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takadasaiko · 4 years ago

Text

Aftermath (a Veronica Mars one shot)

FFN II AO3

Part of my Spanning Years, Continents series

Notes: I know these one shots were supposed to be movie to the beginning of S4, but this idea popped into my head a while back and I wasn't able to shake it, so here we go. It does take place after the S4 finale, but with the exception of Logan getting to live because I'm not a monster.

Summary: In the aftermath of Epner's last bomb, Logan struggles with recovery and what it cost him.

Aftermath

It wasn't that the waves were much louder on the ground floor than the third, but in the early hours of the morning when the rest of the world was silent, they sounded like they were. It was just one of the many things that Veronica had had to get used to in the new apartment over the course of the last few months. They'd been lucky, she knew, to catch an empty unit a few sections down from their own and on the ground floor so that Logan didn't have to struggle up three flights freshly home from the hospital. He would have given it the same stubborn effort that he'd given everything since the bomb had gone off, leaving him clinging to life without great odds at pulling through. He had, though. Stubbornly. Just like he had stubbornly pushed through surgeries and rehab. She had no doubt that he would have been willing to climb the stairs if that's what had needed to happen, but she hadn't wanted him to.

Anyway, this unit had a washer and dryer, she'd told him when he'd rolled his eyes at her from the hospital bed. It all worked out.

It had nothing to do with the overwhelming fear and guilt she had felt at seeing him lying on the street below their old unit or the fact that every time she risked a glance out their bedroom window she saw it happen all over again. The glass cutting her face and the pressure from the bomb sending her stumbling back. It had sent him flying too, but instead of a bed to catch his fall, he'd been tossed like a ragdoll into the building itself. The collision with the unyielding wall had broken bones and given him a bad concussion while shrapnel had done the rest of the damage. Nearly six months later he still wasn't back up to speed and the doctor warned him that there was a good chance he never would be.

Not that Logan listened to him. That could be for better or worse. The doctors had also told Veronica to make sure her new husband's affairs were in order and he'd proved them wrong there.

Veronica pulled in a deep breath, the sound of the waves doing nothing to lull her back to sleep with those thoughts rattling around in her brain. She turned in the bed, hoping that holding onto him and feeling his steady heartbeat would help ease her nerves, but found only empty space and rumpled sheets on his side. She sat up ramrod straight in the bed they shared, looking around the room still drenched in pre-dawn shadows. "Logan?"

Shuffling could be heard from the other side of the bathroom door now connected to their bedroom and, for the first time, she saw the light peeking out from under it. It opened and Logan shot her a curious look. "Hey. You okay?"

Veronica squinted against the fluorescent light shining into the bedroom and Logan seemed to notice as he reached back to switch it off. She watched - noting the very subtle limp that still worked its way into his step some mornings - as he made his way back to the bed and eased himself down. "You okay?" he had asked again, his brows drawn together with the question.

"Yeah. Yes. Just —" Just what? Thought he was really gone? Thought that the last six, nearly seven months had been a kinder dream to replace a realty her mind couldn't accept? It all sounded silly now that she was actually awake, so she forced a smile and rocked forward onto her knees. Her fingers teased at his hairline and the burn scars there, gently guiding him in until he met her halfway for a kiss. She leaned into it, feeling one of his hands against the side of her face and she tilted them both over so that he landed on his back, Veronica leaned over him with an impish smile. There was one way to banish those recurring fears. "I love you," she said firmly.

His thin lips quirked up into that lazy, amused smile she loved and he brushed a stray lock of hair behind her ear. "I love you too, but I need to finish getting ready if I'm going to make it down to base by seven."

Her pre-caffeinated brain spun trying to figure out why he needed to be down at the base at all that day before it slammed head first onto the answer. "You have your physical today."

