Director of Consumer Affairs Victoria v Gibson

The case of Director of Consumer Affairs Victoria v Gibson involved the Director of Consumer Affairs Victoria bringing proceedings against Gibson, a fitness entrepreneur, and her company, alleging contraventions of sections 18, 21, and 29 of the Australian Consumer Law (ACL). The matter was heard in the County Court of Victoria. The primary dispute centred on whether Gibson's actions constituted misleading or deceptive conduct, unconscionable conduct, and false or misleading representations concerning charitable donations.

The court had to determine whether the Director had proven the alleged contraventions of the ACL. This included examining the evidence presented by the Director, particularly in light of Gibson's failure to participate in the proceedings. The court needed to consider the applicability of section 4 of the ACL, which deals with implied representations, and how this interacts with the state-based provisions of the ACL in Victoria. Additionally, the court had to evaluate the weight and admissibility of the evidence provided by the Director, especially considering that some of it was derived from responses given on a without prejudice basis.

In reaching its decision, the court found that the Director had proven the alleged contraventions of section 18 of the ACL and the ACL (Vic), as well as some of the alleged contraventions of section 21. However, the court did not uphold the alleged contraventions of section 29. The court determined that the evidence presented by the Director was sufficient to establish the misleading or deceptive conduct and unconscionable conduct by Gibson and her company. However, the evidence did not sufficiently support the claim that there were false or misleading representations concerning charitable donations. The court also considered the impact of Gibson's non-participation on the proceedings and the admissibility of the without prejudice responses.

The final orders of the court directed the Director to file a proposed minute of orders consistent with the court's reasons for judgment, including any proposed declaratory relief and a submission on the appropriateness of the proposed declarations and orders, along with a submission on the appropriate orders as to costs. The court also directed that the hearing and determination of relief by way of penalties would be considered after final orders were pronounced, taking into account the court's conclusions on liability.