Unconscionable conduct inquiry

Norton Rose partner Stephen Giles drafted the submission on behalf of the Franchise Council of Australia and will be representing the FCA in discussions with the Government and the Expert Committee. The FCA examined the merits of the proposal and concluded that the inclusion of a list of examples would not enhance the understanding or application of the law. Indeed it was likely to lead to greater uncertainty, and possibly even a narrowing of the interpretation of unconscionable conduct. Interestingly, although seemingly innocuous, the suggestion to add examples or principles would in fact have reversed the onus of proof in any situation which came within an example. Further, some of the suggested examples would clearly only be unconscionable in very limited circumstances, and in other circumstances could well be quite legitimate business practises.