From: Jeannie
Paterson <jeanniep@unimelb.edu.au>
Sent: Wednesday
14 August 2024 11:24
To: Kayleen
Manwaring; Matthew Hoyle; Neil Foster; obligations@uwo.ca
Subject: Re: HCA
on unconscionable conduct and accessory liability
Hi Matthew
Can a statutory
fine be ‘in substance’ a criminal penalty when it is called a civil penalty and
the Act in question has a separate part on criminal liability? I’m not sure.
But your broader point about the civil penalty having a penal purpose or effect
is interesting.
Australian
courts have repeatedly stressed that the civil penalty does not aim to punish.
Instead, according our courts, its purpose is general and specific deterrence.
But the civil
penalty jurisdiction does look penal - it is not tied to compensation or even
disgorgement.
The penal point
interested Elise Bant and me so much we have written on the penalty
jurisdiction under statute. We have edited a collection with Wayne Courtney and
James Goudkamp on Punishment
and Private Law.
You might also
like the Law of Civil Penalties, edited by Kayis, Gluer and Walpole.
Cheers
Jeannie Marie Paterson | The University of Melbourne
Professor of Law (Consumer
Protection and Emerging Technology)
Fairness, Transparency and
Coherence (FTC) in Consumer and Credit Protection Project | Melbourne Law
School
Director of the Centre for
Artificial Intelligence and Digital Ethics | Faculty of Engineering and
Information Technology
The University of Melbourne
https://law.unimelb.edu.au/centres/caide
Sent
from Outlook for iOS
From:
Kayleen Manwaring <kayleen.manwaring@unsw.edu.au>
Sent: Wednesday, August 14, 2024 8:11 p.m.
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>;
Jeannie Paterson <jeanniep@unimelb.edu.au>;
Neil Foster <neil.foster@newcastle.edu.au>;
obligations@uwo.ca <obligations@uwo.ca>
Subject: [EXT] Re: HCA on unconscionable conduct and accessory liability
|
External email: Please exercise caution |
It
does, Matthew, but this is not a criminal remedy under the ACL, rather it's a
civil penalty.
Sent
from my brain
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent:
Wednesday, August 14, 2024 7:39:38 pm
To:
Jeannie Paterson <jeanniep@unimelb.edu.au>;
Neil Foster <neil.foster@newcastle.edu.au>;
obligations@uwo.ca <obligations@uwo.ca>
Subject:
RE: HCA on unconscionable conduct and accessory liability
Does s.224 not permit the imposition of “pecuniary penalties” for breach of s.21, as a provision of Part 2-2?
Matthew Hoyle
Barrister
One Essex Court
This message is confidential and may be privileged. If you believe you have received it in error please delete it immediately and inform the sender immediately.
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From: Jeannie Paterson <jeanniep@unimelb.edu.au>
Sent: Wednesday, August 14, 2024 10:15 AM
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>;
Neil Foster <neil.foster@newcastle.edu.au>;
obligations@uwo.ca
Subject: Re: HCA on unconscionable conduct and accessory liability
Rest
assured there is no criminal liability for unconscionable conduct under the
Australian Consumer Law, only civil liability.
(The
statutory prohibition on unconscionable conduct is closest to undue influence
element of aggressive commercial practices in s 7 of the Consumer Protection from Unfair Trading Regulations 2008.)
.
Jeannie Marie Paterson | The University of Melbourne
Professor of Law (Consumer Protection and Emerging Technology)
Fairness, Transparency and Coherence (FTC) in Consumer and Credit Protection Project | Melbourne Law School
Director of the Centre for Artificial Intelligence and Digital Ethics | Faculty of Engineering and Information Technology
The University of Melbourne
https://law.unimelb.edu.au/centres/caide
https://law.unimelb.edu.au/about/staff/jeannie-paterson
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Date: Wednesday, 14 August 2024 at 7:04 PM
To: Neil Foster <neil.foster@newcastle.edu.au>, obligations@uwo.ca
<obligations@uwo.ca>
Subject: [EXT] Re: HCA on unconscionable conduct and accessory liability
|
External email: Please exercise caution |
Thanks Neil. Even by the standards of consumer statutes, criminal and civil liability by reference to “unconscionability” is pretty radical! Our legislation is slightly more specific, prohibiting “misleading” and “aggressive” practices.
On the “knowingly concerned” element, one might compare it to the English decision on unlawful means conspiracy in Racing Partnership [2020] EWCA Civ 1300. The CA, relying on both civil and criminal cases, held that it was not necessary for the defendants to know the means they had agreed to deploy were unlawful in order for them to be liable, provided they know all the facts which make the acts unlawful. There is also no defence of honestly believing (eg based on legal advice) that the steps you have agreed to take are lawful.
Matthew Hoyle
Barrister
One Essex Court
This message is confidential and may be privileged. If you believe you have received it in error please delete this email and immediately inform the sender.
Regulated by the Bar Standards Board.
From:
Neil Foster <neil.foster@newcastle.edu.au>
Sent: Wednesday, August 14, 2024 3:03:12 AM
To: obligations@uwo.ca
<obligations@uwo.ca>
Subject: ODG: HCA on unconscionable conduct and accessory liability
Dear Colleagues;
I thought some might be interested in this decision from the High Court
of Australia today: Productivity Partners Pty Ltd v Australian Competition
and Consumer Commission; Wills v Australian Competition and Consumer Commission
[2024] HCA 27 (14 August 2024) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2024/27.html
.
The issues concern a statutory prohibition on unconscionable conduct (s
21 of the Australian Consumer Law("ACL") provides that
persons must not, in trade or commerce, in connection with supply of services,
"engage in conduct that is, in all the circumstances,
unconscionable"), and the accessory liability of a director/manager where
a company is found to have engaged in such conduct. The facts involve an
education provider in effect deliberately taking on students who it knew would
probably not succeed, for the purpose of getting funding for those students.
There are a number of different decisions from members of the court on
these issues (apart from a joint judgment from Gageler CJ and Jagot J, all the
other 5 members of the court write separately), which range over how to define
“unconscionable” in terms of social norms, to the extent of the knowledge
required for a company officer to be an accessory, and issues around how a
“system” may be unconscionable. The work of colleague Elise Bant is extensively
cited, and other ODG colleagues Rachel Leow and Jeannie-Marie Paterson also are
mentioned.
For my part I found of particular interest the reference of Steward J to
the historical origins of equity’s standards in the background of Christianity
– see para [297], while acknowledging of course that “religious-based concepts
of conscience have since the seventeenth century been
replaced with particular written rules, based on precedent” ([300]). I
discuss the background of the Western legal system in the Christian world-view
in my course on “Law and Religion”.
That to one side, there are lots of interesting things in the judgments
about how to apply a statutory standard of unconscionability in the modern
world.
Regards
Neil
NEIL
FOSTER
Associate
Professor, School of Law and Justice
College
of Human and Social Futures,
University
of Newcastle, NSW
T: +61 2
49217430
E:
neil.foster@newcastle.edu.au
Further
details: http://www.newcastle.edu.au/profile/neil-foster
My
publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828
Blog: https://lawandreligionaustralia.blog
The
University of Newcastle
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I extend this acknowledgement to the Worimi and Awabakal people of the land
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