Lux Distributors Pty Ltd (ACN 054 882 852) v Australian Competition and Consumer Commission

[2014] HCASL 55

LUX DISTRIBUTORS PTY LTD (ACN 054 882 852)

v

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

[2014] HCASL 55
M122/2013

1. The applicant seeks special leave to appeal from the orders of the Full Court of the Federal Court of Australia (Allsop CJ, Jacobson and Gordon JJ). The Full Court allowed an appeal by the Australian Competition and Consumer Commission ("the ACCC") against the dismissal of proceedings against the applicant claiming for contraventions of s 51AB of the Trade Practices Act 1974 (Cth) ("the TPA") and s 21 of the Australian Consumer Law ("the ACL") in sch 2 to the Competition and Consumer Act 2010 (Cth). The contraventions were alleged to arise out of the sale of vacuum cleaners by direct salesmen to elderly women in their own homes.

2. The primary judge (Jessup J) dismissed the ACCC's application, finding that in all the circumstances the applicant's conduct was not unconscionable. The Full Court unanimously allowed the appeal, holding that the applicant's conduct had been unconscionable within the meaning of s 51AB of the TPA and s 21 of the ACL.

3. The applicant applies for special leave to appeal contending that the application raises a question of the principles to be applied to the determination of statutory unconscionability in a direct sales context.  It is asserted that the Full Court supplanted the statutory test with a more stringent standard of "required conscionable conduct".  Contrary to the applicant's submissions, no issue of general principle is raised by the application.  It does not rise above a challenge to the weight accorded by the Full Court to the facts.   

4. The application is dismissed.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
12 March 2014 S.J. Gageler