"Yep," he answered, kissing the tip of her nose and his tone a lot cheerier than she would have expected. His last physical had not gone as well as the Navy doctor - or Logan - had hoped. After about a day of moping around the apartment Logan had very pointedly brushed it off as still healing and buckled down to work even harder than before. Wanting it - needing it - had been what had gotten him through ROTC, through OCS, and continuing through one of the toughest military training programs there was, but it might not be enough to keep it now. Veronica had heard his physical therapist remind him the last time she'd picked him up that sometimes there was just no bouncing back to before an injury.

"You want me to go with you?" she asked, hoping he wouldn't read too much into the offer.

"Aren't you working a case?"

He rolled a little and she slid off of him, letting him up. "Yeah, but I can make time if you want me there."

"I'll be okay," he promised, leaning in to steal a quick kiss. "How about you make reservations and we'll celebrate good news at dinner tonight?"

"Logan —"

"It's fine. I've got this."

She watched him carefully, and damn it if he hadn't convinced himself of it. She just hoped he was right.

Slowly she unfolded and stood on the bed, stepping to the edge so that she could wrap her arms around his neck and look down on him, her fingers teasing his short hair. She took a breath and went in with him. "Yeah you do. We'll celebrate good news."

"You keep looking at me like that, Mrs Echolls and I'm not gonna make it to base," he muttered, mischief dancing through his eyes.

Veronica snorted and released him. "Then go get 'em, Mr Mars."

And on the heels of a joke they'd held onto throughout his recovery, he turned to finish getting ready to drive down to San Diego.

-------------

She knew the moment she saw him walk through the office door that the news had been less than he'd hoped for. They canceled the reservations and went home with takeout and a bottle of wine. He didn't talk. No quips, no brushoffs, not even an honest opinion or an explanation of exactly what the doctor had said or what it meant. Veronica didn't know if they were forcing him into retirement - or was it discharging him? She wasn't entirely sure - or if they'd pushed the decision down the line. His squad had already been deployed without him two months earlier - this time for a longer tour - and while she hated the idea of him shipping out to join them, the idea of him losing the job he loved so much - because of hers, the pesky thought tried to push its way to the forefront - wasn't any better. Sure, he'd be safer, but he loved what he did. He'd tried to describe the way it felt to fly his jet to her one time. The rush of an aerial dogfight, the thrill of hitting supersonic, and the way he could trust that his Wizzo Dave Riley had his back, both literally and figuratively. Even when his duties had shifted in the last couple of years and he found himself with boots on the ground from time to time, the people he trusted were right there with him. "They're family," he'd explained one time and she knew what that meant to him.

Now she was afraid that he'd lost that and she had no idea what to say. She'd never been particularly good at finding the right words to fill the awkward silence following a disaster she couldn't fix. She was good in a fight. She was good on a case. Something winnable. This…. she couldn't do anything for him besides be there and support him, but that never felt like enough. Too often she brushed past, opting instead to focus on anything tangible, but not here. She couldn't do that to him here.

Logan had barely touched the slice of pizza sitting in front of him, but his wine glass was almost empty. Veronica reached over to the bottle and poured the same amount she tended to reserve for his impromptu deployments: up to the lip of the glass. He shot her a look at that and she shrugged, finally pulling a mirthless snort that was close to a chuckle as he was capable of giving her in that moment. He reached over and she took his hand readily, feeling his fingers close around hers, his wedding band cool against her skin. He heaved a sigh, squaring his shoulders a little as he started to speak. "You know, right after I woke up in the hospital my first thought was shit, I bet that explosion just fucked my hearing. Woulda grounded me instantly."

"You got cleared on that three visits ago," Veronica murmured.

"Right? Didn't lose a limb, didn't damage my eyes or ears. I was lucky. I know I was lucky." She shifted on the bar stool and reached up tentatively, her freehand resting on his thigh. He tried for a smile and failed miserably. "I just couldn't pass the physical."

The words were like a knife to the gut and Veronica tightened her hold with both hands, feeling his own fingers around hers and he squeezed his eyes shut. He was done. They were taking his wings. They were taking the thing from him that had helped him find purpose in and that he'd devoted his adult life to.

