Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [2000] FCA 2

Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [2000] FCA 2

Section 51AA of the Trade Practices Act 1974 is constitutionally valid; its operation does not offend the separation of powers because it prohibits conduct recognised as unconscionable by the common law as determined by judicial decision, and does not confer law-making power on the courts.

Jurisdiction
Australia
Judgment Date
14 January 2000
Procedural Posture
Civil / Judgment on Preliminary Constitutional Question
Outcome
Section 51AA is valid; preliminary questions answered accordingly; no order as to costs on this issue.
Legal Topics
['separation of Powers' 'unconscionable Conduct' 'statutory Interpretation' 'constitutional Validity' 'remedies Under Trade Practices Act']
['constitutional Law' 'equity' 'trade and Commerce'] ['separation of Powers' 'unconscionable Conduct' 'statutory Interpretation' 'constitutional Validity' 'remedies Under Trade Practices Act']

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Procedural Posture

Civil / Judgment on Preliminary Constitutional Question

Legal Issues

  1. 1 ['Whether section 51AA of the Trade Practices Act 1974 is constitutionally valid' 'Whether s 51AA offends the separation of legislative and judicial powers' 'Whether s 51AA adopts unwritten law and confers statutory force on common law' 'Comparison between s 51AA and s 12 of the Native Title Act 1993 (Cth)']

Ratio Decidendi

Section 51AA of the Trade Practices Act 1974 is constitutionally valid; its operation does not offend the separation of powers because it prohibits conduct recognised as unconscionable by the common law as determined by judicial decision, and does not confer law-making power on the courts.

Court Disposition

Section 51AA is valid; preliminary questions answered accordingly; no order as to costs on this issue.

Orders

  • ['Section 51AA of the Trade Practices Act 1974 or any part of that section is not invalid.' 'If any part of s 51AA is invalid, is that part severable? Not necessary to answer.']