Presentation Transcript

1. Commercial Law Group The ACL: Jurisdiction issues and the definition of ‘consumer’ Professor Justin Malbon
2. TOPICS The Federal and State operation of the ACL The extraterritorial operation of the ACL, and Who is a ‘consumer’? The ACL: Jurisdiction and definition of consumer
3. The Legislation Schedule 2 of the Competition and Consumer Act 2010 (Cwlth) Australian Consumer Law and Fair Trading Act 2012 (Victoria) The ACL: Jurisdiction and definition of consumer
4. ACL and Fair Trading Act Victoria 8 Application of Australian Consumer Law (1) The Australian Consumer Law text, as in force from time to time— (a) applies as a law of this jurisdiction; and (b) as so applying may be referred to as the Australian Consumer Law (Victoria); and (c) as so applying is a part of this Act. Section 7 provides that the Australian Consumer Law text consists of— (a) Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth; and (b) the regulations under section 139G of that Act. The ACL: Jurisdiction and definition of consumer
5. Persons and regulators The ACL refers to - ‘persons’ rather than ‘corporations’, and the ‘regulator’. The ACL: Jurisdiction and definition of consumer
6. Comparing s.52 TPA with s.18 ACL Section 52(1) provided that A corporationshall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Whilst section 18(1) ACL now provides that: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. The ACL: Jurisdiction and definition of consumer
7. Who is the regulator? Section 2 ACL defines the “regulator” as follows: (a) for the purposes of the application of this Schedule as a law of the Commonwealth—means the Commission; or (b) for the purposes of the application of this Schedule as a law of a State or a Territory—has the meaning given by the application law of the State or Territory. The federal regulator is the ACCC. Section 10 ACL and Fair Trading Act (Victoria) defines the regulator for the purposes of the Act as the “Director”, meaning the Director of the Consumer Affairs Victoria (CAV). The ACL: Jurisdiction and definition of consumer
8. Federal and State jurisdiction Federal jurisdiction Section 138 Competition and Consumer Act 2010 (Cwlth) confers jurisdiction over any civil matter regarding the ACL on the Federal Court. It has exclusive jurisdiction, except for the jurisdiction granted to the Federal Magistrates Court under s.138A, which grants it jurisdiction for civil claims up to $750,000. The State and Territory courts are vested with concurrent federal jurisdiction under s.138B to deal with any matter under the ACL, other than – Proceedings initiated by the ACCC or the Commonwealth Minister; Matters in relation to manufacturer’s liability and pyramid schemes. The ACL: Jurisdiction and definition of consumer
9. Victorian jurisdiction A “court” under the Victorian Act is defined in section 223 of the ACL and Fair Trading Act (Victoria), It means the Supreme, County and Magistrates’ Courts and VCAT. VCAT, however, cannot make the following orders otherwise permitted under the ACL: accepting undertakings (s.218), making pecuniary and non-punitive orders (ss.224 and 246) and making adverse publicity orders (s.247) (see section 223 ACL and Fair Trading Act (Victoria)). The ACL: Jurisdiction and definition of consumer
10. Extraterritorial application The Competition and Consumer Act – ACL (other than Part 5-3) generally deals with extraterritorial jurisdiction in much the same way it was dealt with under the TPA. Section 5 CCA applies the Act to conduct engaged in outside Australia by Bodies corporate or incorporated by carrying on business within Australia; or Australian citizens; or Persons ordinarily resident in Australia. Note section 4(1) Competition and Consumer Act and section 2(1) ACL both define “trade or commerce” to mean “trade or commerce within Australia or between Australia and places outside Australia”. The ACL: Jurisdiction and definition of consumer
11. Definition of “Consumer” As an example of the application of the definition, we might look at section 54(1) ACL, which provides (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. The ACL: Jurisdiction and definition of consumer
12. Definition of a consumer A consumer is defined by section 3 ACL Acquiring goods as a consumer (1) A person is taken to have acquired particular goods as a consumerif, and only if: (a) the amount paid or payable for the goods, as worked out under subsections (4) to (9), did not exceed: (i) $40,000; or (ii) if a greater amount is prescribed for the purposes of this paragraph—that greater amount; or (b) the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or (c) the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads. The ACL: Jurisdiction and definition of consumer
13. Further reading The ACL: Jurisdiction and definition of consumer