Final version   monash research seminar series 24.05.10
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'Unconscionable Conduct and Good Faith in the Small Business, Leasing, and Franchising Sectors - The Way Ahead' - Presentation by Professor Bryan Horrigan for Monash University Law Faculty's......

'Unconscionable Conduct and Good Faith in the Small Business, Leasing, and Franchising Sectors - The Way Ahead' - Presentation by Professor Bryan Horrigan for Monash University Law Faculty's research seminar series on 24 May 2010

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  • 1. ‘Unconscionable Conduct and Good Faith in the Small Business, Leasing, and Franchising Sectors – The Way Ahead’
    Professor Bryan Horrigan
    Report Co-Author, Strengthening Statutory Unconscionable Conduct and the Franchising Code of Conduct, Australian Treasury, 2010
    Louis Waller Chair of Law, Monash Law Faculty
    Associate Dean (Research), Monash Law Faculty
    Consultant, Allens Arthur Robinson
    Author, Corporate Social Responsibility in the 21st Century (Edward Elgar, 2010)
  • 2. Overview
    Lead-up to the Panel’s inquiry and appointment
    Focus and conduct of inquiry
    Outcomes of inquiry
    Government’s response
    Flow-on regulatory impact and work
    Lessons for lawyers
    Caveats up front
  • 3. Terms of Reference
    Clarifying role v ‘clean slate’ review of statutory unconscionable conduct (ie unfinished business from previous governmental inquiries)
    Whether ‘a statement of principles concerning unconscionable conduct’ or ‘a list of examples that all parties agree constitute unconscionable conduct’ should be included in the TPA
    Whether Franchising Code of Conduct needs anything more to address five identified and potentially problematic franchising behaviours
  • 4. Unconscionability Relates to …
    Various equitable (and some common law) causes of action and bases for relief
    Statutory unconscionability under Trade Practices Act
    Statutory unconscionability under Fair Trading Acts
    Statutory unconscionability in financial services under ASIC Act
    Unconscionable financial services licensee conduct under Corporations Act
    Unjust contracts laws (eg some Fair Trading Acts, NSW Contracts Review Act)
    Related consumer credit laws
    Industry codes (eg Banking/Franchising Codes)
    State retail/commercial leasing laws
  • 5. Three Basic Forms of Statutory Unconscionability
    General prohibition on unconscionable conduct by corporations:
    • TPA s 51AA (in trade practices generally)
    • 6. ASICA s 12CA (in financial services)
    • 7. Corporations Act s 991A (financial services licencees)
    Unconscionable conduct in retail/personal/consumer contexts:
    • TPA s 51AB
    • 8. ASICA s 12CB
    • 9. Consumer Credit Code / Contracts Review Act (NSW)
    Unconscionable conduct in big/small business contexts:
    • TPA s 51AC
    • 10. ASICA s 12CC
    • 11. Some Fair Trading Acts
    • 12. Some commercial/retail leasing Acts
  • 13. Unconscionability Under TPA s51AA & ASICA s12CA
    “A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.”
    “A corporation must not, in trade or commerce, engage in conduct in relation to financial services if the conduct is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.”
  • 14. FSR Legislation & Unconscionability (s991A(1) CA)
    “A financial services licensee must not, in or
    in relation to the provision of a financial
    service, engage in conduct that is, in all the
    circumstances, unconscionable.”
