Consumer Protection

• Author: International Law Group
• Pages: 190-193

Page 190

The parties settled the matter based on Respondents giving the ACCC an Undertaking pursuant to ß 87B of the TPA (Enforcement of Undertakings). Respondents undertook not to conduct the seminars and workshops in Australia without abiding by certain restrictions imposed by the ACCC to shield Australian consumers from what the ACCC deemed to be further misleading and deceptive practices.

The test of whether an entity has breached an ß 87B Undertaking is objective in the sense that intent of the party who breaches the Undertaking is not relevant.

The ACCC claims that Respondents have violated certain terms of the Undertaking it gave to the ACCC on April 24, 2006. Petitioner contends that the present application is urgent because Respondents are likely to continue transgressing the Undertaking when its representatives arrive in Australia in October 2007 to give further presentations relating to the products it offers for sale.

In Petitioner's view, the Court's power to grant interlocutory relief arises under ß 23 of the Federal Court of Australia Act 1976 (Cth) ( FCA ); it gives the Court "power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders ... as the Court thinks appropriate". It says that the TPA does not cabin the Court's jurisdiction to entertain this matter. Finally, it submits that the balance of convenience lies in favour of the Court exercising its power to make sure that Respondents comply with their Undertaking.

Respondents submit that they have complied with most of the terms of the Undertaking, and that any breaches were so minor that the Court need not exercise its discretion to grant the relief sought. They say that they have taken steps to ensure there are no further violations.

Respondents mainly maintain that the balance of convenience does not favour the ACCC because there has been no material harm or prejudice to the ACCC or its buyers. The agency's mere invocation of the public interest is not decisive; moreover, the breadth of the ACCC's Amended Application exceeds the scope and duration of the original Undertaking.

The judge generally rules in favor of the ACCC and explains his bases. "In this case, breaches of certain terms of the Undertaking given by Respondents are conceded. Specifically, these admissions relate to the terms of the Undertaking requiring Respondents (1) to ensure that the testimonials used in the presentations contained certain...