Ali v Australian Competition and Consumer Commission [2021] FCAFC 109

Procedural Posture

Appeal From Federal Court Decisions Concerning Misleading or Deceptive Conduct, Unconscionable Conduct, Breach of the Franchising Code of Conduct, Penalties, Injunctions, Disqualification and Redress / Full Court Appeal

Legal Issues

1. 1 ['Whether the primary judge erred in finding that the Charging Representation was made to franchisees other than those who gave evidence.' 'Whether evidence from franchisees, the appellants and documents supported findings of a system or pattern of unconscionable conduct.' "Whether Geowash's charging practices, including staged payments, commissions and use of funds for general expenses, were unconscionable under s 21 of the Australian Consumer Law." 'Whether Geowash breached the obligation of good faith in cl 6 of the Franchising Code of Conduct.' 'Whether the pecuniary penalties imposed exceeded the applicable statutory maximum or were manifestly excessive.' 'Whether the non-party consumer redress orders under s 239 of the Australian Consumer Law were within power and appropriate.' 'Whether the disqualification orders against the appellants were excessive.']

Ratio Decidendi

The Full Court dismissed the appeal because the primary judge was entitled on the whole of the evidence to find that Geowash, through Ms Ali and Mr Cameron, engaged in a dishonest system or pattern of conduct by representing that staged payments would be used for actual fit-out and set-up costs while intending to and in fact using substantial funds for sales commissions and general expenses. That conduct supported the findings of misleading or deceptive conduct, unconscionable conduct and breaches of the Franchising Code good faith obligation. The penalties, redress scheme and disqualification orders disclosed no appellable error and were not manifestly excessive.

Court Disposition

Appeal dismissed with costs.

Orders

• ['The appeal of each appellant be dismissed with costs.']