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Year 2000 Information Disclosure Bill 1999

Part 3 Protection from civil liability

   

10   Protection from civil actions

             (1)  No civil action lies against a person for or in relation to any matter or thing arising out of, or incidental to, the making of a Year 2000 disclosure statement.

             (2)  A Year 2000 disclosure statement is not admissible as evidence against a person in a civil action to which the person is a party.

11   Exceptions

False statements and pre-contractual statements

             (1)  The rules in section 10 do not apply to a person (the first person ) if:

                     (a)  the Year 2000 disclosure statement is false or misleading in a material particular and the first person:

                              (i)  knew that the statement was false or misleading in a material particular; or

                             (ii)  was reckless as to whether the statement was false or misleading in a material particular; or

                     (b)  all of the following conditions are satisfied:

                              (i)  the Year 2000 disclosure statement was made to another person (otherwise than in the other person’s capacity as a member of the public or of a section of the public) in connection with the formation of a contract;

                             (ii)  the other person, or a representative of the other person, is a party to the civil action;

                            (iii)  the civil action relates to the contract.

Statements made in fulfilment of an obligation

             (2)  The rules in section 10 do not apply to a Year 2000 disclosure statement if:

                     (a)  the Year 2000 disclosure statement was made in fulfilment of an obligation imposed under a contract; or

                     (b)  the Year 2000 disclosure statement was made in fulfilment of an obligation imposed under a law of the Commonwealth, a State or a Territory.

Statements made to induce consumers to acquire goods or services

             (3)  The rules in section 10 do not apply to a civil action if:

                     (a)  all of the following conditions are satisfied:

                              (i)  the Year 2000 disclosure statement was made for the sole or dominant purpose of inducing persons to acquire goods or services identified in the statement;

                             (ii)  any of those persons acquired the goods or services as a consumer;

                            (iii)  the consumer concerned, or a representative of the consumer concerned, is a party to the civil action;

                            (iv)  the civil action relates to the goods or services acquired by the consumer; or

                     (b)  all of the following conditions are satisfied:

                              (i)  the Year 2000 disclosure statement was made for the sole or dominant purpose of inducing a particular consumer to acquire goods or services identified in the statement;

                             (ii)  the consumer acquired the goods or services;

                            (iii)  the consumer, or a representative of the consumer, is a party to the civil action;

                            (iv)  the civil action relates to the goods or services acquired by the consumer.

Note:          For the definition of consumer , see subsections (6), (7) and (8).

Injunctions, declarations, regulatory or enforcement proceedings, intellectual property rights

             (4)  The rules in section 10 do not apply to a civil action to the extent to which:

                     (a)  the civil action consists of proceedings for a restraining injunction or for declaratory relief; or

                     (b)  the civil action consists of proceedings instituted by a person or body under a law of the Commonwealth, a State or a Territory:

                              (i)  in the performance of a regulatory or enforcement function conferred on the person or body by such a law; or

                             (ii)  in the exercise of a regulatory or enforcement power conferred on the person or body by such a law; or

                     (c)  the civil action is an action for infringement of copyright, a trade mark, a design or a patent.

Paragraphs not limited

             (5)  The paragraphs of subsections (1), (2), (3) and (4) do not limit each other.

Consumers—goods and non-financial services

             (6)  Section 4B of the Trade Practices Act 1974 applies for the purposes of paragraphs (3)(a) and (b) of this section in a corresponding way to the way in which it applies for the purposes of the Trade Practices Act 1974 .

             (7)  For the purposes of subsection (6), it is to be assumed that a reference in section 4B of the Trade Practices Act 1974 to services does not include a reference to financial services (within the meaning of that Act).

Consumers—financial services

             (8)  Section 12BC of the Australian Securities and Investments Commission Act 1989 applies for the purposes of paragraphs (3)(a) and (b) of this section in a corresponding way to the way in which it applies for the purposes of Division 2 of Part 2 of that Act.

12   Provisions to attract Commonwealth legislative power

             (1)  The rules in section 10 do not apply to a person (the first person ) unless:

                     (a)  the first person is:

                              (i)  a constitutional corporation; or

                             (ii)  the Commonwealth; or

                            (iii)  an authority of the Commonwealth; or

                     (b)  the Year 2000 disclosure statement is an original Year 2000 disclosure statement that was authorised by:

                              (i)  a constitutional corporation; or

                             (ii)  the Commonwealth; or

                            (iii)  an authority of the Commonwealth; or

                     (c)  all of the following conditions are satisfied:

                              (i)  the Year 2000 disclosure statement is a republished Year 2000 disclosure statement that relates to an original Year 2000 disclosure statement;

                             (ii)  the original Year 2000 disclosure statement was authorised by a constitutional corporation;

                            (iii)  the making of the republished Year 2000 disclosure statement has significance for the activities, functions, relationships, reputation or business of the constitutional corporation; or

                     (d)  all of the following conditions are satisfied:

                              (i)  the Year 2000 disclosure statement is a republished Year 2000 disclosure statement that relates to an original Year 2000 disclosure statement;

                             (ii)  the original Year 2000 disclosure statement was authorised by the Commonwealth or an authority of the Commonwealth;

                            (iii)  the making of the republished Year 2000 disclosure statement has significance for the activities, functions or relationships of the Commonwealth or the authority of the Commonwealth, as the case may be; or

                     (e)  the Year 2000 disclosure statement was made in a Territory; or

                      (f)  the Year 2000 disclosure statement was made in the course of, or in relation to, trade or commerce:

                              (i)  between Australia and places outside Australia; or

                             (ii)  among the States; or

                            (iii)  within a Territory, between a State and a Territory or between 2 Territories; or

                            (iv)  by way of the supply of goods or services to the Commonwealth or an authority of the Commonwealth; or

                     (g)  the Year 2000 disclosure statement was:

                              (i)  sent by post or other like service; or

                             (ii)  made by way of an electronic communication of writing; or

                     (h)  the civil action is an action under a law of the Commonwealth or of a Territory; or

                      (i)  all of the following conditions are satisfied:

                              (i)  a constitutional corporation, the Commonwealth or an authority of the Commonwealth is a party to the civil action;

                             (ii)  that party has made a claim in the civil action;

                            (iii)  the grounds for that party’s claim are based on the Year 2000 disclosure statement.

             (2)  In this section:

State includes a prescribed self-governing Territory.

Territory does not include a prescribed self-governing Territory.

13   False or misleading statement exception—explanatory statement to be given

             (1)  If a civil action is instituted against a person (the first person ) by another person (the second person ), the first person is not entitled to plead or otherwise rely on the rule in subsection 10(1) unless:

                     (a)  the first person gives the second person a statement (the explanatory statement ) to the effect that the first person believes that the exception set out in paragraph 11(1)(a) is not applicable; and

                     (b)  the explanatory statement sets out the grounds for that belief; and

                     (c)  the explanatory statement satisfies one of the following conditions:

                              (i)  the explanatory statement is made in writing;

                             (ii)  the explanatory statement is made in a data storage device and is capable of being reproduced in writing from that device (with or without the aid of any other article or device);

                            (iii)  the explanatory statement is made by way of an electronic communication of writing.

             (2)  If the first person gives the second person an explanatory statement as mentioned in subsection (1), the explanatory statement is not admissible in any civil action except for the purposes of determining whether subsection (1) has been complied with.

             (3)  The second person may waive compliance with subsection (1).

14   False or misleading statement exception—imputed knowledge

Corporations

             (1)  If, in any proceedings arising out of paragraph 11(1)(a), it is necessary to establish:

                     (a)  whether a corporation knew that a Year 2000 disclosure statement was false or misleading in a material particular; or

                     (b)  whether a corporation was reckless as to whether a Year 2000 disclosure statement was false or misleading in a material particular;

it is sufficient to show that:

                     (c)  a director, employee or agent of the corporation engaged in conduct in relation to the Year 2000 disclosure statement; and

                     (d)  the director, employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and

                     (e)  the director, employee or agent:

                              (i)  knew that the Year 2000 disclosure statement was false or misleading in a material particular; or

                             (ii)  was reckless as to whether the Year 2000 disclosure statement was false or misleading in a material particular;

                            as the case may be.

Persons other than corporations

             (2)  If, in any proceedings arising out of paragraph 11(1)(a), it is necessary to establish:

                     (a)  whether a person other than a corporation knew that a Year 2000 disclosure statement was false or misleading in a material particular; or

                     (b)  whether a person other than a corporation was reckless as to whether a Year 2000 disclosure statement was false or misleading in a material particular;

it is sufficient to show that:

                     (c)  an employee or agent of the person engaged in conduct in relation to the Year 2000 disclosure statement; and

                     (d)  the employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and

                     (e)  the employee or agent:

                              (i)  knew that the Year 2000 disclosure statement was false or misleading in a material particular; or

                             (ii)  was reckless as to whether the Year 2000 disclosure statement was false or misleading in a material particular;

                            as the case may be.

Definition

             (3)  A reference in this section to a director includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.