Misleading Silence

Misleading Silence Book Cover
Obligations Group Lecture (via Zoom)

Presented by Professor Elise Bant, Professor of Private Law and Commercial Regulation, The University of Western Australia and Professorial Fellow, The University of Melbourne and Professor Jeannie Paterson, Professor of Law, Melbourne Law School and Co-Director, Centre for AI and Digital Ethics, The University of Melbourne

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Recurrent efforts by courts and parliaments to prohibit, prevent and remedy misleading conduct at common law, in equity and under statute have led to a veritable ‘porridge’ of overlapping rules, doctrines and standards.  Predictably, this has severely undermined the efficient and just operation of the law.  It seems clear that any attempt to distill some degree of order from this chaos must start by developing a map or taxonomy of the current law.  In that context, the question of how (if ever) silence may mislead provides a surprisingly sharp analytical starting point.

This seminar will explain how the enquiry has enabled Professors Bant and Paterson to grapple with foundational issues such as the normative salience of failing to act, the nature of decision causation, and the role of legal norms and community expectations in assessing the effect of utterances, conduct and silence.  It has highlighted the highly formal(istic) boundaries that underpin the traditional legal approaches to regulating misleading conduct and invites more nuanced and substantive development of the more broadly familiar principles that operate in the clear spaces of active misconduct.  Through this engagement, a number of key themes have emerged.  These insights make it possible to trace, for the first time, the outlines of a coherent law of misleading conduct.

Elise Bant

Elise Bant is Professor of Private Law and Commercial Regulation at the University of Western Australia and a Professorial Fellow at the University of Melbourne. Elise is a former co-convenor (with Professor Andrew Robertson) of the Obligations Group at MLS and a Fellow of the Australian Academy of Law. Her main areas of teaching and research interests lie in the fields of unjust enrichment and restitution law, property, contract and consumer law, civil remedies, equity and trusts.

Elise is author of The Change of Position Defence (Hart Publishing, Oxford 2009) and co-author (with Justice James Edelman) of Unjust Enrichment (Hart Publishing, Oxford, 2016), editor of a number of collections of essays, co-author of a leading Australian casebook on Remedies and has published over 70 articles, chapters and other scholarly works in her specialist fields. She is also a general editor of the Journal of Equity with Professor Simone Degeling (UNSW) and Professor Matthew Harding (MLS).

Elise is currently working on Australian Research Council grant research with Professor Jeannie Paterson, which examines the regulation of misleading conduct at common law, in equity and under statute (DP 180100932). Elise has also been awarded a Future Fellowship to examine corporate liability for serious civil misconduct, including fraud and predatory trading practices (FT 190100475), commencing in May 2020.

Jeannie Paterson

Jeannie Paterson specialises in the areas of contracts, consumer rights and consumer credit law, as well as the role of new technologies in these fields. Jeannie is the co-author (with Andrew Robertson) of Principles of Contract Law (6th ed, 2020), the author of Corones’ Australian Consumer Law (2019) and the co-author (with Hal Bolitho and Nicola Howe) of Duggan and Lanyon on Consumer Credit Law (forthcoming 2019), as well as numerous journal articles on these topics.

Jeannie is Professor of Law at Melbourne Law School and the Co-Director of the Centre for AI and Digital Ethics, a new collaborative, interdisciplinary research, teaching and policy centre at the University of Melbourne involving the faculties of Computing and Information Systems, Law, Arts and Science and co-leader of the Digital Ethics research stream at the Melbourne Social Equity Institute, an interdisciplinary research institute focused on social equity and community led research.