She had taken it.

Veronica scooted off the stool and wrapped her arms around him, her forehead pressed against his arm as hot tears streaked down her cheeks. She felt as much as she heard him choke back a sob as he reached to hold onto her arm, his entire body trembling under the strain of it all. He'd fought so hard, but even he couldn't fight hard enough to win this one.

"I'm so sorry," she heard herself say, the words tumbling out again and again, faster and more desperate each time until he turned on his seat and suddenly he was standing there, his arms around her too and pulling her in.

He didn't say anything and her apologies eventually dwindled to get swallowed up by the sobs that still shook her. She felt his hand tangled in her hair, though, stroking it gently and he had her pulled close in that way that had always been meant to comfort. Even now, even after being responsible for this, he was trying to comfort her in whatever way he could manage. It wasn't fair.

She felt him pull in an unsteady breath and kiss the side of her head before leaning back. His eyes were rimmed red, the lines in his face a little deeper than usual with the strain of trying to hold himself together. "Veronica," he said firmly, even if his voice was rough. He waited until she met his gaze. "This is not your fault."

"Bullshit," she managed and swallowed hard, determined not to let another wave of sobs break free. "He was after me and he nearly killed you. I knew. Back in college I knew how dangerous this was. It's why I left. It's why I didn't come back until…"

"Till I asked you to."

"I knew this job was dangerous. Not just for me, but for everyone around me. Everyone I love. I went back to it anyway. I could have used my degree at a firm in San Diego or LA and lived here, but I was….so selfish. I knew I was putting everyone -" No, that's not right, Mars. If you're going to start, you better damn well own it."That I was putting you in danger. I did it anyway. I did this."

"No," he choked out, fresh tears building in his brown eyes and she hated that even now he was trying to defend her.

"This is my fault!" she shouted and lost the battle with her own will as she folded forward, unable to drag in enough air to satisfy her lungs.

He pulled her back in and held her close. "Don't ever apologize to me for being who you are. You're good at what you do and I…. I wish it weren't as dangerous as it is. You know I wish it wasn't, but that's for you. What happened to me is Epner's fault, not yours." She felt his finger under her chin, guiding her to look at him again. "You hear me?"

"Yeah," she said smally.

"You believe me?"

"I want to."

That pulled the tiniest of smiles from him and he leaned forward, kissing her forehead. "I love you. The Navy was everything once, but you…. I love you. I've loved you over half my life."

Veronica sniffed hard. "What now?"

He leaned down, catching her lips with his like that was his answer, and the moment she kissed him back he was lifting her off the floor. Veronica wrapped her legs around him and she could taste their tears in the kiss as he carried her back to the bedroom. He wasn't going to magically be okay with losing his career just like she wasn't going to instantly be able to - appropriately or not - redistribute the guilt she was feeling onto Penn Epner, but she could be there for him. And maybe, in time, she'd find a way to be a little better at that.

---------

The world didn't stop just because Logan felt like it should have. There were things to do, papers to sign, and - worst of all - a call he dreaded making. Thankfully he managed to hold it together on the Skype call with his squad, even if Riley of all people looked on the verge of breaking down. Riles wasn't the only one that reminded him that just because he didn't ship out with them didn't make him any less their family or them his.

Veronica spent the first few days after he got the news close by. She didn't ask him to talk about it, but listened when he wanted to . Even that couldn't go on forever, though, and eventually she started slipping out to the office. The bombing case had put Mars Investigation on the map even outside of Neptune and calls were coming in from all of the country. She wasn't taking anything out of town just yet, but Keith wasn't able to carry to load himself, even with the adjustment to his medication that had helped his memory issues. It was fine. Probably better than fine. Hopefully it meant that she was starting to accept that this really wasn't her fault.

