Australian Competition and Consumer Commission v Ashley & Martin Pty Ltd (No 2) [2019] FCA 1739

Australian Competition and Consumer Commission v Ashley & Martin Pty Ltd (No 2) [2019] FCA 1739

The impugned terms in the Ashley & Martin Pty Ltd Personal RealGROWTH Program contracts are unfair within the meaning of s 24 of the Australian Consumer Law as they require consumers to pay for medical treatment programs before having opportunity to receive and consider medical advice and give or refuse informed...

Source-derived case information.

Parties
Applicant: Australian Competition and Consumer Commission; Respondent: Ashley & Martin Pty Ltd
Jurisdiction
Australia
Judgment Date
24 October 2019
Procedural Posture
Consumer Law Relief Hearing / Relief (post Liability Findings), Final Orders
Outcome
Declarations made that terms are unfair and void; redress order for refunds to eligible consumers; costs order in favour of ACCC.
Legal Topics
Unfair Contract Terms, Consumer Redress, Declaratory Relief, Opt in Refund Scheme
Consumer Law Unfair Contract Terms Consumer Redress Declaratory Relief Opt in Refund Scheme

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Summary, issues, holding and outcome

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Parties

Australian Competition and Consumer Commission

Applicant

Ashley & Martin Pty Ltd

Respondent

Procedural Posture

Consumer Law Relief Hearing / Relief (post Liability Findings), Final Orders

Legal Issues

  1. 1 Whether contract terms used by Ashley & Martin Pty Ltd were unfair contract terms under s 23 and s 24 of the Australian Consumer Law
  2. 2 What declarations and redress orders are appropriate as relief for affected consumers

Ratio Decidendi

The impugned terms in the Ashley & Martin Pty Ltd Personal RealGROWTH Program contracts are unfair within the meaning of s 24 of the Australian Consumer Law as they require consumers to pay for medical treatment programs before having opportunity to receive and consider medical advice and give or refuse informed consent. These terms are void under s 23. It is appropriate, applying the statutory regime and principles from established case law, to grant declarations and to order a non-party consumer redress scheme whereby eligible former patients are offered refunds corresponding to payments made under the contracts, subject to specified conditions and exclusions, as such orders redress the...

Court Disposition

Declarations made that terms are unfair and void; redress order for refunds to eligible consumers; costs order in favour of ACCC.

Orders

  • Declarations that impugned contract terms in Personal RealGROWTH Program contracts (codes AU PRG01.10, AU PRG09.16, AU PRG12.16) are unfair, void under ACL.
  • Order for Ashley & Martin Pty Ltd to conduct a review, notify relevant patients and provide refunds as set out in orders 4–7.