ACN 158 148 951 Pty Ltd v Prout - [2018] WASC 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ACN 158 148 951 PTY LTD -v- PROUT [2018] WASC 190
CORAM:   JENKINS J
HEARD:   29 AUGUST 2017
DELIVERED          :   22 JUNE 2018
FILE NO/S:   SJA 1008 of 2017
BETWEEN:   ACN 158 148 951 PTY LTD
Appellant
AND
CHAD ANTHONY PROUT
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S DE MAIO
File Number            :   PE 26933-26955 of 2015

Catchwords:

Criminal law - Appeal against conviction - Breaches of Australian Consumer Law (WA) - Whether correct company was convicted - Whether magistrate lifted the corporate veil - Whether magistrate gave adequate reasons

Legislation:

Australian Consumer Law (WA)
Fair Trading Act 2010 (WA)

Result:

Appeal allowed in part

Representation:

Counsel:

Appellant	:	Mr G M Cridland
Respondent	:	Mr J L Derby

Solicitors:

Appellant	:	GG Legal
Respondent	:	Consumer Protection Legal Unit

Case(s) referred to in decision(s):

Ackers v Austcorp International Ltd [2009] FCA 432
Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd (t/as Bet365) [2015] FCA 1007
Burswood Catering and Entertainment Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2002] WASCA 354
Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) 134 FCR 585
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Lloyd v Faraone [1989] WAR 154
Rundle v Innerd [2015] WASC 340
Tesco Supermarkets v Nattrass [1927] AC 153; [1971] UKHL 1

JENKINS J:

This is an appeal from the decision of a magistrate sitting at the Magistrates Court at Perth on 5 December 2016 to convict the appellant of 23 charges under the Fair Trading Act 2010 (WA) (the Act) and the Australian Consumer Law (WA) (the ACL).

Grounds of appeal

The grounds of appeal are:
Charge 1 - Made Misleading and/or False Representation
1.The Learned Trial Magistrate ('LTM') erred in fact and / or law in attributing criminal liability to ACN 158 148 951 Pty Ltd ('the charged corporate accused') specifically by finding in error,
a.the corporate veil was created to shield the charged corporate accused from representations made by employees and contractors of another corporation (Solar Shop Group Pty Ltd), and
b.the charged corporate accused had taken over the operations of Solar Shop Group Ltd / purchased Solar Shop Group Pty Ltd and absorbed its business entirely,
c.the charged corporate accused is engaged in trade or commerce in the supply of solar products and services to the public, ([116] ‑ [118], [121], [228] Reasons)
which findings are not reasonably open on the evidence and the LTM ought instead to have found that the representation was made by another corporation alone, Solar Shop Group Pty Ltd which, unlike the charged corporate accused, traded in domestic solar products and services and used the business name 'Solar Shop'.
2.The LTM erred in fact and / or law in failing to provide any, or adequate, reasons for the finding that a 'corporate veil' was 'created to shield' the charged corporate accused from representations made by employees and contractors of Solar Shop Group Pty Ltd ([116] and [117] Reasons).
3.The LTM erred in law and / or fact finding that the employees and contractors of Solar Shop Group Pty Ltd who made the representation were the representatives of the charged corporate accused ([117] Reasons) and the corporate accused made the representation to consumers in trade or commerce when those findings are not reasonably open on the evidence and the LTM ought instead to have found the representations were made by employees and contractors of Solar Shop Group Pty Ltd in its business of domestic solar products and services.
4.The LTM erred in law failing to apply the settled legal principles flowing from the separate legal personality of the charged corporate accused and specifically the LTM instead, in error, attributes actions by the contractors and employees of another corporation (Solar Shop Group Pty Ltd) to the charged corporate accused ([116] and [117] Reasons) and the LTM ought instead to have found that the charged corporate accused neither engaged in trade or commerce in solar products or services nor made the representation.
5.The LTM erred in law and fact in
a.finding that the charged corporate accused was the ultimate holding company of Solar Shop Group Pty Ltd, and
b.reasoning that the ultimate holding company was criminally liable for the actions of servants and contractors of its subsidiary company,
([32] and [33] Reasons) when the evidence was that
c.the shares held by the charged corporate accused in Solar Shop Group Pty Ltd were held on trust for Cobb Corp Pty Ltd, and
d.the majority of ordinary shares in the charged corporate accused were also held on trust for Cobb Corp Pty Ltd,
e.Solar Shop Group Pty Ltd and not the corporate accused was engaged in trade and commerce in domestic solar products and services, and
there is no legal principle that an ultimate holding company is criminally liable for actions of servants and contractors of its subsidiary.
6.The LTM erred in law in piercing / lifting the corporate veil ([116] and [117] Reasons) in circumstances where there was no prosecution allegation in the charge or opening of agency or fraud by the charged corporate accused nor any prosecution application to pierce the corporate veil.
7.The LTM erred in law and or fact in making findings that the charged corporate accused conducted a domestic solar business and trades under three named core brands ([46], [100] and [116] Reasons) including 'Solar Shop Group' when the finding was not reasonably open on the evidence and the LTM ought instead to have found that
a.the charged corporate accused did not provide, and had never provided, any products or services to consumers including domestic solar products and services,
b.the charged corporate accused was merely a shared services company providing access to credit card payment and other facilities for a fee,
c.another corporation (Solar Shop Group Pty Ltd) alone provided domestic / residential solar products and services to consumers,
d.another corporation (Solar Shop Group Pty Ltd) alone was the registered holder of the 'Solar Shop' business name, used solarshop.com.au email addresses, employed the staff and engaged the contractors who contacted consumers, created the script used for contact with consumers and traded as Solar Shop.
8.The LTM erred in law in drawing the inference that none of the emails sent to the customers, including emails from a solarshop.com.au email address after a phone call from a caller identifying themselves as calling from Solar Shop, indicated that the customers were dealing with Solar Shop Group Pty Ltd ([74], [82], [88], [105] Reasons) when the drawn inference was not the only inference reasonably open on the evidence and the LTM ought have found that explanation that was open and almost certain, and consistent with the innocence of the corporate accused, was that the consumers were dealing with Solar Shop Group Pty Ltd alone.
9.The LTM erred in law in misconstruing section 151(1)(1) of the Australian Consumer Law (WA) and misdirecting herself as to the elements of the offence, specifically the LTM failed to identify that the offence requires that the representation be made by the charged accused and made in trade or commerce, and applying that improper construction to the facts ([18] Reasons).
10.The LTM erred in law in misconstruing section 151(1)(1) of the Australian Consumer Law (WA) and misdirecting herself as to the elements of the offence, specifically the LTM conflated facilitation of making of a representation with the requirement for the prosecution to prove the charged accused made the representation, and applying that improper construction to the facts as the LTM found them ([18] and [102] Reasons).
11.Having correctly noted that
a.Solar Shop is a registered business name belonging to Solar Shop Group Pty Ltd ([34] Reasons), and
b.Solar Shop Group Pty Ltd was a stand-alone company and operated under its own brand and logo ([67] and [71] Reasons), and
c.The corporate accused does not sell any products or services to Australian consumers ([52] Reasons) and
d.Solar Shop employees are employed by Solar Shop Group Pty Ltd ([39] Reasons) and
e.Solar Shop Group Pty Ltd obtained a licence to operate the Solarshop trademarks and systems ([64] Reasons), and
f.There was a marked consistency by the customers who said they were contacted by representatives of Solarshop / employees of Solar Shop Group Pty Ltd ([74] and [106] Reasons),
and not having found that the corporate accused was involved in the creation of the text or script of the representation the LTM then errs in fact and / or law in finding the corporate accused (referred to as 'the Clean Energy Group' in an apparently mistaken reference) clearly set out to demonstrate that it was the parent company of a group of companies that used the brand Solarshop and it did so to facilitate the making of the representation ([102] Reasons) when the finding is not reasonably open on the evidence.
12.The LTM erred in law in failing to give any or adequate reasons for the finding the corporate accused (referred to as 'the Clean Energy Group' in an apparently mistaken reference) clearly set out to demonstrate that it was the parent company of a group of companies that used the brand Solarshop and it did so to facilitate the making of the representation ([102] and [104] Reasons).
13.[Not relied on].
Charges 2 to 22 - Unsolicited Consumer Agreements - Information, Form and Notice Requirements
14.The LTM mistook the facts in implicitly finding ([97] ‑ [100] Reasons) that the corporate accused received monies paid by consumers when there was no direct evidence of the account into which the monies were paid and the finding was not reasonably open on the evidence and the LTM ought instead to have accepted the uncontradicted evidence of Mr Cobb ([100] Reasons) and found the charged corporate accused was merely a shared services company providing access to credit card payment and other facilities to Solar Shop Group Pty Ltd for a fee and that Solar Shop Group Pty Ltd received the monies paid by consumers for domestic solar services and products provided by Solar Shop Group Pty Ltd.
15.Having correctly identified that identity was in issue in the trial (Reasons 23] ‑ [25]) and correctly noted that
a. 'Solar Shop' is a registered business name belonging to Solar Shop Group Pty Ltd ([34] Reasons), and
b. Solar Shop Group Pty Ltd was a stand‑alone company and operated under its own brand and logo ([67] and [71] Reasons), and
c.The charged corporate accused does not sell domestic solar or any other products or services to Australian consumers ([52] Reasons) and
d.Solar Shop employees are employed by Solar Shop Group Pty Ltd ([39] Reasons) and
e.Solar Shop Group Pty Ltd obtained a licence to operate the Solarshop trademarks and systems ([64] Reasons), and
f.There was a consistency in the customers evidence who said they were contacted by representatives of Solarshop / employees of Solar Shop Group Pty Ltd ([74], [88] and [105] ‑ [113] Reasons),
then erred in finding
g.that the charged corporate accused had taken over the operations of Solar Shop Group Ltd and purchased Solar Shop Group Pty Ltd and absorbed its business entirely ([118] and [221] Reasons) when those findings are not reasonably open on the evidence, and
and relied upon that erroneous findings to determine that the corporate accused was the 'supplier' ([223] Reasons) for the purposes of these charges and the LTM ought to have instead found that the 'dealer' / 'supplier' was Solar Shop Group Pty Ltd and the consumer agreements were between Solar Shop Group Pty Ltd and the consumers.
16.[Not relied on].
Charge 23 - Failure to Refund Monies after Termination of Consumer Agreement
17.The LTM erred in fact and / or law in finding that the charged corporate accused was 'a supplier' of domestic solar products and services and there was a consumer agreement between Mrs Wollacott and the charged corporate accused ([21], [238] ‑ [248] Reasons) when those findings are not reasonably open on the evidence and instead ought to have found that
a.it was a different corporation, Solar Shop Group Pty Ltd which was the supplier of domestic solar products and services and
b.Solar Shop Group Pty Ltd had received the payment from Mrs Wollacott and
c.Solar Shop Group Pty Ltd had entered the agreement with Mrs Wollacott and was responsible for the refund.