Logan wasn't sure how long a person was supposed to take to mourn the loss of their career, but he was pretty sure he was due at least a few more days of moping. Dick hadn't agreed with him on that and had shown up on his doorstep with a surfboard and a chest full of beer that morning to drag him out to the beach. Well, it had always helped him clear his head when he was younger.

It was bordering on noon when he and Dick trudged their way back to where they'd left their things to find Veronica had brought her own beach towel and was stretched out with a magazine on cameras. She flashed him a bright smile. "Hiya, handsome."

"Always knew you had a thing for me, Ronnie," Dick chirped at his side and Logan rolled his eyes, elbowing the other man in the ribs.

"Hey. You calling it a day already? Careful, or someone's going to accuse you of keeping '09er hours."

"Well, I did marry one," she answered him with a wink.

Dick snorted and Logan elbowed him again before he had a chance to add to his earlier comment. He feigned injury. "That's what I get for trying to cheer you up, man."

Logan's lips stretched into an almost-smile. "Thanks."

"Anytime." Dick turned his attention back to Veronica. "You got him?"

"I do indeed," she answered cheerfully and popped to her feet. "You -" she directed at Logan this time - "go hop through the shower, then I'm kidnapping you."

"What for?"

"You'll see."

He glanced at Dick, looking for any hint he might give, and the blond shrugged.

"You think I'm dumb enough to give him details?" his wife laughed. "C'mon. We're on the clock."

Logan gave up trying to figure it out and did as he was told. Twenty minutes later he was showered and dressed, being ushered out to the convertible he'd bought four months before when he'd been cleared to drive again and it became clear that Veronica couldn't continue giving up her car or all of her time to make sure he made all of his doctors' appointments. He tried to swipe the keys from her, but she just smirked as she hopped into the driver's seat. "You don't know where we're going."

"Would if you'd tell me."

"Where's the fun in that?"

They worked their way through the back roads and he could tell she was trying to throw him off, but he knew the town too well and recognized the roundabout path she was taking to the private airport on the edge of town that Duncan's family used to fly their private plane out of. He didn't bother asking why, but settled into the passenger seat a little deeper and tried to push back the twinge of pain that the roar of a Gulfstream climbing overhead stirred in him.

"Veronica…" he started, suddenly finding himself utterly sapped of energy and wanting nothing more than to go home. They had come out here over the years and watched the planes coming and going. Veronica didn't get nearly as much out of it as he did, but he had loved to go on and on about them, always teasing her that he was going to buy some little single engine one day. She had rolled her eyes at him and told him not to even try it. He'd come close a couple of times, but the judgement would have been strong if he had.

"Trust me?"

He sighed, giving her a sharp nod.

They pulled around towards the hanger and parked off to the side. Veronica kept glancing at him, like she was constantly trying to gauge his mood. He could have saved her some time if she'd just asked: worse by the minute. "I'm really not in the mood to watch them."

"Good, because I thought you might want to fly one." She motioned to where a late 90's model Bonanza sat out on the runway. "You said that you can still fly, just not like the Navy needs you to be able to. I did some research and talked to Riley to make sure I understood everything correctly. He said you had gotten certified in a Bonanza several years ago and all you'd need to do to… re-certify?"

"Get current," he corrected and she nodded.

"Right, that's what he called it."

"Yeah, I just have to do what they call touch-and-goes. Three take offs and landings."

"Super easy, right?"

"Yeah." He felt his lips quirk upward despite his best efforts. "How long do we have her?"

"Unless Riley lied to me and you don't really love this model…. as long as you want?"

Logan stared at her. "You bought me a plane?"

"Well, technically, you bought you a plane, but apparently that marriage certificate means that your finance guy was willing to listen to the crazy idea and set everything up." The beautiful blue gaze of her latched onto him and Logan felt his heart stutter in his chest. "I know it's not a Hornet and I know it won't go mach… whatever, but you'll be in the air." He wasn't sure what his face was doing, but apparently it caught her by surprise. "Shit… do you hate? Is it too soon? I just -"

He leaned in, the kiss cutting off whatever she was going to say and he lifted her up off the ground and spun her a little before letting her feet drop back down and begrudgingly releasing her. Oh. That's it, he realized as he blinked through blurred vision. Tears could definitely give the wrong impression. "I love it," he swore. "It's perfect."

