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Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50

ON 8 APRIL 2015, the Full Court of the Federal Court of Australia delivered Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50 (8 April 2015).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2015/50.html

BANKING AND FINANCIAL INSTITUTIONS – CONSUMER PROTECTION – whether various stipulations for fees are penalties at law or equity, or genuine pre-estimate of damage or compensation – whether the relevant stipulations were for breach of term of contract, collateral or accessory in the nature of security for, and in terrorem of the primary stipulations, or for a further contractual right or accommodation – the relevance of the “tests” in Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited [1914] UKHL 1; [1915] AC 79 to the construction and characterisation of the provisions – whether the fees were extravagant or unconscionable – whether the charging of the fees constituted unconscionable conduct, unjust transactions or unfair contract terms under Australian Securities and Investments Commission Act 2001 (Cth), National Consumer Credit Protection Act 2009 (Cth), and Fair Trading Act 1999 (Vic)

LIMITATION OF ACTIONS – whether recovery statute-barred – construction of s 27(c) of the Limitation of Actions Act 1958 (Vic) – whether it applied to a mistake of law

The Full Court:

1.Dismissed an appeal by Paciocco against the decision of Gordon J of the Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35.
2.Allowed an appeal by Australia and New Zealand Banking Group Limited against the decision of Gordon J of the Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35.

The Full Court held that the bank fees in dispute were not penalties as it had not been proven that they were extravagant or unconscionable.

The Full Court also held that the fees were not unconscionable or unfair under the Commonwealth and State legislation concerning unconscionability, unjustness and unfairness.

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tralia and New Zealand Banking Group Limited [2015] FCAFC 50 (8 April 2015).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2015/50.html

BANKING AND FINANCIAL INSTITUTIONS – CONSUMER PROTECTION – whether various stipulations for fees are penalties at law or equity, or genuine pre-estimate of damage or compensation – whether the relevant stipulations were for breach of term of contract, collateral or accessory in the nature of security for, and in terrorem of the primary stipulations, or for a further contractual right or accommodation – the relevance of the “tests” in Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited [1914] UKHL 1; [1915] AC 79 to the construction and characterisation of the provisions – whether the fees were extravagant or unconscionable – whether the charging of the fees constituted unconscionable conduct, unjust transactions or unfair contract terms under Australian Securities and Investments Commission Act 2001 (Cth), National Consumer Credit Protection Act 2009 (Cth), and Fair Trading Act 1999 (Vic)

LIMITATION OF ACTIONS – whether recovery statute-barred – construction of s 27(c) of the Limitation of Actions Act 1958 (Vic) – whether it applied to a mistake of law

The Full Court:

1.Dismissed an appeal by Paciocco against the decision of Gordon J of the Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35.
2.Allowed an appeal by Australia and New Zealand Banking Group Limited against the decision of Gordon J of the Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35.

The Full Court held that the bank fees in dispute were not penalties as it had not been proven that they were extravagant or unconscionable.

The Full Court also held that the fees were not unconscionable or unfair under the Commonwealth and State legislation concerning unconscionability, unjustness and unfairness.

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Dey v Victorian Railways Commissioners [1949] HCA 1

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (22 February 1949).

“Workers’ Compensation – Injury by accident arising out of or in course of employment – Death of worker – Negligence of employer – Option of dependants to apply for compensation or take other proceedings – Award of compensation obtained by widow on behalf of herself and children – Effect of award as barring claim by dependants under Lord Campbell’s Act – Workers’ Compensation Acts 1928- 1946 (No. 3806 – No. 5128) (Vict.)* – Wrongs Act 1928 (No. 3807) (Vict.), Part III. – The 1946 Workers’ Compensation Rules, rr. 8, 81.*
Practice – Supreme Court (Vict.) – Dismissal of action – Abuse of process – Inherent jurisdiction – Rules of the Supreme Court (Vict.), Order XXV., rr. 2, 4.”

http://www.austlii.edu.au/au/cases/cth/HCA/1949/1.html

A widow who had received a workers compensation award for her late husband’s death was not entitled to maintain a compensation to relatives action in her own right but the infant children were competent to sue by their next friend.

Per Dixon J at 91:

“The application [to dismiss proceedings on the grounds of being frivolous, vexatious and abuse of process] is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

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