Application for an extension of time

The appellant requires an extension of time within which to appeal as the appeal was filed on 17 February 2017 which was about three weeks out of time. There are four principal considerations in determining whether an extension of time ought to be granted. Those factors are the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice to the respondent. A delay in filing an application which is attributable to the appellant's lawyer rather than the appellant itself is a material consideration in the exercise of the court's discretion.
The length of the delay is small. The explanation for the delay is that the appellant's lawyer mistakenly thought that time to appeal did not run during the period between 24 December and 15 January. The respondent did not submit that he was prejudiced by the delay.
After considering the merits of the grounds of appeal I have decided to grant an extension of time within which to appeal.

Application for leave to appeal

The application for leave to appeal was ordered to be heard with the appeal. The appellant requires leave to appeal on each of the grounds of appeal. If a ground of appeal has reasonable prospects of succeeding, I ought to grant leave to appeal on that ground. That is so even though it or the appeal is ultimately unsuccessful. For the reasons which follow I have decided that the magistrate erred and the appeal ought to be allowed in part. However, it is not possible for me to isolate one or more grounds of appeal which properly articulate the error. In these unusual circumstances I have decided to grant leave to appeal on all grounds.

Hearing of the appeal

The respondent's written submissions for the hearing of the appeal included a notice of contention asserting that the appellant could be convicted on a different basis to that set out by the magistrate. At the hearing counsel for the appellant was granted time to file a response to the respondent's notice of contention and the parties were granted time from that date to request an oral hearing in respect of the notice of contention.
Neither party requested an oral hearing of the notice of contention. The appellant's response to the notice of contention was filed on 6 September 2017 and I have taken the submissions into account.

