Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd (2000) 96 FCR 491
Undesirable business practices; unconscionable conduct; overlap between the general law and statute
Facts: The owners of a shopping mall made the renewal of a tenant's lease conditional on the tenant withdrawing legal proceedings it had begun against the owners. The ACCC alleged that this amounted to unconscionable conduct in breach of s 51AA of the Trade Practices Act 1974 (Cth).
Issue: What conduct is prohibited by s 51AA?
Decision: The section prohibits conduct that is unconscionable according to the common law meaning of unconscionability. Reason: French J said (at [26]):
"Section 51AA prohibits corporations from engaging in conduct which is unconscionable within the meaning of the common law of Australia. … What the unwritten law does presently is to confine its operation to certain classes of case. The reference in s 51AA to the "meaning of the unwritten law" is a reference to the classes of case in which the unwritten law will award remedies for unconscionable conduct assessed by a court. On this basis … the rules governing the relevant application of the term 'unconscionable conduct' and therefore the application of s 51AA are judge-made rules that can change from time to time."
Note: Although this case concerns s 51AA and 87 of the Trade Practices Act it continues to be relevant to the interpretation and application of s 20, 237 and 243 of the Australian Consumer Law.