Ali v Australian Competition and Consumer Commission [2021] FCAFC 109

Federal Court of Australia

Ali v Australian Competition and Consumer Commission [2021] FCAFC 109 Appeal from: Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 3) [2019] FCA 72 Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 4) [2020] FCA 23 Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 5) [2020] FCA 440

File number: WAD 35 of 2020

Judgment of: ALLSOP CJ, BESANKO AND PERRAM JJ

Date of judgment: 22 June 2021

Catchwords: CONSUMER LAW – appeal from a decision of the primary judge that the appellants were knowingly concerned in contraventions of s 18 of the Australian Consumer Law – where representations made to prospective franchisees created the overall impression that franchisor intended to charge in a particular way – where overall impression was false and misleading as to the franchisor's intentions as to the way it would charge –whether evidence of six franchisees could be extrapolated so as to find that representation was made to all prospective franchisees – appeal dismissed CONSUMER LAW – appeal from a decision of the primary judge that the appellants were knowingly concerned in contraventions of s 21 of the Australian Consumer Law and contraventions of cl 6 of the Franchising Code of Conduct – where appellants were director and national franchising manager of company – whether company engaged in unconscionable conduct and did not act in good faith by its charging practices – where franchisees were charged in staged payments and told these payments would be for the set-up and fit-out of franchise – where payments were instead applied to meet general expenses of the company and pay commissions – whether evidence of six franchisees could be extrapolated to all prospective franchisees – whether primary judge could make findings of fact relied upon to find unconscionable conduct – whether a system of systematic dishonest conduct sufficient to establish unconscionability – whether finding of unconscionable conduct illogical – appeal dismissed CONSUMER LAW – appeal from a decision of the primary judge that the appellants were liable to pecuniary penalties, injunctions, disqualification and redress – where penalties imposed exceeded single statutory maximum – whether appellants engaged in one system of conduct or a series of dealings with consumers – whether penalties were manifestly excessive – where primary judge ordered that a trust fund be created for consumer redress to be administered by an accountant under Court supervision – whether redress orders beyond power – whether quantum of funds to be contributed to redress fund arbitrary, inappropriate or manifestly excessive – whether disqualification orders were manifestly excessive – appeal dismissed