Australian Competition and Consumer Commission v Fuji Xerox Australia Pty Ltd [2021] FCA 153

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Fuji Xerox Australia Pty Ltd [2021] FCA 153 File number: NSD 1156 of 2020

Judgment of: STEWART J

Date of judgment: 3 March 2021

Catchwords: CONSUMER LAW – unfair contract terms in Pt 2-3 of the Australian Consumer Law – whether finding that terms are unfair is possible without identifying particular contracts between identified parties – whether declaratory and injunctive relief in relation to unfair terms finding is possible or permissible in the absence of findings that the contracts are small business contracts and standard form contracts PRACTICE AND PROCEDURE – application by respondents for summary dismissal – whether applicants have no reasonable prospect of successfully prosecuting the proceeding – where applicants seek declarations and injunctions concerning the use by the respondents of template forms of contract said to be "small business contracts" and "standard form contracts" containing "unfair terms" as defined in Pt 2-3 of the Australian Consumer Law – where the contracts in question have not been identified – whether there is a real and not a hypothetical or theoretical question – whether there is a "matter" as required by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) to enliven the jurisdiction of the Court – whether s 78B of the Judiciary Act 1903 (Cth) enlivened – application dismissed with costs

Legislation: Federal Court of Australia Act 1976 (Cth) s 31A Federal Court Rules 2011 (Cth) r 26.01 Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 23-27, 232, 250 Australian Securities and Investments Commission Act 2001 (Cth) ss 12BF-12BH, 12BK, 12GD, 12GND Judiciary Act 1903 (Cth) ss 39B(1A)(c), 78B Privacy Act 1988 (Cth) Commonwealth of Australia Constitution Act 1900 (Imp) s 76