Wednesday, 12 September 2018

Has ASIC dropped the ball on record Westpac penalty?

Judge baulks at record $35m Westpac fine

I must admit I don't like criticising ASIC but sometimes I just can't help it!

How can ASIC hope to secure a record $35 million for breaches of the National Credit Act, which is twice as large as the previous largest fine, when they put forward agreed facts which state that Westpac's conduct was due to an "innocent mistake"?

ASIC has to ensure that the agreed facts support the proposed penalty and by far the biggest consideration in the severity of a pecuniary penalty is whether the conduct was intentional or not - even recklessness can support a significant penalty.

However, ASIC are now facing the distinct possibility that Justice Perram will not accept the agreed penalty of $35 million for an "innocent mistake" and instead impose a significantly lower penalty.

Operation and Effectiveness of the Franchising Code of Conduct

Our SME Committee has been invited to appear at a public hearing into the Operation and Effectiveness of the Franchising Code of Conduct which is being conducted by the Parliamentary Joint Committee on Corporations and Financial Services.

Hank Spier, a longstanding member of our Committee, will be appearing on behalf of our Committee on 21 September 2018.

Four years too late?

Volkswagen undertakes to fix consumer guarantees approach

While it great news that VW is finally fixing its approach to consumer guarantees, the question is why did it take so long.

I remember writing to the ACCC in 2014 on behalf of a probono client pointing out that Skoda, a subsidiary of VW, was failing to honour its consumer guarantee obligations under the ACL. I also provided the ACCC with compelling evidence of Skoda's misrepresentations about consumer guarantee rights.

In response to my complaint letter, I received the following No Further Action letter. Four years later the ACCC has been able to get VW to do the right thing in relation consumer guarantees.

PS: Fortunately for the client, I was able to assist him with a claim against Skoda in the NSW Civil and Administrative Tribunal and he was successful in securing a full refund.

Westpac to pay $35 million penalty

Westpac admits to breaching responsible lending obligations when providing home loans and a $35 million civil penalty.

That's more like it ASIC! 

Well done for holding out for a substantial penalty!

This also means that ASIC has almost recovered the same amount of penalties in the first two months of the 2018-2019 financial year that they recovered in the whole of the 2017-2018 financial year. Last year total recoveries were only $35.1m whilst this year ASIC has already already recovered $35m.

Terceiro Legal Consulting signs up to National Pro Bono Target

I decided to sign up my firm to the National Pro Bono Target.

I should have done this years ago given the amount of pro bono work I do, which has probably averaged around 100 hours a year for many years now. 

I have to say that pro bono matters are always very rewarding and often much more interesting that my regular work!

For example, I assisted in a military compensation matter that went all the way to the High Court, as well as acting for a whistleblower in a major corporate corruption matter which is still going through the courts!

Certainly beats reviewing incredibly dense thirty page IT contracts on the lookout for potentially unfair contract terms (no offence intended to either past, present or future clients)!

Special Children's Christmas Party

Happy to be supporting the Special Children's Christmas Party again in 2018. We first started supporting this event seven years ago, in 2011.

Independent Review of the Food and Grocery Code of Conduct

I recently assisted in the preparation of the submission of the Small and Medium Enterprise Committee of the Law Council of Australia in response to the Draft Report into the Independent Review of the Food and Grocery Code of Conduct. Our Committee is calling for the Grocery Code to be made a Mandatory Code. A copy of our submission is available here:

ACCC appoints CFMMEU as ethics cop (seriously!)

Code for ethical treatment of clothing workers reauthorised

I must admit I am a bit concerned and surprised that the ACCC authorised a Code which includes a requirement that businesses submit to audits undertaken by the CFMMEU to check that those businesses are complying with their legal obligations to workers. Submitting to these audits is a condition of the business being accredited under the Code.

I would have to question whether the CFMMEU are an appropriate organisation to be conducting such audits, particularly given the litany of adverse court results against them in recent times which raise serious questions about the CFMMEU's own ethics. These audits should be conducted by either a government body (Fair Work Ombudsman) or a separate company, such as is the case with Australian Made accreditation.

Dodging a bullet!

Franchisee rights denied in Husqvarna code breach

I was a bit puzzled by the ACCC's settlement against Husqvarna Australia (which is part of the Swedish Husqvarna Group with annual revenues of $6 billion).

Husqvarna's Australian subsidiary has been claiming for well over 10 years that its agreements with 343 dealers are not franchise agreements, when that has not been the case. Furthermore, Husqvarna has terminated dealers without complying with the Franchising Code of Conduct (Code).

Husqvarna also has not reviewed its "franchise" agreements to identify potentially unfair contract terms, despite the law changing two years ago.

Finally, the company didn't even have a compliance program in place.

Despite all of this conduct, the ACCC decided not take any legal action against Husqvarna but rather to settle this raft of contraventions with a s87B undertaking.

On the other hand, the ACCC takes legal action against much smaller franchisors, with little brand recognition, that have been engaging in relatively minor contraventions of the Code for very short periods of time.

Such inconsistency in terms of the ACCC's enforcement approaches makes our job as lawyers particularly difficult. How do I explained the Husqvarna settlement to the next small business client who gets taken to court by the ACCC?