From:                                                       Richard Blakeley <richard.blakeley@brickcourt.co.uk>

Sent:                                                         Wednesday 14 August 2024 12:39

To:                                                            Gerard McMeel KC; Jonathon Moore KC; Robert Stevens; Kayleen Manwaring; Matthew Hoyle; Jeannie Paterson; Neil Foster; obligations@uwo.ca

Subject:                                                   Re: HCA on unconscionable conduct and accessory liability

 

Somewhat similar to Gerard’s example, in the UK the Office of Financial Sanctions Implementation has the power to impose civil financial penalties for breaches of sanctions/restrictive measures.

 

The sanctions Regs also create criminal offences for breach of the same measures. Those criminal offences have a mental element of ‘knew or had reasonable cause to suspect’ that e.g. a payment being made was to a designated person and in breach of sanctions.   As a result of s.54(3) of the Economic Crime (Transparency and Enforcement) Act 2022, satisfaction of the mental element is not required for the imposition a civil penalty, albeit its presence/absence may go to mitigation / severity.

 

Section 54(3) ECTEA provides:

“In determining … whether a person has breached a prohibition, or failed to comply with an obligation, imposed by or under financial sanctions legislation, any requirement imposed by or under that legislation for the person to have known, suspected or believed any matter is to be ignored.”

 

 

 

 

 

 

 

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Richard Blakeley KC
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From: Gerard McMeel KC <Gerard.mcmeel@quadrantchambers.com>
Date: Wednesday, 14 August 2024 at 12:24
To: Jonathon Moore KC <jpmoore@vicbar.com.au>, Robert Stevens <robert.stevens@law.ox.ac.uk>, Kayleen Manwaring <kayleen.manwaring@unsw.edu.au>, 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

 

The powers of our financial conduct regulator to impose unlimited civil penalties on its regulated community (some 10% of the UK economy), including for breaches of its very broadly expressed Principles for Businesses, under sections 205 and 206 of the UK Financial Services and Markets Act 2000 ,may well exceed the powers of comparable bodies elsewhere. 

 

Gerard McMeel KC

From: Jonathon Moore KC <jpmoore@vicbar.com.au>
Sent: 14 August 2024 12:07
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Kayleen Manwaring <kayleen.manwaring@unsw.edu.au>; 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: Re: HCA on unconscionable conduct and accessory liability

 

External Email

 

Although perhaps not as widespread as in Australia, doesn’t the UK also have civil penalties, without the usual protections of the criminal law?

 

Not that I favour the regime…

 

JONATHON MOORE KC | Barrister

 

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From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Date: Wednesday, 14 August 2024 at 8:24 pm
To: Kayleen Manwaring <kayleen.manwaring@unsw.edu.au>, 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: Re: HCA on unconscionable conduct and accessory liability

 

ie a punitive sanction without any of the procedural protections of the criminal law, but with a different label?

 

From: Kayleen Manwaring <kayleen.manwaring@unsw.edu.au>
Sent: Wednesday, August 14, 2024 11:11:09 AM
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: Re: HCA on unconscionable conduct and accessory liability

 

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

 

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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

 

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T: +61 416869181

E: jeanniep@unimelb.edu.au   

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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

 

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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

 

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