"You're not just saying that?"

"No. You wanna go up?"

She flashed him a bright smile. "See you fly first hand? Absolutely. I think we have to talk to the guy in the office before we just take off in it though."

"Probably so," Logan chuckled and caught her hand in his, pulling it up to press a quick kiss to her knuckles before starting into the hanger. The aftermath of the bombing, recovery, and his eventual medical discharge had been more than he could have ever handled alone, but he had her. Through all of it and for whatever came next. They'd figure it out together.

------------

Notes: So, fun fact: my dad has been a pilot all my life and when I was little (and it didn't break the bank to do it) he used to rent Bonanzas to fly us to different places. I have some very early and very fond memories of those flights, so when I needed a single engine for Logan to be certified in, that was my go-to.

#Veronica Mars #Logan Echolls #VM fix it fic #veronica mars fanfic

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adjudicators · 7 years ago

Text

Overview

Business practices

Misleading or deceptive conduct

Unconscionable conduct

Unfair contract terms

S18: Misleading or deceptive conduct

Old s52

Same jurisprudence

Examples

A businessman seeking damages in respect of advice re borrowing overseas (Chiarabaglio v Westpac Banking Corporation)

An Australian restaurant seeking to restrain the use of a similar name by an American restaurant chain (Taco Bell case)

A toothpaste manufacturer was prevented by a rival from continuing an ad campaign which included unsubstantial claims (Colgate Palmolive v Rexona)

Overlap with other legislation

COMPETITION AND CONSUMER ACT 2010 - SECTION 131

Application of the Australian Consumer Law in relation to corporations etc.

(1) Schedule 2 applies as a law of the Commonwealth to the conduct of corporations, and in relation to contraventions of Chapter 2, 3 or 4 or Schedule 2 by corporations

COMPETITION AND CONSUMER ACT 2010 - SECTION 131A

Division does not apply to financial services

(1) Despite section 131, this Division does not apply…to the supply, or possible supply, or services that are financial services, or of financial products

Australian Securities and Investments Commission Act 2001 (Cth)

s. 12DA

(1) A person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive

s. 12BAB

… a person provides a financial services if they:

(a) provide financial product advice…; or

(b) deal in a financial product; or

(d) operate a registered scheme; or

(e) provide a custodial or depository service; or

(f) operate a financial market…or cleaning and settlement facility

(g) provide a service that is otherwise supplied in relation to a financial product

Corporations Act 2001 s1041H

(1) A person must not, in this jurisdiction, engage in conduct, in relation to a financial product or a financial service, that is misleading or deceptive or is likely to mislead or deceive

Note 1: Failure to comply with this subsection is not an offence

Note 2: Failure to comply with this subsection may lead to civil liability under section 1041I. For limits on, and relief from, liability under that section, see Division 4

Which provision?

Misleading or deceptive conduct

In trade or commerce

NOT in relation to supply of financial services or financial products

S18 ACL

Difficult to exclude

Misleading or deceptive conduct in relation to supply of financial services or financial products?

ASIC Act

Corporations Act

Trade or commerce requirement

Broader definitions of "financial service" and "financial product"

See Pt 7.1 definitions - narrower

May be excluded by contract

Overlap with director's duties

Judicial comment on this complex legislative framework

Winecarribee Shire Council v Lehman Brothers Australian Ltd (in Liq) [2012] FCA 1028. Rares J at [947] - [948]