The charges

The respondent was a senior investigator with the retail, building and services branch of the then Western Australia Department of Commerce which was responsible for consumer protection. He held a designation from the Commissioner for Consumer Protection as an investigator for the purposes of the Act pt 6.
On 16 March 2015, the respondent lodged 23 prosecution notices (PE 17685/2015 ‑ 17707/2015) which alleged that the appellant ACN 158 148 951 Pty Ltd committed 23 offences under the ACL pursuant to the Act s 32.
PE 17685/2015 alleged that from 27 June 2013 to 11 August 2014 at Perth and elsewhere the appellant in trade or commerce in connection with the promotion of anti‑islanding testing (AIT) services made a false or misleading representation as to the need for AIT services, namely that AIT is a requirement under the State and Federal Electricity Distribution Regulations, contrary to the ACL s 151(1)(l) and is guilty of an offence against the Act s 32 (the false or misleading charge).
PE 17686 ‑ 17692/2015 alleged that on or about 11 April 2013 the appellant made an unsolicited consumer agreement with Donald Munro and the agreement failed to comply with certain requirements of the ACL and that it is guilty of an offence against the Act s 32 (the unsolicited consumer agreement charges). The alleged breaches by the appellant in relation to Mr Munro were as follows:
•PE 17686 - Before the agreement was made failed to give Mr Munro information as to his right to terminate the agreement during the termination period contrary to the ACL s 173(1)(a)(i);[1]
•PE 17687 - Before the agreement was made failed to provide information to Mr Munro as to the way in which he may exercise his right to terminate during the termination period contrary to the ACL s 173(1)(a)(ii);
•PE 17688 - Before the agreement was made failed to provide information to Mr Munro about the supplier being unable to accept payment within the termination period contrary to the ACL s 173(1)(a)(iii);
•PE 17689 - The agreement was made by telephone and before the agreement was made failed to provide Mr Munro with the information required by the ACL s 76(a) by telephone contrary to the ACL s173(1)(c)(i);
•PE 17690 - The agreement was made by telephone and failed to provide Mr Munro with the information required by the ACL s 76 (a) in writing contrary to the ACL s 173(1)(c)(ii);
•PE 17691 - The agreement did not include a front page notice that conspicuously and prominently informed Mr Munro of the his right to terminate the agreement contrary to the ACL s 175(1)(b)(i);[2]
•PE 17692 - The agreement was not accompanied by a notice that can be used to terminate the agreement contrary to the ACL s 175(1)(c)(i).
[1] The ACL s 173(1) states that a 'dealer' commits an offence in these circumstances. The charges laid under s 173(1) did not refer to this requirement.
[2] The ACL s 175(1) states that a 'supplier' commits an offence in these circumstances. The charges laid under s 175(1) did not refer to this requirement.
PE 17693 ‑ 17699/2015 alleged that on or about 31 July 2013 the appellant made an unsolicited consumer agreement with Stephen John Ward and committed various unsolicited consumer agreement charges. The alleged unsolicited consumer agreement charges against the appellant in relation to Mr Ward were identical to those laid in relation to Mr Munro and are summarised as follows:
•PE 17693 - The ACL s 173(1)(a)(i);
•PE 17694 - The ACL s 173(1)(a)(ii);
•PE 17695 - The ACL s 173(1)(a)(iii);
•PE 17696 - The ACL s 173(1)(c)(i);
•PE 17697 - The ACL s 173(1)(c)(ii);
•PE 17698 - The ACL s 175(1)(b)(i);
•PE 17699 - The ACL s 175(1)(c)(i).
PE 17700 ‑ 17706/2015 alleged that on or about 28 June 2013 the appellant made an unsolicited consumer agreement with Beatrice Louise Wollacott and committed various unsolicited consumer agreement charges. The alleged unsolicited consumer agreement charges in relation to Ms Wollacott are also identical to those laid in relation to Mr Munro and are summarised as follows:
•PE 17700 - The ACL s 173(1)(a)(i);
•PE 17701 - The ACL s 173(1)(a)(ii);
•PE 17702 - The ACL s 173(1)(a)(iii);
•PE 17703 - The ACL s 173(1)(c)(i);
•PE 17704 - The ACL s173(1)(c)(ii);
•PE 17705 - The ACL s 175(1)(b)(i);
•PE 17706 - The ACL s 175(1)(c)(i).

PE 17707/2015 alleged that the appellant had failed to refund money to Ms Wollacott which she paid under an unsolicited consumer agreement following termination of the agreement contrary to the ACL s 178(1) (the refund charge).[3]
[3] The ACL s 178(1) states that a 'supplier' commits an offence in these circumstances. This charge did not refer to that requirement.

Details of the proceedings in the Magistrates Court

The appellant pleaded not guilty to all charges. The charges were heard in the Magistrates Court at Perth. Magistrate De Maio delivered judgment on 5 December 2016 and entered convictions against the appellant for each of the 23 charges.

The respondent's case

The respondent alleged and it was not in dispute that the appellant has had the following names whilst it has been an Australian proprietary company:
•3 May ‑ 19 July 2012 - Clean Energy Enterprises Pty Ltd;
•20 July ‑ 21 August 2012 - Commsolar Pty Ltd;
•22 August 2012 - 21 December 2015 - Clean Energy Enterprises Pty Ltd;
•22 December 2015 ‑ 29 December 2015 - Australian Electrical Installations and Logistics Pty Ltd; and
•30 December 2015 onwards - ACN 158 148 951 Pty Ltd.
All the offences were alleged to have been committed during 2013 and 2014 when the appellant's name was Clean Energy Enterprises Pty Ltd.
On 3 May 2012 Mr Daniel Cobb was appointed the appellant's sole director and he remained so throughout 2013 and 2014. An external administrator was appointed on 21 December 2015 but at the time of the trial Mr Cobb had resumed control of the appellant by way of a deed of company arrangement.
As of January 2016 the appellant had issued 183,000 class C preference shares. Cobb Corp Pty Ltd beneficially held 40,000 C class shares and Solar Eden Pty Ltd beneficially held 143,000 C class shares. Of the 2,400,000 ordinary shares, Alan Belkin Pty Ltd beneficially held 275,000 shares, Chen Xi held 240,000 shares and Mr Cobb held 1,885,000 shares which he held on behalf of the Cobb Corp Pty Ltd as trustee for the Cobb Family Trust. It was not in evidence as to when these shares were acquired but in his evidence Mr Cobb did not suggest that he was not a shareholder of the appellant in 2013 and 2014.
The following matters were not in dispute by the end of the trial:
(a)From 24 October 2012 up to and including the date of the offences Solar Shop Group Pty Ltd (SSG Pty Ltd) was the registered user of the business name Solar Shop;[4]
(b)SSG Pty Ltd was an Australian proprietary company limited by shares which was registered in Victoria on 31 July 2012. Mr Cobb was its sole director and secretary. The appellant was listed as its ultimate holding company. Its previous ultimate holding company was Cobb Corp Pty Ltd but no date for the change in holding company was given. However the document evidencing the appellant's acquisition of SSG Pty Ltd's 1,000 ordinary shares, the total number of shares issued, was dated 5 September 2012;
(c)SSG Pty Ltd went into liquidation and had an external administrator appointed on 7 October 2014;
(d)In 2013 and 2014 the appellant held all the shares in SSG Pty Ltd and Mr Cobb was the sole director of the appellant and SSG Pty Ltd;
(e)There was no evidence that Solar Shop Australia, Solarshop Australia or Solarshop were registered as business names;
(f)In September 2011 Solar Shop Australia Pty Ltd had external receiver managers appointed. It did not have any officeholders or shareholders in common with the appellant or SSG Pty Ltd;
(g)Solar Shop Australia Pty Ltd trading under the name Solarshop had supplied and installed many of the domestic PV systems the subject of the charges. It had gone into liquidation by 2013.[5]

The false or misleading charge - the consumers' evidence

[4] Exhibit 7.

