Full Court dismisses Volkswagen $125m penalty appeal

Wow! I didn't see this coming. The Full Federal Court has dismissed what was effectively a joint appeal by Volkswagen and the ACCC to reduce Judge Foster's $125 million penalty to the agreed Volkswagen / ACCC penalty of $75 million. The Full Court held that the $125 million penalty was ‘was not excessive, let alone manifestly excessive’.

Given that there is $50 million at stake you would expect a Volkswagen appeal but it looks like a very strong Full Federal Court bench, consisting of Justices Wigney, Beach and O’Bryan so I doubt the High Court would grant leave.

It is also a pretty embarrassing outcome for the ACCC who appear to have been off the mark in terms of penalty by a cool $50 million!

https://www.accc.gov.au/media-release/full-court-dismisses-volkswagen-125m-penalty-appeal

Superfone to pay $300,000 for making unsolicited calls and misleading consumers

 Superfone fined $300,000 on a turnover of $1 million = 30%

Telstra likely to be fined $50 million on a turnover of $27 billion = 0.18%

I think the numbers speak for themselves.

https://www.accc.gov.au/media-release/superfone-to-pay-300000-for-making-unsolicited-calls-and-misleading-consumers

Full Federal Court's decision on the Quantum unconscionability case

As expected the Full Federal Court has overturned Colvin J's incorrect intepretation of unconscionability in the Quantum case.

The Full Federal Court found that Colvin J was in error by holding that the taking advantage or exploitation of some vulnerability, disability or disadvantage of the person or persons to whom the conduct was directed was a necessary aspect of unconscionability within s 21 of the ACL (para 93)

The Court held at para 96 that:

Conduct by a commercial entity which, as here, systematically misuses its superior bargaining position by dishonestly misleading its counterparties and pressuring them by unjustified and unnecessary commercial requirements in a way that reflects a dishonest lack of good faith in undermining bargains previously reached in order to extract surreptitious and undisclosed financial benefits is against and offends an Australian business conscience.

I wonder how Colvin J's other unconscionable conduct case in Geowash is going to fare under Allsop CJ?

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC//2021/40.html

ACCC authorises Queensland Dairyfarmers' Organisation to implement 'Fair Go Dairy' licensing scheme

Not too sure why the ACCC authorised this scheme - I can't see any public benefit. Given there are no public benefits and clearly some public detriment in terms of excluding non-Queensland dairy farmers from the market and setting a miniumum gate price for milk, I don't think the scheme should have been authorised.

I wonder if one of the milk processors may decide to challenge the scheme.

https://www.accc.gov.au/media-release/accc-authorises-queensland-dairyfarmers-organisation-to-implement-fair-go-dairy-licensing-scheme

Australian Business Law Review, Vol 48, Part 6

 ABLR Vol 48, Part 6 is out. Four excellent articles and two excellent Section Notes on a wide range of legal issues.

* Doing Wrong for the Right Reasons: ASIC and Foreign Language Business Names by Timothy Magarry

* Off-duty Misconduct and the Employment Relationship: A Review of the Case Law by Dr Giuseppe Carabetta

* Criminalising Wage Theft – Some Observations on Deterrence, Enforcement and Compliance by Mark Lewis

* Carrying on Business in Australia: A Study of Court Judgments by Ian Ramsay and Mihika Upadhyaya

* A More Assertive Approach by ASIC to Using Information-Gathering Powers and Challenging Privilege Claims? by Michael Legg and Daniel Faber

I am very pleased to say that despite the challenges presented by COVID-19 the ABLR has been able to continue publishing high-quality editions throughout 2020, largely on time. I am very thankful to both the Section Editors and Editorial Board who contributed so much in writing and refereeing articles and also to Haydee de Guzman, Senior Portfolio Editor, Thomson Reuters for all her hard work and diligence.

Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS [2021] FCA 52

 Justice Wigney's decision has just come down - Wallenius Wilhelmsen Ocean AS convicted of cartel conduct and ordered to pay a fine of $24 million, after receiving a 20% discount for an early guilty plea.

The fines seems a bit on the low side to me particularly given the following observation by Wigney J:

296 Despite the somewhat puzzling absence of any direct or clear evidence of contrition or remorse, WWO should be sentenced on the basis that its prospects of rehabilitation are reasonable and that the prospect of it re-offending is low.

I can't see how Wigney J could conclude that the prospects of rehabilitation were reasonable in the absence of any evidence to that effect.

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0052

Australian Business Law Review, Vol 48, Part 5

 ABLR Vol 48, Part 5 has come out. This time four excellent articles and two excellent Section Notes on a wide range of legal issues - free speech, secondary boycotts, statutory unconscionable conduct, privacy and data protection regimes, social enterprise, equity crowdfunding, misuse of market power and blockchain technology.

* Free Speech and Secondary Boycott Activity in Australia by Anthony Gray

* An Examination of Legal Values in Statutory Unconscionable Conduct by Peter Toy

* The Illusion of Control by Radha M Pull ter Gunne (Radha Pull ter Gunne)

* Social Enterprise and Equity Crowdfunding - A Proposal to Share Legal Infrastructure by Dr Akshaya Kamalnath

* Misuse of Market Power: Improving the Australian SLC Model by Brent Fisse

* A Modern Approach to Regulation: Integrating Law, System Architecture and Blockchain Technology in Australia by Marcus Smith Marcus Smith

I hope you enjoy this edition of the ABLR.