For many years all one had to know was the elegantly simple s 52(1) of the Trade Practices Act 1974 (Cth) prohibited a corporation from engaging in conduct, in trade or commerce, that was misleading or deceptive or likely to mislead to deceive… Now the community and the Courts must grapple with a labyrinth of statues, all prohibiting such conduct, in relatively general fields (such as s 18 of Sch 2 of the Competition and Consumers Act 2010 (Cth)… and also in particular fields, such as s 1041H(1) of the Corporations Act… Since the end result of this legislative morass seems to be the same, it is difficult to discern why the public, their lawyers (if they can afford them) and the Courts must waste their time turning up and construing which of these statutes applies to the particular circumstance… Why is there a difference? Why does a court have to waste its time wading through this legislative porridge to work out which one or ones of these provisions apply even though it is likely that the end result will be the same?...

s18: elements

Advertising

Unfair competition

Pre-contractual misrepresentation

'In trade or commerce'

Question of construction "arises from the requirement that the conduct to which the section refers to be "in" trade or commerce"

Majority: "The phrase "in trade or commerce" in s52 has a restrictive operation

Religious beliefs

Political Communications

Public health and educational communications

But commercial commentary?

"Engage in conduct"

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191

Silence

Failure to disclose information where the circumstances were such that ordinary members of the class at which conduct was directed would reasonably expect the other party to divulge that information could be misleading or deceptive

Demagogue Pty Ltd v Ramensky (1992) 39 FLR 31

Henjo v Collins Marrickville (1988) 79 ALR 83

McBridge v Christie's Australia Pty Ltd [2014] NSWSC 1729

Albert Tucker's Faun and Parrot

Representations by vendor to Christie's that painting was an Albert Tucker and no concerns about attribution

No knowledge of forgery at time of sale, but Christie's had real concerns shortly thereafter - remained silent

Christie's, vendor and agent for purchaser all engaged in misleading and deceptive conduct

Christie's provided refund if forgery within 5 years - misleading or deceptive to remain silent in the circumstances

Christie's not a mere conduit

Conduct or conduit?

Yorke v Lucas at 666

Disclaimers

Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd FCAFC 131

'misleading or deceptive'

Dictionary approach

Tautologous

Induces or is capable of inducing error

No requirement for deceit

Who is mislead?

"Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests"

INXS case

Hutchence v South Sea Bubble Co Pty Ltd [1986] FCA 42

Identity relevant section of public

Wilcox J in INXS case:

[T]he section of the public likely to be affected by the sale of T-shirts bearing the names of, or symbols relating to INXS is the body of people who enjoy the music of that group: the people who attend their concerts, purchase their records and/or listen to their music on the radio or on television. Bearing in mind the notorious fact that the proportion of persons in any given age group who are rock enthusiasts tends to diminish with increasing age, it is reasonable to assume that a major proportion of INXS followers are teenagers or persons in their twenties. There is no reason to assume otherwise than that in intelligence and educational attainments INXS followers will represent a fair cross-section of the community

Intent?

"A corporation which has acted honestly and reasonably may therefore nevertheless be rendered liable to be restrained by injunction, and to pay damages, if its conduct has in fact mislead or deceived or is likely to mislead or deceive"

Confusion? Wonderment?

More than conduction (Big Mac case) McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd (1980) 49 FLR 455

Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 117

INXS case

Or only reasonable members?

Nike case; Parkdale v Puxu

Evidence useful, but not required

Hornsby Building Information Centre

Conduct directed at identified persons?

E.g. pre-contractual representations

Butcher v Lachlan Elder Realty

Butcher v Lachlan Elder Realty at 50

Predictions, opinions, forecasts

S4(1) ACL

Evidentiary provision

A representation as to a future matter will be taken to be misleading or deceptive unless the maker of the representation can prove that he or she had reasonable grounds for making the representation

S4(2): Onus on maker of representation to prove that they had "reasonable grounds"

Liability issues:

Manufacture or retailer?

Company or director?

One or many?

Unconscionable Conduct - ss20-22

Two prohibitions

s20 - Common law unconscionability

ss21, 22 - Statutory unconscionability

Unconscionable?