[5] ts 104 ‑ 105.

The respondent alleged that during 2013 and 2014 the appellant contacted a number of former Solar Shop Australia Pty Ltd and Unleash Solar customers and offered them negative earthing kits (NEK) and maintenance services. The maintenance services offered were a 31 point service check (31 point check) for their domestic photovoltaic systems[6] and AIT.
[6] In the trial, such systems were referred to by many names. For the sake of consistency, I will refer to them throughout my reasons as domestic PV systems. They are the systems which convert solar radiant energy to electrical energy and which are designed to be used by consumers in their homes.
The statement of Mr John Little was tendered[7] in which he said that he had a domestic PV system installed at his home by 'Solarshop'[8] on 6 October 2010. At about 10.30 am on 15 July 2014 he received a telephone call from a man named Allen O'Brien who said that he was from Solarshop. Mr O'Brien told Mr Little that Solarshop had taken over from the previous business, also known as Solarshop, as it had gone into liquidation.
[7] Exhibit 1.
[8] This is the spelling and capitalisation used throughout Mr Little's statement.
Mr O'Brien told Mr Little that AIT and a 31 point check were vital to uphold the guarantee on his domestic PV system. Mr Allen said that the services cost $359.00 and a deposit was required to be paid. Mr Little asked Mr O'Brien to forward the relevant information to him by email.
At 10.49 am on the same day Mr Little received an email from Mr O'Brien. Mr O'Brien's return email address was stated to be 'Allen.O'[email protected]'. The subject title of the email was 'National 31 point Check'. It was addressed to Mr Little and stated that it attached information regarding a 31 Point Safety Check on the domestic PV system in Mr Little's house. The signature block contained Mr O'Brien's name, his position as 'Customer Care Team Member', a phone number and the above email address.
Below the signature block was a circular logo which was just less than 2 cm in circumference. The logo contained numerous different shapes none of which appear to be referable to a particular person or company. To the right of the logo is one word, Solarshop (the Solarshop logo). Evidence adduced by the appellant suggests that this had been Solar Shop Australia Pty Ltd's logo. In superscript next to the word Solarshop is an ®. This is the symbol for a registered trademark. There was no direct information on the document which told a reader who owned the trademark. Below the Solarshop logo was an address in South Australia, telephone and fax numbers and the web address '>
The second page of the email (the attachment) was addressed to 'Dear Solarshop customer …'. It described the nature of AIT and continued:
This is a requirement under state and federal Electricity Distribution Regulations and is the responsibility of all Solar PV owners to carry out this function. (the representation)
The attachment went on to explain that AIT was to ensure good operation of the system, compliance with 'State and National Governments electricity Distribution code, the Electricity Safety Act 1998 as well as any other Australian Standards' and safety.
The attachment stated that:
As part of the Mandatory [AIT] Solar Shop is carrying out a [31 point test] to ensure your Solar System is in line with current State/Federal standards this is a requirement to maintain your installation warranties moving forward.
The above quote was the only reference to Solar Shop, SSG Pty Ltd's registered business name, in the documents sent to Mr Little and the other consumers. The cost of the 'Check' was stated to be $359.00 which was required to be paid by a deposit of $99.00 and the balance due on the day of service.
The Solarshop logo was printed in the top right‑hand corner of the attachment. Centred at the bottom of the page was the word Solarshop. Underneath it were the address, phone number and web address which were on the email. Underneath those details were the ACN and ABN of SSG Pty Ltd. Underneath those references were three names and web addresses, with a vertical line between each of them. They were 'Clean Energy Enterprises', the appellant's then name, 'Commsolar' the appellant's previous name and 'Commercial Power Solutions'. Whilst the appellant's name and web address appeared first, it had no more prominence than any of the other names. The names of the businesses and email addresses were in smaller font than the printing in the body of the attachment but they had some prominence because they were centred, bolded and separate from the printing above them.
Ms Fiona Morrison gave evidence that in December 2010 she had a domestic PV system on her property in Western Australia. The panels were purchased from 'Solarshop'.[9]
[9] This is the spelling and capitalisation used throughout the transcript of the hearing before the magistrate when a witness said solar shop. However the witnesses themselves did not say whether they were referring to a particular business named Solarshop or another name such as Solar Shop or simply solar shop. I will use the same spelling as the transcript for convenience.
On 15 July 2014 Ms Morrison received an email from Mr O'Brien which said:
I tried to contact you regarding a 31 Point Safety Check on the solar system in your house. Please find information attached.[10]
[10] Exhibit 8.
The email contained the same signature block as the email sent to Mr Little. The attachment included the representation, the reference to Solar Shop carrying out a 31 point check as part of AIT and was identical to the attachment sent to Mr Little. Prior to receiving this email, Ms Morrison received a voice mail message from a man who claimed to be Mr Allen O'Brien from Solarshop.
After doing some internet research Ms Morrison responded to Mr O'Brien by email that same day stating that if he wished to pursue the issue she would refer his communications to the Department of Commerce. She did not receive any further communications about the testing.
Mr Christian Rendtorff gave evidence that in 2011 a solar panel system was installed at his premise by Unleash Solar. On 7 August 2014 a voice message was left on Mr Rendtorff's mobile phone in which a male caller introduced himself as a representative of Solarshop. He requested Mr Rendtorff to call him back. Within a couple of minutes Mr Rendtorff received an email and the attachment.[11]
[11] Exhibit 14.
The email was addressed to Mr Rendtorff from Shakeel Ahmed whose email address was '@solarshop.com.au'. Mr Ahmed said that he had left a message for Mr Rendtorff in regards to a 'Preventative Maintenance program' of his solar system. The email went on to say:
We are offering a 31 point check according to Australian Standards released in 2012 to ensure your system is compliant and up to Australian standards.
Electrician is working in your area at WA 6164
After completion of this check we will then look after any warranty obligations that you may have in the future as Solar shop/Unleashed/Great solar Went into Receivership in late 2012 The trading name was purchased by Clean Energy Enterprises and that's who I work for.
The email contained the Solarshop logo and the same contact details as the emails sent to Mr Little and Ms Morrison. In addition, the last two lines of the email stated:
CLEAN ENERGY ENTERPRISES GROUP
Solarshop/Commsolar/Commercial Power Solutions
Attached to the email was the attachment which Mr Little and Ms Morrison had received.
