Application by Flexigroup Limited (No 2) - [2020] ACompT 2

AUSTRALIAN COMPETITION TRIBUNAL
Application by Flexigroup Limited (No 2) [2020] ACompT 2

Review from: Application for authorisation AA1000439 lodged by Australian Energy Council, Clean Energy Council, Smart Energy Council and Energy Consumers Australia in respect of the New Energy Tech Consumer Code

File number: ACT 1 of 2019

Tribunal: O'BRYAN J (Deputy President)
DR J WALKER (Member)
MS D EILERT (Member)

Date of Determination: 15 September 2020

Date of publication of reasons: 28 September 2020

Catchwords: COMPETITION AND CONSUMER – review under s 101 of the Competition and Consumer Act2010 (Cth) of authorisation granted by the Australian Competition and Consumer Commission – voluntary code of conduct for suppliers of New Energy Tech (including solar panels) for residential and small business use – code of conduct restricts the offer of unregulated consumer credit (including buy now pay later) in connection with unsolicited sales of New Energy Tech – code of conduct stipulates conditions in relation to the offer of unregulated consumer credit (including buy now pay later) in connection with unsolicited sales of New Energy Tech – under the code of conduct, suppliers must comply with mandatory standards prepared by Code Administrator – where code of conduct likely to give rise to public benefits but also likely to give rise to public detriments – where public detriments can be removed or reduced by conditions of authorisation requiring amendments to the code of conduct – whether appropriate to impose conditions of authorisation relating to reporting – determination of the Australian Competition and Consumer Commission varied

Legislation:
Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law)

Competition and Consumer Act 2010 (Cth), ss 45AD, 45, 46, 47, 88, 90, 91B, 91C, 101, 102, 109

Australian Securities and Investments Commission Act 2001 (Cth)

Corporations Act 2001 (Cth)

National Consumer Credit Protection Act2009 (Cth)

National Consumer Code

National Consumer Credit Protection Regulations 2010 (Cth)

Parliamentary Privileges Act 1987 (Cth)

Privacy Act 1988 (Cth)

Treasury Laws Amendment (Design and Distribution Obligations and Product Intervention Powers) Act 2019 (Cth)

Cases cited:
Application by Medicines Australia Inc [2007] ACompT 4; ATPR ¶42-164

Herald & Weekly Times Ltd (1978) 17 ALR 281

Re 7-Eleven Stores Pty Ltd [1994] ATPR ¶41-357

Re 7-Eleven Stores Pty Ltd [1998] ACompT 3; ATPR ¶41‑666;

Re Media Council of Australia Authorisation (1987) 88 FLR 1; [1987] ATPR ¶40-774

ReQueensland Co-operative Miling Association Ltd (1976) 25 FLR 169; [1976] ATPR ¶40-012

Date of hearing: 9 – 12 June 2020

Registry: Victoria

Category: Catchwords

Number of paragraphs: 426

Counsel for the Applicant: Mr N De Young SC with Ms C van Proctor

Solicitor the Applicant: Clayton Utz

Counsel for the Authorisation Applicants: Mr D Preston

Solicitor for the Authorisation Applicants: Allens

Counsel for Australian Competition and Consumer Commission: Dr R Higgins SC with Mr C Tran

Solicitor for Australian Competition and Consumer Commission: Australian Government Solicitor

Counsel for Australian Securities and Investments Commission: Mr M D Tehan

Solicitor for Australian Securities and Investments Commission: Mr J Walker,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] ACompT 2
Decision Date: 15 September 2020

CaseChat Overview and Summary

Flexigroup Limited applied to the Federal Court of Australia for a review of the authorisation granted by the Australian Competition and Consumer Commission (ACCC) for a voluntary code of conduct for suppliers of New Energy Tech, including solar panels, for residential and small business use. The code of conduct imposed restrictions on the offer of unregulated consumer credit, including buy now pay later, in connection with unsolicited sales of New Energy Tech. The ACCC authorised the code of conduct, subject to certain conditions, including the requirement for suppliers to comply with mandatory standards prepared by a Code Administrator. Flexigroup Limited challenged the authorisation, arguing that it was not appropriate to impose conditions of authorisation relating to reporting.

The court was required to determine whether the conditions of authorisation imposed by the ACCC were appropriate in light of the likely public benefits and detriments arising from the code of conduct. The court noted that the code of conduct was likely to give rise to public benefits, such as increased consumer protection and improved market efficiency, but also likely to give rise to public detriments, such as reduced consumer choice and increased costs for suppliers. The court found that the public detriments could be removed or reduced by conditions of authorisation requiring amendments to the code of conduct, including conditions relating to reporting.

The court varied the determination of the ACCC by imposing new conditions of authorisation relating to reporting. The court found that these conditions were appropriate in light of the likely public benefits and detriments arising from the code of conduct. The court noted that the conditions would ensure that the code of conduct was transparent, accountable, and effective in achieving its objectives. The court also noted that the conditions would not unduly burden suppliers or reduce consumer choice.

The court's determination varied the authorisation granted by the ACCC for the code of conduct. The new conditions of authorisation required amendments to the code of conduct, including conditions relating to reporting. The court's determination ensured that the code of conduct would achieve its objectives while minimising any public detriments. The court's determination also provided greater transparency and accountability in the operation of the code of conduct, which would benefit both suppliers and consumers.

Orders