Per Gleeson CJ in ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18

(Shorter Oxford Dictionary, relied on by the Court in Qantas Airways Ltd v Camera (1996) ATPR 41-487; ACCC v CG Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2; and Hurley v McDonald's Australia Ltd (2000) ATPR 41-741)

s20: Unconscionable conduct

A person must not,

In trade or commerce,

Engage in conduct

That is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories

Commercial Bank of Australia v Amadio (1983) 151 CLR 447

Son translates terms between parents and CBA bank

Parents thought they were signing a limited guarantee but was actually unlimited

CBA bank comes to Amadio seizing their house

Amadio takes to court and wins - special disadvantage

Common Law

Special disadvantage

Knowingly exploited by other party

Kakavas v Crown Melbourne Ltd [2013] HCA 25

Problem gambler - previously excluded by Crown

Permitted to return having provided assurances of being cured

Gambled $1.5 billion in one year (Lost $20.5m)

s21: Statutory Unconscionability

A person must not,

In trade or commerce,

In connection with the supply or possible supply or acquisition or possible acquisition of

Goods or services to a person (other than a listed public company),

Engage in conduct that is, in all the circumstances

Unconscionable

Why s21? s21(4) and…

Same as common law?

s21(4) It is the intention of the Parliament that: (a) this section is not limited by the unwritten law relating to unconscionable conduct; and

s21(4) and…

(i) the terms of the contract

(ii) the manner in which and the extent to which the contract is carried out;

And is not limited to consideration of the circumstances relating to formation of the contract

Senate Estimates Committee

Statement by Rod Sims - 13 February 2013

Relationship of s21 and s46

Difficulties of evidence

ACCC v Coles

Providing misleading information to suppliers about the savings and value to them from the changes Coles had made;

Using undue influence and unfair tactics against suppliers to obtain payments of the rebate;

Taking advantage of its superior bargaining position by, amongst other things, seeking payments when it had no legitimate basis for seeking them; and

Requiring those suppliers to agree to the ongoing ARC rebate without providing them with sufficient time to assess the value, if any, of the purported benefits of the ARC program to their small business

Consent orders: 22/12/14

Pecuniary penalty: $10 million

Court enforceable undertakings - system of redress for suppliers

Gordon J:

"Coles' misconduct was serious, deliberate and repeated. Coles misused its bargaining power. Its conduct was 'not done in good conscience'. It was contrary to conscience. Coles treated its suppliers in a manner not consistent with acceptable busness and social standards which apply to commercial dealings. Coles demanded payments from suppliers to which it was not entitled by threatening harm to the suppliers that did not comply with the demand. Coles withheld money from suppliers it had no right to withhold."

"Coles' practices, demands and threats were deliberate, orchestrated and relentless."

And now…

December 2015 - ACCC takes action against Woolworths

Unconscionable: ACCC v Lux Pty Ltd [2004] FCA 926

'The word unconscionable is not a term of art. IT is not limited to traditional equitable or common law notions of unconscionability: Australian Competition & Consumer Commission v Simply No-Knead (Franchising) Pty Ltd)… It bears its ordinary meaning of 'showing no regard for conscience' irrenconcilable with what is right or reasonable': Australian Competition & Consumer Commission v Samton Holdings Pty Ltd… What is required is 'serious misconduct or something clearly unfair or unreasonable': Hurley at [19] - [20]. It will be relevant whether advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgement as to what is in his or her best interests: Commercial Bank of Australia Ltd v Amadio' [at 98]

Westpac v Sugden

Whether the customer is able to understand the documentation;

Whether duress, undue influence or unfair tactics used; and

The amount for which consumer could have acquired identical goods or services

Statutory Unconscionability

ACCC v Lux Pty Ltd [2004] FCA 926

Whether conduct complained of is consistent with conduct in other similar business transactions;

+ h. the requires of any industry codes

E.g. Franchising Code of Conduct - Part IVB

Additional factors - s22

The extent of any failure to disclose intended conduct which may affect customer, or risks to customer;