Mr Frederick Jeffreys testified that he had a domestic PV system installed at his premises in 2011 by Solarshop. In May 2014 he received an unsolicited phone call from Mr Ahmed. He was advised that there was a requirement for some testing to be done to do with anti‑island issues and he offered to do AIT within the next couple of weeks. Mr Jeffreys asked Mr Ahmed to email him the details. On 13 May 2014 Mr Ahmed sent Mr Jeffreys an email referring to their telephone conversation in relation to 'Solar shop 31 points check'. The email contained the Solarshop logo and contact details as emails sent to Mr Little, Ms Morrison and Mr Rendtorff. It also contained the reference to Clean Energy Enterprises Group/ Solarshop/Commsolar/Commercial Power Solutions as the email which Mr Rendtorff received.
The attachment to the email was in the identical form to the attachment received by Mr Little, Ms Morrison and Mr Rendtorff.[12] However the Solarshop contact details and the reference to Clean Energy Enterprises, Commsolar and Commercial Power Solutions is not very clear because it is a poor copy.
[12] Exhibit 15.
Mr Martin Woodworth also had a domestic PV system installed at his premises in 2011 by Solarshop. In July 2013 he was contacted by a lady named Laura who said that she was from Solarshop. She told Mr Woodworth that he was required to do mandatory AIT. Mr Woodworth asked her to send him information by email. On 5 July 2013 Mr Woodworth received an email addressed to him from Laura Mele whose email address was [email protected].
The body of the email sent to Mr Woodworth contained the identical representations and information including the reference to Solar Shop, which were contained in the attachment received by Mr Little, Ms Morrison, Mr Rendtorff and Mr Jeffreys. However the cost of the testing was said to be $330 and there was no reference to a deposit being payable.[13]
[13] Exhibit 17.
The email contained the Solarshop logo and contact details as the other emails to the other customers. However, at the end of those details the website address for ' was provided in place of the Solarshop web address which was contained in the other consumers' emails. After the reference to that web address there was the two line reference to Clean Energy Enterprises Group and Solarshop/Commsolar/Commercial Power Solutions.
Attached to the email was a document entitled 'CitiPower and Powercor Grid - Connected Renewable Energy Systems technical guidelines' and Appendix C to the Guidelines. This purported to be part of Australian Standard AS4509.3 par 11.3. The Guidelines were from an interstate network provider and did not apply in Western Australia.
On 21 January 2014 during an interview with the respondent, Mr Cobb said that the document was a Victorian document. He said that he could only 'presume' that the sales operator was 'demonstrating … network operators around the country having differing views of what is required to maintain a system'.[14]
[14] Interview transcript page 99.
Ms Beverly Boyd gave evidence that she had a domestic PV system installed at her premises in 2011 by Solarshop.[15]
[15] ts 62.
In July 2013 she received a telephone call from Jonathan Lannon from Solarshop. He told her that she needed to get her panels tested as it was a legal requirement. Ms Boyd told Mr Lannon that he would need to send her more information. On 10 July 2013 Ms Boyd received an email addressed to her from Mr Lannon whose email address was '[email protected]'.
The first paragraph asserted:
Customer's will soon start getting info from there (sic) energy providers in relation to [AIT]. [AIT] ensures that when the Network Power is lost your Inverter shuts down and stops power exporting to the grid from your Solar System. This is to protect workers who arrive to restore power. The tester confirmed the correct operation of the inverter is referred to as the [AIT].[16]
[16] Exhibit 18.
The body of the email sent to Ms Boyd contained the representation and the same information as the email sent to Mr Woodworth and as was in the attachment sent to other consumers, including the reference to Solar Shop. The email contained the Solarshop logo and contact details as contained in the email to Mr Woodworth.
Attached to the email was a copy of a three‑page email which purported to be from the Australian Government Clean Energy Regulator (CER) entitled 'Are you prepared for the AS/NZS 5033 changes, which come into effect 16 July?' (the CER email).
On 21 January 2014 during an interview with the respondent, Mr Cobb said that the CER email was for industry and was not designed for customers.[17]
[17] Interview transcript page 97.
After making inquiries Ms Boyd decided that she did not wish to pay for the testing. She received a follow‑up phone call and advised the caller that she was not interested as she did not believe that the testing was required.
Ms Rosalind Barnes gave evidence that she had a domestic PV system installed in her house in 2011 by Solar Shop Australia Pty Ltd.[18]
[18] ts 108.
On 14 July 2014 she received a phone call from Mr O'Brien who told her that there was a service that was required on her solar panels. Ms Barnes believed that he introduced himself as being from Solarshop.com.au. He told her that Solarshop Australia had gone out of business and that this company was contacting customers and offering them a service. He implied that the test was mandatory and that it involved AIT. She told Mr O'Brien that she would like him to send her an email so she could discuss it with her husband.
The following day she received an email and the attachment. The email was sent from Mr O'Brien '@solarshop.com.au'. It said that it attached information regarding a '31 Point Safety Check' on her solar system. It quoted the cost at $359 and represented that Ms Barnes' installation warranty became void when 'Solar shop' went into receivership in 2011. The email contained the Solarshop logo, an address in South Australia and the website 'solarshop.com.au'.[19]
[19] Exhibit 25.
The attachment was identical to the attachment sent to other consumers and contained the representation about the legal requirement to carry out AIT. The attachment also contained a footer referring to Solarshop, an address in South Australia and an ACN that was not the appellant's ACN.
Underneath those details were references to Clean Energy Enterprises, Commsolar and Commercial Power Solutions and their email addresses.
Mr Anthony Giele gave evidence that he had a domestic PV system installed at his house in 2011 by Solarshop.
Later he received a telephone call from a person who told him that Solarshop had gone into receivership, 'they' were taking over and to continue his installation warranty he would need a 31 point check which included AIT.[20]
[20] ts 114.
Mr Giele asked the caller to send him the information by email.
Mr Giele received an email[21] from Mr Ahmed whose email address was '@solarshop.com.au' the email said that 'we' are offering a 31 point check according to Australian standards. The email said that an electrician would be available on 1 August 2014. I infer that the email was sent shortly before that date. It said that after completion of the check 'we' will look after any warranty obligations that you may have in the future as Solar shop/Unleashed went into receivership in late 2012. The email attached the attachment which was sent to other consumers.

The false or misleading charge - expert evidence

[21] Exhibit 27.

