It has long been common practice to plead s52 as an alternative cause of action in cases involving tort or contract claims as well as in cases involving breaches of statutory or fiduciary duty and in many other areas. There may often by remedial, procedural, evidentiary or jurisdictional benefits in so doing. All too often, however, some of the elements or other prerequisites of a successful s52 claim are overlooked. These may be fatal or at least difficult to cure and may cause unnecessary distraction, cost and delay. It is worth having a checklist which would include the elementary as well as the more arcane items that may need to be addressed.
Ian Tonking was a commercial partner in the Sydney firm of Allen Allen & Hemsley for 17 years. He undertook at broad range of work involving commercial transactions, mining joint ventures and general advice. He developed an early specialty in trade practices law, which continued after he joined the NSW Bar in 1995. He practises in the areas of commercial law and equity as well as competition law and administrative law. He has been a consultant editor to and writer for the CCH Australian Trade Practices Reporter since about 1980. He was appointed Senior Counsel in 2007.