From: Paul Daly <paul.daly@uottawa.ca>
Sent: Wednesday 14 August 2024 14:24
To: Norman Siebrasse; Jeannie Paterson
Cc: obligations@uwo.ca
Subject: RE: HCA on unconscionable conduct and accessory liability
As noted by
others, the ECHR jurisprudence on art. 6 addresses the distinction between
civil and criminal penalties.
For anyone
interested in this important issue, the Supreme Court of Canada has also
weighed in on the question of whether some civil penalties (known here as
administrative monetary penalties) are disguised criminal offences that attract
Charter protections. For a summary of the most recent decision, from
2015, see my note here.
From: Norman Siebrasse <norman.siebrasse@gmail.com>
Sent: Wednesday, August 14, 2024 7:56 AM
To: Jeannie Paterson <jeanniep@unimelb.edu.au>
Cc: obligations@uwo.ca
Subject: Re: HCA on unconscionable conduct and accessory liability
Attention : courriel externe | external email
As
another example, the Canadian
Competition Act provides for an "administrative monetary penalty"
of up to $10m for an abuse of dominant position (s74.1.(1)(c)), or for
prematurely closing a notifiable transaction (123.1(3)). The Act assures us it
is not criminal in nature: 79(3.3) "The purpose of an order made against a
person under subsection (3.1) is to promote practices by that person that are
in conformity with the purposes of this section and not to punish that
person."
.
On Wed, Aug
14, 2024 at 8:48 AM Jeannie Paterson <jeanniep@unimelb.edu.au> wrote:
Eg the Data Protection Act 2018.
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: Jonathon Moore KC <jpmoore@vicbar.com.au>
Date: Wednesday, 14 August 2024 at 9:08 PM
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: [EXT] Re: HCA on unconscionable conduct and accessory liability
External email: Please exercise caution
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…
Ninian Stephen Chambers | Room 1 | Level 38, 140 William St, Melbourne VIC 3000
T +613 9225 8946 | M +61 0401 712 737
Clerk | List A | www.barristers.com.au
205 William Street | Melbourne VIC 3000 | DX 90 Melbourne | T +613 9225 8444
Liability limited by a scheme approved under Professional Standards Legislation.This email is confidential and may be subject to legal professional privilege. If you are not the intended recipient, please notify me and delete all copies.
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
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.
Regulated by the Bar Standards Board.
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
Hunter St & Auckland St, Newcastle NSW 2300
Top 200 University in the world by QS World University Rankings 2021
I acknowledge the Traditional Custodians of the land in which the University resides and pay my respect to Elders past, present and emerging.
I extend this acknowledgement to the Worimi and Awabakal people of the land in which the Newcastle City campus resides and which I work.CRICOS Provider 00109J
Disclaimer
The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful.
This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast, a leader in email security and cyber resilience. Mimecast integrates email defenses with brand protection, security awareness training, web security, compliance and other essential capabilities. Mimecast helps protect large and small organizations from malicious activity, human error and technology failure; and to lead the movement toward building a more resilient world. To find out more, visit our website.
Disclaimer
The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful.
This email has been scanned for viruses and malware, and may have been automatically archived by Mimecast, a leader in email security and cyber resilience. Mimecast integrates email defenses with brand protection, security awareness training, web security, compliance and other essential capabilities. Mimecast helps protect large and small organizations from malicious activity, human error and technology failure; and to lead the movement toward building a more resilient world. To find out more, visit our website.
--
Norman Siebrasse
Professor of Law
University of New Brunswick
Sufficient
Description.com