Case: ACCC v Samton Holdings Pty Ltd &amp; Ors (2002) 117 FCR 301
Outcome: considered
ACCC v Samton Holdings Pty Ltd &amp; Ors (2002) 117 FCR 301 a Full Court of this Court considered the pre-history of s 51AA ([39] [42]); the text of s 51AA ([43] [45]); the way in which equity will intervene to prevent unconscionable behaviour and, in doing so, identified five categories of cases where equity will intervene and the relief it will provide ([46] [48]); and the scope of s 51AA ([49] [50]). Relevantly, in relation to the five categories, the Court observed at [48]: Under the rubric of unconscionable conduct, equity will: (i) Set aside a contract or disposition resulting from the knowing exploitation by one party of the special disadvantage of another. The special disadvantage may be constitutional, deriving from age, illness, poverty, inexperience or lack of education Commercial Bank of Australia Ltd v Amadio [(1983) [1983] HCA 14 ; 151 CLR 447]. Or it may be situational, deriving from particular features of a relationship between actors in the transaction such as the emotional dependence of one on the other Louth v Diprose [(1992) 175 CLR 62]; Bridgewater v Leahy [1998] HCA 66 ; (1998) 194 CLR 457. (ii) Set aside as against third parties a transaction entered into as the result of the defective comprehension by a party to the transaction, the influence of another and the want of any independent explanation to the complaining party Garcia v National Australia Bank Ltd [1998] HCA 48 ; (1988) 194 CLR 395. (iii) Prevent a party from exercising a legal right in a way that involves unconscionable departure from a representation relied upon by another to his or her detriment Waltons Stores (Interstate) Ltd v Maher [(1988) [1988] HCA 7 ; 164 CLR 387] ; Commonwealth v Verwayen [(1990) [1990] HCA 39 ; 170 CLR 394]. (iv) Relieve against forfeiture and penalty Legione v Hateley [(1983) [1983] HCA 11 ; 152 CLR 406] ; Stern v McArthur [(1988) [1988] HCA 51 ; 165 CLR 489]. (v) Rescind contracts entered into under the influence of unilateral mistake Taylor v Johnson [(1983) [1983] HCA 5 ; 151 CLR 422]. Each of these categories of case (the list may not be exhaustive) involves the identification of unconscionable conduct, albeit its content and degree will vary according to the category. It is a term which has various shades of meaning according to its context. There are different thresholds of conduct in various categories, all of which may be described as unconscionable G Dal Pont, "The Varying Shades of 'Unconscionable' Conduct Same Term, Different Meaning" (2000) 19 Aust Bar Rev 135 at p 165. I am of the view that the Access Agreement did not result from the knowing exploitation by Telstra of any special disadvantage of Optus whether constitutional or situational: the first category referred to in Samton Holdings ([48]). I am also of the view that this is not a case where equity needs to intervene to prevent Telstra from exercising a legal right in a way that involves unconscionable departure from a representation relied upon by Optus to its detriment: the third category referred to in Samton Holdings ([48]). The other categories there referred to are irrelevant. While the Full Court itself acknowledged the list may not be exhaustive, the fact that the terms of the Access Agreement were ultimately concluded in the way they were such that the conduct of Telstra which is impugned in this case was found to be a breach of contract would suggest that Optus was not only aware, which it undoubtedly was, that Telstra would have access to Optus' traffic information but that its disadvantage in this respect it did not have access to Telstra's traffic information was nevertheless counter-balanced by the restrictions on the use and disclosure of such information. The fact that Telstra acted in contravention of those restrictions does not make its conduct unconscionable. It follows that I also decline to find that Telstra engaged in unconscionable conduct in contravention of s 51AA of the TPA. I will direct the parties to bring in short minutes of order to give effect to these reasons and the reasons published on 30 April 2009, as well as to move the proceeding to its next phase. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 10 July 2009 Counsel for the Applicant: Mr RM Smith SC and MR C Dimitriadis Solicitor for the Applicant: Baker &amp; McKenzie Counsel for the Respondent: Mr CRC Newlinds SC and Mr IR Pike Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: 7, 8 and 10 October 2008 Date of Judgment: 10 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/728.html