Australian Competition and Consumer Commission v Fuji Xerox Australia Pty Ltd

The Federal Court of Australia was asked to determine if the Australian Competition and Consumer Commission could proceed with its claim against Fuji Xerox Australia Pty Ltd. The ACCC alleged that Fuji Xerox included unfair contract terms in their contracts with customers, contrary to the Australian Consumer Law. Fuji Xerox applied for the case to be dismissed on the grounds that the ACCC had no reasonable prospect of success, as they had not identified specific contracts or customers and had not proven the contracts were small business contracts and standard form contracts. The court needed to decide if it was possible to find terms unfair without identifying specific contracts and if it could grant relief in the absence of such findings.

The court found that the ACCC could potentially establish unfairness of contract terms without identifying specific contracts if the contracts shared common characteristics that made them comparable. This was supported by previous cases where unfairness was determined without specific contracts being identified. The court also considered that the statutory provision rendered unfair terms void without court intervention, thus the court’s role would be to confirm this and reduce uncertainty. Therefore, the court concluded that the ACCC had a reasonable prospect of success and dismissed the application for summary dismissal.

The court ordered the ACCC to file a further amended concise statement within 14 days and Fuji Xerox to respond within 21 days. The matter was set for further case management on April 21, 2021. The court dismissed the application for summary dismissal with costs.