Mr Donald Saunders was the principal engineer electrical utilisation at the Office of Energy Safety which was part of the Western Australian Department of Commerce. Mr Saunders holds a Bachelor of Applied Science and a Bachelor of Economics. He has extensive experience in electricity regulation in Western Australia.[22]
[22] Exhibit 30.
Mr Saunders testified that in a domestic PV system an inverter converts DC power from the solar cells to AC power. The AC power can then be exported to the State electricity network grid. If for any reason the electricity supply from the network to the system is cut off the inverter should detect the lack of supply and automatically switch itself off. That is called anti‑islanding. If it did not do so the domestic PV system would continue to generate electricity as an island.
Mr Saunders described the test to determine whether an inverter will operate to prevent islanding as being 'very simple'.[23] To perform the test the main switch at the home's electricity switchboard is turned off. The inverter should immediately detect a loss of electricity supply and switch itself off. After turning off the main switch the inverter should be inspected to ensure that it has also turned off. After confirming that it has the tester turns the main switch back on.[24]
[23] ts 138.
[24] ts 139.

I note that what Mr Saunders described as AIT is what Mr Wilmot, another expert, describes as a disconnect test.
The Electricity (Licensing) Regulations 1991 (WA) (the Regulations) reg 49(1)[25] states that a person shall carry out electrical work in accordance with the requirements of the Australian/New Zealand Wiring Rules, the WA Electrical Requirements and the standards specified in the Regulations. Schedule 2 to the Regulations specifies Australian Standard 5033 which is entitled 'Installation of photovoltaic (PV) arrays' (AS 5033) and Australian Standard 4777.1‑3 which is entitled 'Grid connection of energy systems via inverters' (AS 4777) as dealing with installation requirements, inverter requirements and grid protection requirements. AS 5033 and AS 4777 must be complied with for the purpose of reg 49(1).
[25] The Regulations are made under the Electricity Act 1945 (WA).
The WA Electrical Requirements cl 9.3.2 authored by Mr Saunders[26] stated at the relevant time:
[26] ts 141.
9.3.2Islanding
The generator operator must prevent intentional or unintentional islanding. This may occur when the generator continues to energise the network when normal network supply is lost.
The generators shall be disconnected automatically from the network for any of the following events:
•Loss of network stability;
•Loss of network supply;
•Power export exceeding agreed limits;
•Generator pole slip.
The generator may continue to supply the consumer's internal installation during loss of network supply. Reconnection to the network shall not be attempted without the network operator's agreement.[27]
[27] Exhibit 31.
AS 4777.1, cl 4.9, defined 'Islanding' as:
Any situation where the electrical supply from an electricity distribution network is disrupted and one or more inverters maintains any form of electrical supply, be it stable or not, to any section of that electricity distribution network.[28]
[28] Exhibit 32.1.
Mr Saunders was not aware of any reference in AS 4777 to the requirement for AIT to be conducted. The Standards require a PV system that is connected to the network to be installed and operated so that it does not result in islanding.
AS 5033 contains the installation and safety requirements for PV arrays.[29] Appendix 2 of AS 5033 states that various maintenance activities should be considered for inclusion in a maintenance procedure 'according to the location, size and design of the PV array'. These activities include testing the operation of switches regularly. Mr Saunders said that that description could be considered to include the anti‑islanding switch. However, he did not think that it did.[30] AS 5033 does not include any specific reference to AIT.[31]
[29] A PV array is the multiple solar panels on a PV system.
[30] ts 145.
[31] Exhibit 33.
Mr Saunders was referred to the CER email. Mr Saunders said that the changes referred to in it related to earthing requirements. He said that he saw no reference in them to AIT.[32]
[32] ts 148.
In cross‑examination Mr Saunders said that he was aware that in the ACT if a customer wished to sell surplus electricity produced by their domestic PV system to the network there was a requirement for AIT to be performed every five years. He was not aware of a similar requirement in any other State.[33] Mr Saunders said that he had received information that a survey done recently by the ACT regulator found that 172 installations were tested and each of them complied with the Standards. Mr Saunders said that he regarded the ACT requirement as an additional safety guard with minor if any value.[34]
[33] ts 184.
[34] ts 187.
Mr Saunders said that he could not think of a single case in Western Australia where the anti‑islanding device had failed on a domestic PV system. He said that the results of the ACT survey tended to confirm that opinion. He said that if network operators required AIT to be done periodically it may simply be a contractual matter to protect their legal position.[35] In re‑examination Mr Saunders said that the information available was that domestic PV systems operated very reliably if installed properly.[36]
[35] ts 192.
[36] ts 200.
Mr Matthew Power was a federal public servant employed by the CER. When he gave evidence he was the manager for the scheme setting and coordination section. Prior to that he was the senior manager of the small scale renewable energy scheme. He said that the role of the CER was to administer a number of federal government clean energy policies, which included the renewable energy target.[37] Relevantly, when a domestic PV system is installed the CER administers the small scale technology certificate registry. It is unnecessary for me to describe the system in detail. The relevant point is that in order to obtain a certificate in relation to a domestic PV system it is a requirement that the system be installed by a licensed electrician and in accordance with the State or Territory statutory requirements. The federal government is not responsible for overseeing the installation of domestic PV systems.[38]
[37] ts 156.
[38] ts 158 ‑ 159.
The CER is only concerned about the installation of the system. There are no federal regulations concerning maintaining domestic PV systems.
When Mr Power was the manager of the small scale renewable energy scheme part of his role was to advise industry and other interested persons of changes to State and Territory electrical statutes and regulations. This was because in order to be eligible to claim the small scale technology certificates, installations from the date of those amendments needed to meet any new requirements. This was for future installations but did not apply retrospectively. The CER email was prepared as part of that process.[39]
[39] ts 160 ‑ 162.
Mr Power said that the changes to AS 5033 referred to in the CER email related to a requirement that all solar panels needed to be tested to meet a new fire testing requirement. Although Mr Power acknowledged that he was not a licensed electrician he did not believe that the new fire testing requirements related to AIT.[40]
[40] ts 163.
