High Court declines opportunity to consider "contracting out" misleading and deceptive conduct under Australian Consumer Law; hears important case on proportionate liability and arbitrations

On 9 November 2023, the High Court of Australia dismissed Viterra Malt Pty Ltd's Special Leave application in relation to proceedings decided against them by the Victorian Court of Appeal in Viterra Malt Pty Ltd v Cargill Australia Limited [2023] VSCA 157.

The Victorian Court of Appeal's decision cast doubt on the effectiveness of relying on disclaimers to avoid liability for engaging in misleading or deceptive conduct, in contravention of section 18 of the Australian Consumer Law, during an acquisition. Similar considerations come into play in other contexts, including tendering processes for construction contracts.

As is usual in dismissing such applications for appeal, the High Court gave no specific detail about the reasons for the dismissal, beyond the formulaic indication that the application did not raise an issue of sufficient importance or have sufficient prospects of success (see [2023] HCASL 165). In the absence of such further guidance, the Court of Appeal decision stands as an important reminder of the need to carefully and holistically consider contracting strategies in the shadow of the ACL.

The following week, on 15 November, the Full Bench of the High Court heard the appeal in Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2023] HCATrans 160. As we noted when Special Leave to appeal was granted, the case offered the Court the opportunity to consider the interaction of state-based proportionate liability schemes with arbitration processes. While little should be read into the Court's intentions from the exchanges between counsel and the Bench, the transcript reveals that those exchanges were wide-ranging and details, offering the prospect of an important ruling in due course.

Key takeaway: Parties entering construction contracts or engaging in bidding and tendering processes should consider Viterra Malt as a reminder to carefully and clearly document their agreement as to what information may or may not be relied upon (and the extent and nature of that reliance). Meanwhile, we will watch with interest for the High Court's ruling on proportionate liability and arbitration in Tesseract.