The (almost) redundant civil accessorial liability provisions of the Trade Practices Act

The Trade Practices Act 1974 (Cth) imposes civil accessorial liability on parties "involved in the contravention" of parts of the Act, defined in s 75B . Litigation and commentary on this section shows that it is difficult to prove accessorial liability and many claims have failed. This is because, problematically, the scheme of accessorial liability adopted means that an accessory must be shown to have actual knowledge of the misleading or deceptive nature of the principal's conduct. Yet, in most circumstances in which, historically, the accessory provisions have been relied upon, it is not necessary to establish accessorial liability at all. Instead, it is easier to pursue claims against natural persons for direct contravention of State Fair Trading Act provisions. This conclusion is supported by the recent High Court decision in Houghton v Arms .