ss. 51AB, 60. Alleged unconscionable conduct with accompanying harassment and coercion by a company towards an intellectually impaired couple to secure the sale of a Lux vacuum cleaner
27 July 2000: Proceedings were instituted in the Federal Court, Perth.
22–26 April 2002: Trial commenced.
7–11 April 2003: Trial continued and was finished on 20 October 2003. In addition to the matter the court has also heard a number of arguments from opposing counsels regarding the admissibility of certain evidence and the applicability of privilege status of a number of documents.
Justice Nicholson ruled in favour of the ACCC on the admissibility of its expert evidence and ruled in favour of the ACCC to apply privilege status to the majority of its documents relating to discussions the ACCC had with its expert, allowing, however, a limited number of documents to forfeit any privilege status as the court ruled those documents should be available to both parties for the purposes of cross examination.
Justice Nicholson also ruled in favour of Lux regarding the admissibility of evidence from their expert witness.
16 July 2004: Justice Nicholson handed down his decision in this matter finding that Lux engaged in unconscionable conduct in relation to the door-to-door sale of a $949 Lux vacuum cleaner to a vulnerable consumer. The court also made declarations that the Lux door-to-door sales agent who made the sale, Mr Dennis Podger, was knowingly concerned and a party to the company’s breach. The court did not find that the conduct was to be considered harassment and coercion as defined by the Trade Practices Act.
Justice Nicholson declined to make the other orders sought by the ACCC, instead ordering the parties to put written submissions before him on the question of relief at which time he will hand down his final ruling. The other relief sought by the ACCC are costs, injunctions restraining Lux and Mr Podger from engaging in similar conduct in the future, orders requiring Lux to publish a public notice, Lux to implement a trade practices compliance program and Mr Podger to attend a trade practice compliance seminar.
9 August 2004: Lux appealed the ruling made by Justice Nicholson that Lux and Mr Podger had engaged in unconscionable conduct. The appeal will be heard in February 2005.
February 2005:
The appeal by Lux Pty Ltd against the July 2004 decision by the Federal Court that the company and its door-to-door sales agent had engaged in unconscionable conduct in breach of s. 51AB of the Trade Practices Act was dismissed by consent.
The mediated outcome means that the original order relating to the declaration that Lux and its sales agent engaged in unconscionable conduct in breach of the Trade Practices Act 1974 stands, while the order requiring Lux to formulate a trade practices compliance program has been slightly modified to also allow Lux to alternatively reformulate any existing compliance program it may have.
Lux has also agreed to meet the ACCC's costs in the matter to an agreed sum and to fully refund to the consumer the amount of $945 which she had paid for the vacuum cleaner.
