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UBC Theses and Dissertations
Matter or mirage? : The public policy rationale for section 9 of the fair trading act 1986 (N.Z.) Hall, Christopher Brian
Abstract
The two main points of this thesis are; first, that section 9 of the Fair Trading Act 1986 (New Zealand) has a particular public policy rationale; and, secondly, that, because of drafting inadequacies and of improper approach by the courts, that rationale is not being properly advanced. The first of the writer's theses is that the Act is inadequately drafted. The public policy rationale is identified and seen to be four-fold. The two principal elements are; one, to advance efficiency in the marketplace; and, two, protect consumers, especially those who are less able to protect themselves from the effects of misleading or deceptive conduct. It is determined that efficiency and consumer protection are not always consistent goals but that they are in this particular context of provision of information. It is seen that there are at least three deficiencies in the Act that inhibit promotion of those two limbs of the policy rationale. The writer's second thesis is that the courts have failed to recognise and give effect to the policy rationale for section 9 and have, instead, imported principles developed under the tort of passing off. The public policy rationale for passing off is examined. It is concluded that it primarily owes both its existence and its scope to the interests of traders. The approach of the courts in New Zealand, and those in Australia under their virtually identical section 52 of the Trade Practices Act, is examined and it is seen that passing off principles are imported in at least five areas. The practical effects of the deficiencies in the legislation and in the approach of the courts are identified by a law and economics analysis and by considering nine possible variations of a hypothetical fact example. The result is confirmation that the drafting inadequacies and the approach of the courts together cause reduction of efficiency and disadvantaging of consumers.
Item Metadata
Title |
Matter or mirage? : The public policy rationale for section 9 of the fair trading act 1986 (N.Z.)
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Creator | |
Publisher |
University of British Columbia
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Date Issued |
1995
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Description |
The two main points of this thesis are; first, that section 9 of the Fair Trading Act 1986
(New Zealand) has a particular public policy rationale; and, secondly, that, because of
drafting inadequacies and of improper approach by the courts, that rationale is not being
properly advanced.
The first of the writer's theses is that the Act is inadequately drafted. The public policy
rationale is identified and seen to be four-fold. The two principal elements are; one, to
advance efficiency in the marketplace; and, two, protect consumers, especially those who
are less able to protect themselves from the effects of misleading or deceptive conduct.
It is determined that efficiency and consumer protection are not always consistent goals
but that they are in this particular context of provision of information. It is seen that
there are at least three deficiencies in the Act that inhibit promotion of those two limbs
of the policy rationale.
The writer's second thesis is that the courts have failed to recognise and give effect to
the policy rationale for section 9 and have, instead, imported principles developed under
the tort of passing off. The public policy rationale for passing off is examined. It is
concluded that it primarily owes both its existence and its scope to the interests of
traders. The approach of the courts in New Zealand, and those in Australia under their
virtually identical section 52 of the Trade Practices Act, is examined and it is seen that
passing off principles are imported in at least five areas.
The practical effects of the deficiencies in the legislation and in the approach of the
courts are identified by a law and economics analysis and by considering nine possible
variations of a hypothetical fact example. The result is confirmation that the drafting
inadequacies and the approach of the courts together cause reduction of efficiency and
disadvantaging of consumers.
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Extent |
7706530 bytes
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Genre | |
Type | |
File Format |
application/pdf
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Language |
eng
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Date Available |
2009-01-10
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Provider |
Vancouver : University of British Columbia Library
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Rights |
For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use.
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DOI |
10.14288/1.0077509
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URI | |
Degree | |
Program | |
Affiliation | |
Degree Grantor |
University of British Columbia
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Graduation Date |
1995-05
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Campus | |
Scholarly Level |
Graduate
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Aggregated Source Repository |
DSpace
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Item Media
Item Citations and Data
Rights
For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use.