In cross‑examination Mr Power confirmed that a domestic PV system had to comply with the State or Territory requirements on the day that it was installed. If the relevant requirements including any Standards changed after that date it did not affect the validity of the small scale technology certificate issued in relation to the system.[41]
[41] ts 165 ‑ 166.
Mr Nigel Wilmot was the senior standards and policy engineer at Western Power. His role involved setting standards and policies for connection of renewable energy systems and generation. He had previously been a senior asset strategy engineer, a senior network engineer and also a network engineer at Western Power. When he was a network engineer he was involved in the investigation of complaints involving domestic PV systems.
At the time he gave evidence Mr Wilmot was the co‑chair of the Standards Australia Committee for AS EL‑042 Renewable Energy Power Supply Systems and Equipment - Energy Networks. He was also the chair of a Standards Australia sub‑committee for inverter systems and was involved in other sub‑committees which managed AS 4777 and AS 5033.[42]
[42] ts 202; exhibit 39.
Mr Wilmot worked closely with the program managers at Standards Australia to ensure that the above standards were updated. He was involved in the drafting of the Standards.
Mr Wilmot explained that Western Power provided the infrastructure to distribute and transmit electricity to the south west of Western Australia. The network included domestic PV systems.
Pursuant to the Electricity Networks Access Code 2004 (WA) chapter 12, Western Power was required to publish Technical Rules. The Technical Rules detailed the technical requirements to be met by Western Power on the transmission and distribution systems and by users who connect facilities to the transmission and distribution systems.[43]
[43] ts 204; exhibit 40.
Western Power also published the Western Australian Distribution Connections Manual 2013 (the Connections Manual).[44] The purpose of the Connections Manual was to provide a comprehensive single point of reference for industry and the community for an electrical connection of a customer's installation to the distribution network of Western Australia. The manual was intended to provide information to enable users to comply with their obligations.[45]
[44] Exhibit 41.
[45] Exhibit 41.
Mr Wilmot explained that AIT is referred to in AS 4777 pt 3. AIT is performed in a testing laboratory in order to establish that the inverter and associated grid protection device[46] will detect conditions which indicate that there is an island on the network. That test is undertaken prior to the equipment being sold. It is the manufacturer's obligation to prove that equipment complies with the Standard.[47]
[46] A grid protection device may be integral to the inverter or separate to an inverter energy system comprising multiple inverters (cl 4.1, exhibit 32.3).
[47] ts 206; exhibit 32.
AS 4777.3 cl 4.1 provided that:
Grid protection of the inverter energy system shall be provided by a grid protection device …
Compliance with this Standard shall be determined by type testing the grid protection device on its own and, if necessary, in combination with an inverter.
AS 4777.3 cl 5.1 provided that the grid protection device shall operate to prevent islanding. More specific requirements relating to islanding were contained in cl 5.2 ‑ cl 5.5. Relevant provisions of those clauses were:
(1)the grid protection device shall incorporate a disconnection device which shall prevent power from the inverter energy system entering the grid when the disconnection device operates (cl 5.2);
(2)the grid protection device shall incorporate at least one method of active anti‑islanding protection (cl 5.5);
(3)the active anti‑islanding protection system shall operate the disconnection device within two seconds of disruption to the power supply from the grid (cl 5.5);
(4)the internal settings of the grid protection device shall be secured against inadvertent or unauthorised tampering. Changes to the internal settings shall require use of a tool and specific instructions not provided to unauthorised personnel (cl 5.7); and
(5)compliance with the anti‑islanding protection requirements shall be determined by type testing in accordance with the anti‑islanding protection tests contained in Appendix B to the Standard (cl 5.8).
Appendix B stated:
To protect the electricity distribution network from islanding, the inverter shall disconnect from the electricity distribution network whenever the supply from the electricity distribution network is disrupted.
Anti‑islanding protection shall be assessed by means of the following tests.
Appendix B then set out a number of tests. The interpretation of those tests is a matter for an expert. I accept that Mr Wilmot is an expert in this regard. Mr Wilmot's evidence was as I have stated previously that AIT has to be performed in a testing laboratory and is undertaken prior to the sale of the system.
Mr Wilmot testified that a homeowner could not conduct AIT. They could conduct a disconnect test where the main power switch is turned off and it is ascertained whether the inverter and the grid protection device detected the lack of power from the grid and switched itself off.[48]
[48] ts 206 ‑ 207.
Mr Wilmot said that AS 5033 did not recommend AIT or a disconnect test as part of the maintenance for a domestic PV system. Neither did AS 5033 require AIT to be undertaken.[49]
[49] ts 207.
Mr Wilmot said that the Connections Manual did not require domestic PV systems owners to conduct AIT. However, it did say that the owner's obligation was to:
[E]nsure their electrical installation is used in the manner for which it was intended and is regularly maintained and remains hazard free.[50]
[50] Connections Manual cl 4.
The Connections Manual did not set out any recommendations for the type or timing of such maintenance. Mr Wilmot said that it was up to the user to decide those matters. Mr Wilmot considered that the types of maintenance that is recommended is cleaning of the modules, checking of the wiring, checking that all the switches are in good working order and various other checks.
Mr Wilmot said that the Western Australian Electrical Requirements, cl 6.2 which set out the responsibilities of the consumer and the network operator, who in this case would be Western Power, do not include AIT or a disconnect test.[51]
[51] ts 209; exhibit 31 cl 6.2.
Mr Wilmot said that Western Power had never disconnected a domestic solar PV system for failure to conduct AIT.[52] He said that there was no risk to the safety of workers if the test had not been completed after the system had been installed. He said that Western Power work practices and procedures ensure that workers do not work on live power lines.[53]
[52] ts 209.
[53] ts 210.
In cross‑examination Mr Wilmot acknowledged that he had always practised as an electrical engineer and was not an expert on safety. He agreed that EnergySafety WA would be the relevant experts for safety matters.
Mr Wilmot acknowledged that some people may refer to the disconnect test as AIT.[54] Mr Wilmot said that he was not familiar with the practices regarding AIT or the disconnect test in other States and Territories.
[54] ts 212.
Mr Wilmot acknowledged that the various regulatory documents required owners of domestic PV systems to comply with all applicable legislation and relevant Australian Standards and to maintain their systems in safe working order. There is also an obligation to comply with good industry practice.

