I recently caught up with John Walsh, one of our dedicated and enthusiastic Gault on Commercial Law authors, and senior lecturer in the Department of Accounting and Finance at the University of Canterbury. John teaches both undergraduate and postgraduate courses including, Business Law, Company Law, Trustee Law and Insolvency and Trade Practices Law.

His main interest is in Fair Trading. As part of his involvement as an author for Gault, he has written commentary for the Fair Trading Act 1986; sections 1-9 and 14-50, as well as the new 2010 introduction for the Act, and has been an updating author for the entire Act since 1994.

1. As a dedicated university lecturer, how do you balance your teaching with your author work?
I don’t see any need to balance teaching with writing; both activities have the same requirements. They require reading, analysing and evaluating primary sources, statutes and cases, to generate a series of general principles, and then the communication of those principles by structuring them in a way which both places them in context and makes them as easy as possible to understand.

2. How has authoring works such as Gault enhanced/changed your teaching?
My teaching has been enhanced not only because Gault authorship requires me to read and analyse hundreds of cases, but because it also provides an independent benchmark for the accuracy of that analysis. It is a little-recognised but very important function of students to educate their lecturers, and my 8,000 or so students over the years have done a wonderful job, given the quality of the class, in educating me.

However, students are not the best group to test the accuracy of legal analysis. The popularity of the “Fair Trading Act” section of Gault with purchasers and users, and the fact that my Thomson Reuters commentaries have been cited, approved and applied over 60 times in Court of Appeal, High Court, District Court and Administrative Tribunal decisions, provides some evidence that the analysis provided both in Gault and in the lectures is correct.

3. What is one key piece of advice you give your students when learning the law?
I advise my students to lessen their dependence on the photocopier, the highlighter and the World Wide Web, and to prepare their own summaries of the material. These can be either conventional or the very effective Tony Buzan Mind Maps.

4. In your opinion, what is one of the more influential commercial cases to date?
I wouldn’t comment on commercial cases generally, but one of the most influential in my area is Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592; 212 ALR 357; 79 ALJR 308.

5. How do you believe this case has helped to shape commercial law?
The case shaped fair trading law in both Australia and New Zealand. In a 3-2 majority verdict, the High Court of Australia expanded the judicially-created “mere conduit” defence and allowed a small-print disclaimer to help defeat the claims of the plaintiffs under the Australian Trade Practices Act 1974 (Cth). Justice Kirby, one of the dissenters, said, in a sadly prophetic para [172];

“If, in a transaction such as was entered into between the parties, liability under the Act may be escaped in circumstances such as these (and particularly by reliance on a printed disclaimer of the kind involved in this case) this Court might just as well fold up the Act and put it away so far as dealings between real estate agents and purchasers are concerned.”

Fortunately, the expansion of the “mere conduit” defence in New Zealand would appear to have been checked by the Supreme Court in Red Eagle Corporation Ltd v Ellis [2010] NZSC 20; the Court allowed the appeal, referring to “the Court of Appeal’s alternative and unsustainable finding that Mr Ellis was a mere conduit”.

6. What changes to commercial law do you foresee occurring in the near future?
I am not in the “crystal ball” business; as one of Joe Orton’s characters memorably remarks, “I’m not a gambling man. I’ve seen the sorrow it brings.”

In a speech to the Employers and Manufacturers’ Association Northern Members Policy Forum on 1 March 2010, the Hon Heather Roy provided additional information on the Government’s “One Law – One Door” initiative. As the New Zealand Minister of Consumer Affairs, she is a member of the Ministerial Council on Consumer Affairs (MCCA). That Council, which consists of all Australian Commonwealth, State, Territory and New Zealand Ministers responsible for fair trading, consumer protection laws and credit laws, aims to “consider consumer affairs and fair trading matters of national significance and, where possible, develop a consistent approach to those issues”.

The “One Law” part of the initiative consists of the consolidation of much of the current consumer protection legislation covering unfair commercial practices, selling and duress, product safety, information to assist consumer decision making and trader obligations into one strong piece of law, in essence an enhanced Fair Trading Act. Whether that piece of law, to further the “consistent approach to those issues” which is one of the aims of the MCCA, would include the changes proposed by the Australian Labor Government in the Trade Practices Amendment (Australian Consumer Law) Bill 2009, has not been announced. The Australian Trade Practices Act 1974 (Cth) already has an “unconscionable conduct” provision not found in the New Zealand Act. The Bill includes a prohibition of unfair contract terms in standard form consumer contracts, new civil pecuniary penalties of up to A$1.1m for corporations and A$220,000 for individuals, and the introduction of disqualification orders prohibiting individuals from involvement in the management of corporations. It also gives new powers to both the ACCC and ASIC; to issue infringement notices with penalties of up to A$6,600 without requiring court proceedings, to issue substantiation notices requiring a supplier to provide information to substantiate a representation, and to issue public warning notices without a court order to inform the public of potentially harmful conduct. The attainment of consistency with Australian law in this area would obviously require considerably increased regulation of business, not an activity traditionally associated with an ACT Member of Parliament.