  • 15. Unconscionability Under TPA s51AB & ASICA s12CB
    “A corporation shall not, in trade or commerce, in connection with the supply [but not supply for purposes of re-supply or using up / transforming in trade or commerce] .. of goods or services [of a kind ordinarily acquired for personal, domestic, or household use or consumption] engage in conduct that is, in all the circumstances, unconscionable”
    ASICA: supply of financial services
  • 16. Unconscionability Under TPA s51AC (cf s12CC ASIC Act)
    “A person/corp must not, in trade or commerce, in connection with (a) the supply .. of goods or services to a corp/person (other than a listed corporation) [for purposes of trade or commerce] or (b) the acquisition or .. goods or services from a corp/person (other than a listed corporation) [for purposes of trade or commerce], engage in conduct that is, in all the circumstances, unconscionable.” (s51AC TPA)
    ASICA: supply of financial services
  • 17. Unconscionability under TPA s51AB & AC & s12CB & CC ASIC Act – indicators
    Parties’ relative bargaining strengths
    Whether conditions extend beyond what is reasonably necessary to protect legitimate interests
    Understanding of the documents
    Any undue influence, pressure, or unfair tactics by a party or someone acting on their behalf
    Comparative prices and terms for availability of goods and services elsewhere
    Sections 51AC & s12CC only:
    Consistent with treatment of similar parties/transactions
    Compliance with any relevant industry codes
    Unreasonable failure to disclose (i) intended conduct which might affect the other party’s interests and (ii) risks to the other party arising from that conduct which reasonably they might not foresee
    Willingness to negotiate terms and conditions
    Whether parties act in good faith
    Whether contractual right exists to vary unilaterally a term or condition of a contract
  • 18. Meanings & Levels of Unconscionability Regulation
    Under ‘the Unwritten Law’ (4 categories as described by Paul Finn):
    [1] Unconscionability as the underlying concept for Equity as a whole
    [2] Unconscionability as an element or finding that is essential for specific equitable/other actions (egestoppel, relief against forfeiture, unconscionable dealings, unilateral mistake etc)
    • Coercion/exploitation/advantage-taking
    • 19. Unconscionable exercise of rights, retention of benefits etc
    [3] Doctrines & remedies associated with unconscionable dealings & exploitation, advantage-taking, and defective understanding:
    • ‘spousal guarantees’ rules (egYerkey v Jones, Garcia)
    • 20. ‘special disadvantage’ rule (egAmadio)
    • 21. Others (egBridgewater v Leahy)
    [4] Unconscionability as a direct ground of relief in its own right, unmediated by conventional doctrines (egLenah Game Meats v ABC)
  • 22. Full Fed Ct in ACCC v Samton Holdings (2002)
    Unconscientious exploitation of a party’s special disadvantage (egAmadio)
    Defective understanding, relationship of influence, and absence of independent explanation (egGarcia)
    Unconscionable departure from previous representation (egestoppel – Verwayen, Waltons Stores v Maher)
    Relief against forfeiture and penalty (egLegione v Hateley and Stern v McArthur)
    Rescind contracts for unilateral mistake (egTaylor v Johnson)
  • 23. Important High Court Instruction Affecting Statutory and Non-Statutory Interpretation
    Farah Constructions v Say-Dee [2007] HCA 22 at [135]:
    ‘Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.’
  • 24. ACCC v CG Berbatis Holdings Pty Ltd [2000] FCA 1376
    The [tenants] suffered what might be called a ‘situational’ as distinct from a ‘constitutional’ disadvantage. That is to say it did not stem from any inherent infirmity or weakness or deficiency. It arose out of the intersection of the legal and commercial circumstances in which they found themselves. That disadvantage, not being constitutional in character, was not able to be mitigated by the fact of legal representation which they had available to them at all material times.
  • 25. Unconscionable Conduct
    Senate Economics Committee outcomes
    Government’s response
    Implications of TPA reforms for ASIC Act and cognate state laws on statutory unconscionable conduct
    Pros and cons of legislated examples
    Different kinds of principles
    Pros and cons of different kinds of principles
  • 26. Recommendation on Examples
    ‘In many circumstances, statutory unconscionable conduct can be difficult for stakeholders to understand and for the courts to apply, which contributes to a lack of certainty and confidence surrounding the effect of the provisions.’
    ‘A list of examples will not improve understanding or implementation of the provisions.’
    Scope for the ACCC, ASIC, and state regulators under a single national law on statutory unconscionable conduct (ie ACL) to include examples and other guidance.
  • 27. Recommendation on Principles
    ‘Interpretative principles, as an aid to interpretation of the provisions, would assist the courts in interpreting the provisions, stakeholders in understanding them, and regulators in enforcing them.’
    ‘The principles should recognise that section 51AC (and, arguably, section 51AB) of the TPA and equivalent provisions of the ASIC Act are intended to go beyond the scope of the equitable and common law doctrines of unconscionability, and are not confined by them.’
