Application by Flexigroup Limited [2020] ACompT 1

Application by Flexigroup Limited [2020] ACompT 1

ASIC, RateSetter and CALC each had a sufficient connection with the subject matter of the proceeding and could assist the Tribunal. Flexigroup's proposed limitation based on s 101(1A) was rejected because s 109(2) could not be used to override the statutory requirement that all interveners consent to a consent determination, and deferring intervention for that reason would be inconsistent with the legislative intent. RateSetter and CALC were permitted to intervene subject to the Tribunal's power to control the nature and extent of their participation to manage duplication, cost and evidentiary utility.

Jurisdiction
Australia
Judgment Date
16 March 2020
Procedural Posture
Application for Review of Determination Made by the Australian Competition and Consumer Commission Under S 101 of the Competition and Consumer Act 2010 (cth) / Determination of Applications for Leave to Intervene and Variation of Directions
Outcome
Applications for intervention granted; procedural directions varied.
Legal Topics
['authorisation' 'intervention in Tribunal Proceedings' 'new Energy Tech Consumer Code' 'buy Now Pay Later Finance' 'consent Determination']
['competition and Consumer Law' 'trade Practices'] ['authorisation' 'intervention in Tribunal Proceedings' 'new Energy Tech Consumer Code' 'buy Now Pay Later Finance' 'consent Determination']

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Procedural Posture

Application for Review of Determination Made by the Australian Competition and Consumer Commission Under S 101 of the Competition and Consumer Act 2010 (cth) / Determination of Applications for Leave to Intervene and Variation of Directions

Legal Issues

  1. 1 ['Whether the Australian Securities and Investments Commission should be permitted to intervene under s 109(2) of the Competition and Consumer Act 2010 (Cth).' 'Whether RateSetter Australia RE Limited should be permitted to intervene under s 109(2) of the Competition and Consumer Act 2010 (Cth), and on what conditions.' 'Whether the Consumer Action Law Centre should be permitted to intervene under s 109(2) of the Competition and Consumer Act 2010 (Cth), and on what conditions.' 'Whether the possibility of a consent determination under s 101(1A) justified deferring or limiting intervention by RateSetter Australia RE Limited and the Consumer Action Law Centre.' 'Whether existing procedural directions should be varied.']

Ratio Decidendi

ASIC, RateSetter and CALC each had a sufficient connection with the subject matter of the proceeding and could assist the Tribunal. Flexigroup's proposed limitation based on s 101(1A) was rejected because s 109(2) could not be used to override the statutory requirement that all interveners consent to a consent determination, and deferring intervention for that reason would be inconsistent with the legislative intent. RateSetter and CALC were permitted to intervene subject to the Tribunal's power to control the nature and extent of their participation to manage duplication, cost and evidentiary utility.

Court Disposition

Applications for intervention granted; procedural directions varied.

Orders

  • ['The Australian Securities and Investments Commission be granted leave to intervene in the proceeding.' "Subject to the Tribunal's power to direct the nature and extent of its participation in the proceeding, RateSetter Australia RE Limited be granted leave to intervene in the proceeding." "Subject to the...