Professionals should be aware that anyone—be it a consumer protection agency, an individual consumer, another professional or a professional association—with a genuine interest in the matter can take providers of professional services to court for breaching the Competition and Consumer Act or the Australian Consumer Law. In fact the vast amount of litigation under the consumer protection provisions in the Australian Consumer Law is private litigation—not involving public agencies such as the ACCC. These cases can range from individuals taking legal action to recover loss or damage, to class actions on behalf of many consumers affected by conduct in breach of the ACL.
If a court decides that the law has been breached, it may make orders including:
penalties (not for misleading or deceptive conduct)
damages
injunctions
refunds
corrective advertising.
Enforceable undertakings
Rather than instituting legal proceedings, the ACCC may choose to settle a matter administratively. This can be done by accepting enforceable undertakings from an organisation or person who the ACCC alleges to have breached the Competition and Consumer Act. Once entered into, compliance with an enforceable undertaking is not optional. If the undertakings are not honoured, the ACCC will ask the court for an order requiring the organisation or individual to comply with the undertaking. Ignoring such a court order would be contempt of court, and this in turn may lead to court sanctions including fines or imprisonment.
Enforceable undertakings may include requirements for:
