Careful with your catch-all pleadings

The High Court handed down its decision in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31 earlier today.

The judgment of French CJ and Kiefel J contains a particularly elegant little warning against the lazy litigator's traditional fallback of pleading breach of the TPA (at [5]):

The cause of action for contravention of statutory prohibitions against conduct in trade or commerce that is misleading or deceptive or is likely to mislead or deceive has become a staple of civil litigation in Australian courts at all levels. Its frequent invocation, in cases to which it is applicable, reflects its simplicity relative to the torts of negligence, deceit and passing off. Its pleading, however, requires consideration of the words of the relevant statute and their judicial exposition since the cause of action first entered Australian law in 1974. It requires a clear identification of the conduct said to be misleading or deceptive. Where silence or non-disclosure is relied upon, the pleading should identify whether it is alleged of itself to be, in the circumstances of the case, misleading or deceptive conduct or whether it is an element of conduct, including other acts or omissions, said to be misleading or deceptive.

For authoritative commentary regarding statutory liability for misleading and deceptive conduct in a corporations context, subscribers are referred to [22.450] of Ford's Principles of Corporations Law.