Australia: attribution, aggregation and unconscionable conduct

A few days before Christmas the Federal Court of Australia (Full Court) gave judgment in Commonwealth Bank of Australia v Kojic [2016] FCAFC 186. One of the issues before the court was whether the knowledge of officers and employees could be aggregated and attributed to a corporation for the purposes of finding that the corporation had acted unconscionably under section 51AB or section 51AC of the Trade Practices Act 1974 (or the equivalent provisions in the Australian Securities and Investments Commission Act 2001).

At first instance ([2016] FCA 368) the trial judge held that the knowledge of two bank employees should be aggregated and that the bank had acted unconscionably. The Full Court (Allsop CJ, Besanko and Edelman JJ) unanimously overturned this decision, in an important judgment exploring the scope for aggregation and the meaning of unconscionable conduct.