Australian Competition and Consumer Commission v Mazda Australia Pty Limited

• Jurisdiction: Australia Federal only
• Judgment Date: 23 March 2023
• Neutral Citation: [2023] FCAFC 45
• Date: 23 March 2023
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Mazda Australia Pty Limited [2023] FCAFC 45

Appeal from:	Australian Competition and Consumer Commission v Mazda Australia Pty Ltd [2021] FCA 1493 Australian Competition and Consumer Commission v Mazda Australia Pty Ltd (No 2) [2022] FCA 250
File numbers:	VID 195 of 2022VID 196 of 2022
Judgment of:	MORTIMER, LEE AND HALLEY JJ
Date of judgment:	23 March 2023
Catchwords:	CONSUMER LAW – misleading or deceptive conduct – false or misleading representations – appeal – where primary judge found Mazda Australia Pty Limited (Mazda) contravened s 18(1) and s 29(1)(m) of the Australian Consumer Law (ACL) by making false representations concerning existence or effect of consumer guarantees, rights or remedies and false representations that it had reasonable grounds for expressing opinions that nine consumers who had purchased Mazda vehicles not entitled to refund or replacement vehicle at no cost to them under ACL (misrepresentation case) – where false representations were found to arise by implication – where consideration of whether a representation that a party has reasonable grounds for expressing opinion should be approached from perspective of target audience – appeal dismissed ; CONSUMER LAW – unconscionable conduct – where misrepresentation case provided foundation for unconscionable conduct case – appeal – where primary judge found Mazda did not contravene s 21 of the ACL – where no dishonesty or systemic conduct case alleged – where Australian Competition and Consumer Commission contends primary judge failed to use correct judicial technique to assess unconscionability, give sufficient weight to relevant findings and provide adequate reasons – where primary judge faced with unenviable task but ultimately did not provide sufficient reasons – where majority conclude independently of primary judge that Mazda’s conduct does not sufficiently depart from acceptable commercial behaviour to contravene s 21 of the ACL – appeal dismissed
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) s 12CB Competition and Consumer Act 2010 (Cth), Sch 2 (Australian Consumer Law) ss 18, 21, 22, 29, 54, 259, 260, 263 Federal Court of Australia Act 1976 (Cth) s 30
Cases cited:	Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2021) 287 FCR 388; [2021] FCAFC 121 Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38 Australian Competition & Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634 Australian Competition and Consumer Commission v Dateline Imports Pty Ltd [2014] FCA 791 Australian Competition and Consumer Commission v Dateline Imports Pty Ltd [2015] FCAFC 114 Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672 Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2018] FCAFC 96 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 Australian Competition and Consumer Commission v Medibank Private Ltd (2018) 267 FCR 544; [2018] FCAFC 235 Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; [2021] FCAFC 40 Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; [2019] HCA 18 Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liquidation) (No 3) (2020) 275 FCR 57; [2020] FCA 208 Australian Securities and Investments Commission v GetSwift Limited (Liability Hearing) [2021] FCA 1384 Australian Securities and Investments Commission v National Exchange Pty Ltd (2005) 148 FCR 132; [2005] FCAFC 226 Beale v Government Insurance office of New South Wales (1997) 48 NSWLR 430 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 39 Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404; [2017] FCAFC 75 Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186 DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 Good Living Company Pty Ltd v Kingsmede Pty Ltd and Another (2021) 284 FCR 424; [2021] FCAFC 33 Hunter v Transport Accident Commission [2005] VSCA 1 Inn Leisure Industries Pty Ltd (Provisional Liquidator Appointed) v DF McCloy Pty Ltd (No 1) (1991) 28 FCR 151 Ireland v WG Riverview Pty Ltd (2019) 101 NSWLR 658; [2019] NSWCA 307 Jenyns v Public Curator of Queensland (1953) 90 CLR 113; [1953] HCA 2 Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; [2019] FCAFC 53 Kumova v Davison (No 2) [2023] FCA 1 Mann v Mann (1957) 97 CLR 433; [1957] HCA 68 NSW Police Force v Winter [2011] NSWCA 330 Paciocco v Australian and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50 Pettitt v Dunkley [1971] 1 NSWLR 376 Singh v Minister for Immigration and Border Protection [2019] FCA 781 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 TechnologyOne Limited v Roohizadegan [2021] FCAFC 137 The Juliana (1822) 2 Dods 504 at 522; 165 ER 1560 Unique International College Pty Ltd v Australian Competition and Consumer Commission (2018) 266 FCR 631; [2018] FCAFC 155
	Senate Standing Committee on Economics, The need, scope and content of a definition of unconscionable conduct for the purposes of Part IVA of the Trade Practices Act 1974 (December 2008)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Economic Regulator, Competition and Access
Number of paragraphs:	655
Date of hearing:	1-2 August 2022
Counsel for the Appellant in VID 195 of 2022 and the Respondent in VID 196 of 2022:	Mr N De Young KC with Ms N Hickey and Ms A Garsia
Solicitor for the Appellant in VID 195 of 2022 and the Respondent in VID 196 of 2022:	Webb Henderson
Counsel for the Respondent in VID 195 of 2022 and the Appellant in VID 196 of 2022:	Mr M Scott KC with Mr M Hoyne
Solicitor for the Respondent in VID 195 of 2022 and the Appellant in VID 196 of 2022:	Mills Oakley

ORDERS

VID 195 of 2022

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