Misleading conduct by multiple parties and proportionate liability

The application and interpretation of proportionate liability rules continues to create uncertainty. Those rules have been introduced in all Australian states and territories, as well as under Commonwealth jurisdiction. This article focuses on one specific issue that has troubled courts. How does proportionate liability apply where a plaintiff brings an action for loss caused by misleading conduct engaged in by multiple defendants? Not uncommonly, multiple parties might be responsible for, or participate in, misleading conduct that contravenes s 18 of the ACL (or equivalent sections) in a variety of ways. This article considers the difficult legal questions that arise in such scenarios, a number of which questions remain unresolved. The answers to those questions may depend on the jurisdiction in which those questions arise, since there are critical differences in law between the different jurisdictions. This article concludes that where defendants are jointly liable for the same conduct, other than vicariously so, proportionate liability applies, at least in most jurisdictions, and despite some decisions to the contrary.