Australian Competition and Consumer Commission v Bill Express Limited (ACN 090 059 564) (In Liq) [2009] FCA 1022

Australian Competition and Consumer Commission v Bill Express Limited (ACN 090 059 564) (In Liq) [2009] FCA 1022

The linked nature of the Merchant and Rental Contracts, and the requirement that merchants enter both contracts to access the Bill Express Payment System, constituted prohibited third line forcing under s 47(1) and (6) TPA. The respondents' representations that merchants would be fully subsidised or have no net cost were misleading or deceptive in contravention of s 52, due to non-disclosure of risks and the unilateral variation of subsidies. Clauses purporting to exclude statutory rights and remedies contravened s 53(g) by falsely representing merchants' rights under the contracts and the TPA.

Jurisdiction
Australia
Judgment Date
14 September 2009
Procedural Posture
Civil / Judgment After Hearing (substantially Undefended; Reasons for Judgment and Declarations)
Outcome
Declarations granted as to contravention of ss 47(1), 52, and 53(g) of the Trade Practices Act 1974 (Cth) by the First and Second Respondents; order that a copy of the reasons be retained for s 83 purposes; further relief (such as voiding contracts) refused.
Legal Topics
['exclusive Dealing (third Line Forcing)' 'misleading and Deceptive Conduct' 'false and Misleading Representations']
['competition Law' 'consumer Protection Law'] ['exclusive Dealing (third Line Forcing)' 'misleading and Deceptive Conduct' 'false and Misleading Representations']

Case Brief

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Procedural Posture

Civil / Judgment After Hearing (substantially Undefended; Reasons for Judgment and Declarations)

Legal Issues

  1. 1 ['Whether the respondents engaged in prohibited third line forcing/exclusive dealing under s 47(1) and (6) of the Trade Practices Act 1974 (Cth)' 'Whether the respondents engaged in misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth)' 'Whether the respondents made false or misleading representations concerning rights and remedies under s 53(g) of the TPA']

Ratio Decidendi

The linked nature of the Merchant and Rental Contracts, and the requirement that merchants enter both contracts to access the Bill Express Payment System, constituted prohibited third line forcing under s 47(1) and (6) TPA. The respondents' representations that merchants would be fully subsidised or have no net cost were misleading or deceptive in contravention of s 52, due to non-disclosure of risks and the unilateral variation of subsidies. Clauses purporting to exclude statutory rights and remedies contravened s 53(g) by falsely representing merchants' rights under the contracts and the TPA.

Court Disposition

Declarations granted as to contravention of ss 47(1), 52, and 53(g) of the Trade Practices Act 1974 (Cth) by the First and Second Respondents; order that a copy of the reasons be retained for s 83 purposes; further relief (such as voiding contracts) refused.

Orders

  • ['Declarations that BXP and TBI engaged in exclusive dealing (third line forcing) between 2003 and July 2008, contravening s 47(1) TPA.' 'Declarations that BXP and TBI engaged in misleading or deceptive conduct between 2005 and July 2008, contravening s 52 TPA, by making certain statements without disclosing risks.'...