  • 28. Recommendation of Principles of Interpretation
    Sections 51AB and 51AC go beyond common law and equity AND not limited by them
    Apply to terms and progress of a contract – ie not just what happens at execution
    Apply to systems/patterns of business behaviour – ie not just particular incidents
    Amadio-like special disadvantage not needed to access the statutory provisions/remedies
  • 29. Other Unconscionability-Related Reforms
    Harmonisation of sections 51AB and 51Ac to be considered by Government
    Given single national ACL + increased regulatory enforcement powers, need for uniform national regulatory guidance by ACCC, ASIC, and state regulators on statutory unconscionable conduct (similar to proposals under unfair contracts regime)
    Nature of the regulatory guidance on unconscionable conduct
    Regulators to bring more test cases on the interpretative principles and other reforms
    Non-government test case support/encouragement too (see later advocacy, pro bono, and research recommendations)
  • 30. Five Identified Franchising Behaviours
    Unilateral variation (eg via operations manual)
    Unforeseen capital expenditure
    End-of-term changes/arrangements
    Attribution of legal costs
    Confidentiality agreements
  • 31. Getting the Right Balance
    Availability of evidence/expertise
    Availability of sample clauses
    Connection between identified behaviours
    Spectrum of cost recovery circumstances
    Spectrum of regulatory options:
    Absolute ban
    Contingent ban
    Compensation/consultation right
    Structure for opening/closing relationships
    Benefits/limits of enhanced disclosure
  • 32. Other Franchising Matters
    Additional ‘Plain English’ up front disclosure document
    Treatment of ‘Good Faith’
    ACCC’s function as regulator v mediator
    Need for Cth/State governmental attention to wider issue of mechanisms for early dispute resolution intervention
    Attribution of legal costs to be examined more extensively within that review process
    Government and ACCC to work with franchising sector to develop better education, training, and research on franchising
  • 33. Research, Advocacy, and Pro Bono Work
    Pro bono legal work to support further research, advocacy, and test cases for small business on both statutory unconscionability and franchising
    Alignment with existing government policies and processes on pro bono work by lawyers and consumer research and advocacy
    Evidence-based research needed to inform next review of these reforms and all other recent TPA/FCC changes
    Allow period of 3-5 years for current changes (including those arising from the Panel’s Report) to take effect
  • 34. Some Lessons for Lawyers in All Arms of the Profession
    Solutions to most major regulatory problems require more than doctrinal legal skills and knowledge
    Significance of representative bodies as stakeholders in legal regulatory reform process and assistance to them
    Realities and sophistication of the policy and reform development process
    Importance of legal submissions to public inquiries:
    Influencing the ‘rules of the game’ for big/small business
    Practical legal expertise beyond governmental expertise
    Insights into problems/traps beyond governmental expertise
    Meaningful examples of clauses/practices/safeguards
    Connections to CSR, pro bono, government procurement, business regulation impact, and other ‘business case’ issues for lawyers as client services providers
    Non-submission and post-submission complacency traps
    Non-submission avenues of influence
    Significance of legal/public commentary/analysis
    Insights on the internal governmental processes for major reforms
    Gap between research needs of one arm of government and what other arms of government recognise in research funding/rankings
  • 35. Future Regulatory Guidance, Advice, and ‘Test Case’ Litigation
    Flow-through impact of everything in the context of a changed regulatory landscape:
    Pre-report governmental decisions to reform statutory unconscionable conduct and FCC
    One single national law on statutory unconscionable conduct
    Enhanced regulatory powers (eg infringement notices)
    Recent ACCC/ASIC court wins and renewed impetus for test cases
    Ongoing test cases on scope of statutory unconscionability in other contexts (eg share margin calls – Goodridge case; excessive bank charges as penalties: current litigation)
    Framing regulatory guidance beyond decided cases
    Potential harmonisation and impact of business/consumer provisions on unconscionable conduct
    Further judicial rationalisation of unconscionability doctrines (flagged by French J in Berbatis)
    Academic/judicial development of framework for statutory unconscionable conduct transcending existing non-statutory bases for relief
    Unresolved legal questions for ‘test case’ advice/litigation about:
    Spread of unconscionability doctrines across ss51AA-51AC
    Statutory extensions beyond those doctrines
    Application of ‘special disadvantage’ to B2B contexts (egBell Group v Westpac and Optus v Telstra litigation)
    Existence, scope, and application of ‘situational’ forms of special disadvantage
    Meaning, scope, and application of good faith as an indicator of statutory unconscionability
    Interaction with ongoing academic/judicial disputes about the content and tests for good faith under contract law
  • 36. Good Faith Issues
    Twin tracks in commercial matters – contract + TPA
    Content of good faith?
    Matter of implication of terms or construction through doctrine?
    Tests for good faith?
    Current judicial position on good faith
    Related obligations (eg cooperation, best endeavours, not hinder etc)
    Relevant clauses (eg entire agreement, negation of implied terms, sole discretion, etc)
    Negotiating and drafting options on good faith