 8(a)(2) — 288

r 12(b)(6) — 288–90

r 23 — 215


r 23(b) — 233

Notice Pleading Restoration Act of 2009

s 1504 — 290

OccupationalSafetyandHealthAdministrationAct — 291–92

United States Code

21 USC § 1407 — 216

21 USC § 1407(a) — 296

49 USC § 40101 — 216


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