Australian Competition and Consumer Commission v Fuji Xerox Australia Pty Ltd [2021] FCA 153

Australian Competition and Consumer Commission v Fuji Xerox Australia Pty Ltd [2021] FCA 153

The respondents' summary dismissal application fails because it cannot be said that the applicants have no reasonable prospect of successfully prosecuting the proceeding. Existing authority supports the making of declaratory and injunctive relief as to unfair contract terms under the Australian Consumer Law even in the absence of identification of individual contracts and counterparties. There exists a real controversy as required for the exercise of federal jurisdiction, and the applicants are entitled to rely on statutory presumptions regarding standard form contracts at this stage. The pleadings may be amended as necessary, but the case should proceed.

Parties
First Applicant: Australian Competition and Consumer Commission; Second Applicant: Rami Greiss; First Respondent: Fuji Xerox Australia Pty Ltd; Second Respondent: Fuji Xerox Finance Ltd
Jurisdiction
Australia
Judgment Date
03 March 2021
Procedural Posture
Civil / Interlocutory Application for Summary Dismissal
Outcome
Respondents' application for summary dismissal dismissed with costs
Legal Topics
Unfair Contract Terms, Small Business Contracts, Standard Form Contracts, Declaratory and Injunctive Relief, Jurisdiction (federal Matters), Summary Dismissal
Consumer Law Commercial Law Unfair Contract Terms Small Business Contracts Standard Form Contracts Declaratory and Injunctive Relief Jurisdiction (federal Matters) Summary Dismissal

Case Brief

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Parties

Australian Competition and Consumer Commission

First Applicant

Rami Greiss

Second Applicant

Fuji Xerox Australia Pty Ltd

First Respondent

Fuji Xerox Finance Ltd

Second Respondent

Procedural Posture

Civil / Interlocutory Application for Summary Dismissal

Legal Issues

  1. 1 Whether a finding that terms are unfair under Pt 2-3 of the Australian Consumer Law is possible without identifying particular contracts between identified parties
  2. 2 Whether declaratory and injunctive relief in relation to an unfair terms finding is possible or permissible in the absence of findings that the contracts are small business contracts and standard form contracts
  3. 3 Whether the applicants have no reasonable prospect of successfully prosecuting the proceeding so as to justify summary dismissal

Ratio Decidendi

The respondents' summary dismissal application fails because it cannot be said that the applicants have no reasonable prospect of successfully prosecuting the proceeding. Existing authority supports the making of declaratory and injunctive relief as to unfair contract terms under the Australian Consumer Law even in the absence of identification of individual contracts and counterparties. There exists a real controversy as required for the exercise of federal jurisdiction, and the applicants are entitled to rely on statutory presumptions regarding standard form contracts at this stage. The pleadings may be amended as necessary, but the case should proceed.

Court Disposition

Respondents' application for summary dismissal dismissed with costs

Orders

  • The respondents' application for summary dismissal is dismissed with costs.
  • The applicants are directed to file and serve a further amended concise statement within 14 days of these orders dealing with the matters identified in paragraph 68 of the reasons for judgment.