Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (No 3)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 15 April 2021
• Neutral Citation: [2021] FCA 347
• Date: 15 April 2021

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (No 3) [2021] FCA 347

File number:	WAD 215 of 2019
Judgment of:	JACKSON J
Date of judgment:	15 April 2021
Catchwords:	CONSUMER LAW - application for remedies under the Australian Consumer Law - respondent company in business of hiring out four wheel drive vehicles - knowing involvement of second and third respondents ; CONSUMER LAW - misleading or deceptive conduct - false or misleading representations - website and certain emails represented that vehicles were fully insured - vehicles not fully insured - contract term giving discretion to first respondent not to make claim against insurer even if vehicle insured and instead claim damage from hirer - finding that respondents had engaged in misleading or deceptive conduct ; CONSUMER LAW - unfair contract terms - contract term permitted first respondent to track hire vehicles by global positioning system (GPS) - GPS data used to create reports alleging that hirers had engaged in driving behaviour which caused 'excessive wear and tear' - contract term allowing first respondent to deduct $500 from hirers' bonds per incident - contract term giving discretion to first respondent not to make claim against insurer even if vehicle insured and instead claim damage from hirer - contract term providing that hirers must not denigrate first respondent in any way after hire period had expired - terms found to be unfair ; CONSUMER LAW - unconscionable conduct - bonds retained after hire - aggressive emails advising customers of bond retention - emails threatened customers with litigation, referral to authorities on basis of GPS data - emails intended to intimidate customers into not challenging the retention of the bonds - conduct found to be unconscionable ; CONSUMER LAW - remedies - declarations including that contract terms are unfair - penalties - unknowable number of contraventions - course of conduct - non-party consumer redress orders
Legislation:	Acts Interpretation Act 1901 (Cth) s 15AB Australian Securities and Investments Commission Act 2001 (Cth) Part 2, Division 2 Bankruptcy Act 1966 (Cth) ss 58, 82 Competition and Consumer Act 2010 (Cth) ss 83, 155, 137H Schedule 2 (Australian Consumer Law) ss 2, 15, 16, 18, 21, 22, 23, 24, 29, 84, 87, 224, 232, 237, 238, 239, 243, 248, 250 Federal Court of Australia Act 1976 (Cth) s 21
Cases cited:	AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390 Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 5) [2012] FCA 908 Attorney‑General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 368 Australian Competition and Consumer Commission v Ashley & Martin Pty Ltd [2019] FCA 1436 Australian Competition and Consumer Commission v Black on White Pty Ltd [2004] FCA 363; (2004) 138 FCR 314 Australian Competition and Consumer Commission v Chrisco Hampers Australia Limited [2015] FCA 1204; (2015) 239 FCR 33 Australian Competition and Consumer Commission v CLA Trading Pty Ltd [2016] FCA 377 Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; (2014) 317 ALR 73 Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 5) [2019] FCA 1544 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513 Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267 Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 4) [2020] FCA 23; (2020) 376 ALR 701 Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 3) [2017] FCA 1018 Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 Australian Competition and Consumer Commission v Morild Pty Ltd [2017] FCA 1308 Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Australian Competition and Consumer Commission v Renegade Gas Pty Ltd (trading as Supagas NSW) [2014] FCA 1135 Australian Competition and Consumer Commission v Service Seeking Pty Ltd [2020] FCA 1040 Australian Competition and Consumer Commission v Smart Corporation Pty Ltd [2019] FCA 1603 Australian Competition and Consumer Commission v Sony Interactive Entertainment Network Europe Limited [2020] FCA 787; (2020) 381 ALR 531 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130; (2020) 381 ALR 507 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 Australian Securities and Investments Commission v Adler [2002] NSWSC 483; (2002) 42 ACSR 80 Australian Securities and Investments Commission v Citrofresh International Ltd (No 3) [2010] FCA 292; (2010) 268 ALR 303 Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1 Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; (2005) 148 FCR 132 Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193; (2002) 125 FCR 9 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 Director General of Fair Trading v First National Bank plc [2002] UKHL 52; [2002] 1 AC 481 Elan, Re Guild Enterprises Australia Pty Ltd v Cohen [2020] FCA 79; (2020) 142 ACSR 554 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Gaffney v Federal Commissioner of Taxation (1998) 81 FCR 574 IMF (Australia) Ltd v Sons Of Gwalia Ltd (Administrator...