Willingness to negotiate; and

The terms and conditions of the contract; and

Conduct in complying with the terms and conditions of the contract; and

Any conduct engaged in, in connection with their commercial relationship, after they entered into the contract; and

ACCC v Simply No-Knead (Franchising) Pty Ltd [2004] FCA 1365

The imposition of undue pressure and unfair tactics;

A failure to negotiate

A lack of good faith; and

A failure to comply with an applicable industry code of conduct (the Franchising Code of Conduct in this case)

Conduct overlap

Unfair Contract Terms

s23

The term is unfair; and

The contract is a standard form contract

The contract continues to bind the parties if it is capable of operating without the unfair term

Consumer contract?

A supply of goods or services; or

A sale or grant of an interest in land

To any individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption

Standard form contract? s27

Bargaining power relating to the transaction;

Contract prepared by one party before any discussion relating to the transaction occurred between the parties

Whether another party was, in effect, required either to accept or reject the terms of the contract

Whether another party was given an effective opportunity to negotiate the terms of the contract

Whether the terms of the contract take into account the specific characteristics of another party or the particular transaction

Any other matter prescribed by the regulations

Unfair? s24

It would cause a significant imbalance in the parties' rights and obligations arising under the contract; and

It is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

It would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on

The extent to which the term is transparent;

The contract as whole

Expressed in reasonably plain language; and

Legible; and

Presented clearly; and

Readily available to any party affected by the term

What might be unfair terms? - s25

Permit the supplier to unilaterally vary the terms of the contract;

Prevent the consumer from cancelling a contract;

Require the payment of fees when the service is not provided;

Exclude liability for harm resulting from the supplier's or its agents' actions'

Let the supplier supply goods or services that are not those contracted and paid for by the consumer;

Let only the supplier decide whether to renew or not to renew the contract;

Penalise only the consumer for breaches of the terms of the contract

Permit the supplier to change the price of the goods or services contracted for without allowing the consumer to terminate the contract

Permit the supplier to unilaterally determine whether a breach of the contract has occurred or to interpret the contract's meaning;

Allow the supplier to assign the contract to the consumer's detriment, without the consumer's consent;

Purport to limit the consumer's right to take legal action against the supplier;

Limit the evidence that the consumer is permitted to use in legal proceedings based on the contract;

Impose the evidential burden on the consumer in legal proceedings;

Do not permit refunds to consumers when the goods or services are not provided, or which apply conditions to the way in which consumers are refunded;

Require consumers who breach a contract term or terminate early to pay penalties, in the form of specific additional payments, additional interest or indemnity legal costs, which do not reflect the suppliers' reasonable costs; and

Deem something as a fact or that something will be a fact, such as an acknowledgement that certain information has been provided to the consumer prior to the agreement being made, regardless of whether or not it was

ACCC v Bytecard

Unilateral variation

Consumer to indemnify NetSpeed (no corresponding for NetSpeed)

NetSpeed terminate at any time; customer can only terminate on conditions

ACCC review

Airlines, telecommunications, fitness and vehicle rental industries

Online traders and travel agents

Industry review outcomes

Future directions? B2B contracts?

Consultation paper released on 23 May 2014

Unfair contract terms are being included in standard form contracts involving small businesses, causing detriment throughout the community. The Australian Government wishes to protect small businesses by providing them with the same protections available to consumers

The Treasury is undertaking a consultation process on behalf of Consumer Affairs Australia and New Zealand. We would appreciate your feedback to help us put in place adequate protections for small business

20 March 2015 - in principle decision to extent protection to small businesses

From 12 November 2016

Employs less than 20 people, including casual employees employed on a regular and systematic basis

Particular issues

Half truths, silence and non-disclosure

Promises, predictions, forecasts representations as to the future

Opinions

Relaying false information

Exclusions, acknowledgements and disclaimers

Reliance

0 notes