The unsolicited consumer agreement charges - Mr Munro

Mr Munro gave evidence that in 2010 he had 24 solar panels installed on his property. He said that he purchased them from Solarshop.[55]
[55] ts 27. This is the spelling used in the transcript.
In 2013 Mr Munro received a telephone call from Clean Energy Enterprises Australia and the caller informed him that he needed an earthing kit in order for the proper functioning of the panels.[56] The caller did not speak to him about unsolicited consumer agreements, advise him about cooling off periods or mention a termination period.[57]
[56] ts 27.
[57] ts 28.
Mr Munro informed the caller that his panels were still under warranty and so 'they' should bear the cost of installing anything which was required for the proper functioning of the system. He was told that Solarshop was no longer operating the business and it was Clean Energy which was operating the business. Consequently Clean Energy would not bear the costs.
On 5 April 2013 Mr Munro received an email from Steven Fell whose email address was '@solarshop.com.au'. The email was addressed to Mr Munro and stated that 'we' recently contacted him regarding an upgrade that was available to his solar system which was 'originally installed by Solar Shop Australia Pty Ltd'. It said that the upgrade that was available would correct a negative earthing fault which was not identified when his system was originally installed. The email contained a representation that if the upgrade was not completed it may lead to possible corrosion on the electrical terminals of his solar system which may impact the performance of the system and its generating capacity.
It quoted that the cost to supply and install the upgrade and related costs ranged from $440 for a single inverter system to $915.15 for a four inverter system. The email invited Mr Munro to contact Mr Fell if he had further questions. It asserted that a $40 deposit was required to secure his booking and to order the upgrade.
At the bottom of the email the same footer appeared which had been on the attachment, being the words 'Solarshop', an address in South Australia and contact details. Underneath those details were the ACN and ABN of SSG Pty Ltd. Below that were the names of Clean Energy Enterprises, Commsolar and Commercial Power Solutions, together with their email addresses.[58]
[58] Exhibit 10.
Mr Munro telephoned 'Clean Energy Australia' and spoke to a person who persuaded him that he should have the NEK installed. He paid a deposit by credit card. He was not advised that after he had paid the deposit he could terminate the agreement.
After paying the deposit, Mr Munro reconsidered his position. He telephoned 'Clean Energy' and had a conversation with a person called 'Sim'. He told Sim that he would like his deposit back.
On 12 June 2013 Mr Munro sent an email to '[email protected]'. In it he said that he had paid a $40 deposit on 11 April 2013 for a NEK. He said that he had contacted the manufacturer of the solar panels and been told that the panels did not require a NEK, contrary to what he had been told by Clean Energy. He requested refund of his money. Mr Munro sent a further email on 30 June 2013 requesting the refund.[59]
[59] Exhibit 12.
Mr Munro's Mastercard statement showed that on 11 April 2013 an amount of $40 was debited to his account. The details of the transaction was stated to be 'Clean Energy Enterpris Port Melbourne Vic Aus'. Mr Munro's bank account statement showed that on 1 August 2013 a credit of $40 was made to the account. The particulars were 'Bank of QLD soalr (sic) shop refund'.[60] Mr Munro did not receive any paperwork about his agreement or the deposit he had paid.
[60] Exhibit 2.
In re‑examination of Mr Cobb the appellant tendered what Mr Cobb said was an invoice. It was addressed to Mr Munro and dated 31 July 2013. It described Mr Munro's order as an NEK installation but did not include a price for it. Underneath the description it stated:
Roman approved refund of $40 on 24/7/13. Emailed customer for bank details on 24/7/13. Refund paid 31/7/13.
The document stated that it was printed from MYOB and referred to SSG Pty Ltd's 'NGT ACCOUNTS'. However, there is nothing in the document which indicated that the $40 was either paid to or refunded by SSG Pty Ltd.[61]
[61] Exhibit 49.
In cross‑examination of Mr Munro a copy of the quotation Mr Munro had received for the initial supply of the solar panels in 2010 was tendered. This showed that the quote had been supplied by 'Solar Shop Australia'. The logo, which was different to the Solarshop logo, referred to 'Solarshop Australia'. It contained the ABN number of Solarshop Australia Pty Ltd. The email address which was printed on the quotation was '[email protected]'.[62]
[62] Exhibit 13.
Mr Munro said that after he had received the email from Mr Fell, he did not ring him. That was because he believed that Mr Fell was an installer and that he should speak to Clean Energy Australia.[63]

The unsolicited agreement charges - Mr Ward

[63] ts 38 ‑ 39.

Mr Stephen Ward gave evidence that he had a domestic PV system installed in his premises in about 2011. In July 2013 he received a phone call from another firm. The caller discussed with him the need for an ongoing inspection that was required for the system. He was told that that firm had taken over from the original installer of the panels because they had become insolvent.[64]
[64] ts 119 ‑ 120.
Mr Ward asked the caller to send him an email. On Friday, 5 July 2013 Mr Ward received an email from '[email protected]'. The email was signed off from Kym Mercer. Beneath the sender's name was the Solarshop logo, with the address in South Australia and the website address ' Underneath the web address was the two line reference to Clean Energy Enterprises Group and 'Solarshop/Commsolar/Commercial Power Solutions'.[65]
[65] Exhibit 28.
The email contained the representation. It stated that AIT was a requirement under State and Federal Electricity Distribution Regulations and that it was the responsibility of all domestic PV system owners to carry out the testing. It further said that it was a legal requirement to:
Identify that your Solar PV system is correctly connected to the Electricity Network, and complies with State and national Governments Electricity Distribution code, the electricity Safety Act 1998 as well as any other Australian Standards.[66]
[66] Exhibit 28.

The email included the CER email and the CitiPower and Powercor Grid - Connected Renewable Energy Systems Technical Guidelines. It also included a copy of a newspaper article from The Age newspaper dated 27 May 2013 entitled '1 in 5 home solar panels systems "substandard" '.
On 31 July 2013 Mr Ward arranged for a deposit of $50 for the testing to be deducted from his bank account to pay 'Clean Energy Enterpris Port Melbourne VIC Aus'. The email Mr Ward received stated that the cost to check and maintain the system integrity was $330. Mr Ward did not receive any paperwork after paying the deposit.
On 1 August 2013 Mr Ward sent an email to 'Generic User 5'. It advised that he had further investigated the issue. He requested a refund of his money immediately on the basis that he was not required to undertake the work as claimed. About five days later Mr Ward received a refund of his money.[67]

The unsolicited consumer agreement charges and the refund charge - Ms Wollacott

[67] ts 123.

Ms Beatrice Wollacott gave evidence that she had a domestic PV system installed in her premises in 2009 and 2010 by Solarshop.
On 27 June 2013 Ms Wollacott received a phone call from a person who identified themselves as Laura Mele. Ms Wollacott was told that her solar panels may be faulty and incorrectly installed. Ms Mele told her that Solarshop 'had gone bust' and that 'they had bought them out'.[68] Ms Wollacott asked Ms Mele to send her an email because she had difficulty understanding what Ms Mele told her.
[68] ts 169.
On the same date, Ms Wollacott received an email from '[email protected]'. The email was signed off from Ms Mele. Beneath the sender's name was an image which has been redacted from the exhibit and identical information to that contained in the email to Mr Ward.
The email contained the representation. Other representations that I have quoted in the emails sent to Mr Ward and other consumers.
Ms Wollacott was concerned about the safety of her domestic PV system. In a series of phone calls between herself and Ms Mele she was told by Ms Mele that she could be audited and that she was breaking the law. Around the beginning of July 2013 Ms Wollacot paid a $50 deposit for the testing to be done on her system. Bank records were tendered which showed a $50 debit from an account on 28 June 2013 to 'Clean Energy Enterpris Port Melbourne AU'.[69]
[69] Exhibit 4.
Ms Wollacott contacted Consumer Protection when she did not hear anything within the three days in which she was promised that someone would contact her to make a booking to do the test. On 10 July 2013, Ms Wollacott wrote to Ms Mele requesting further advice as she had not heard anything.[70]
[70] Exhibit 37.
Ms Wollacott said that she phoned three or four times to try and get her deposit back. At the end of August 2013 she received a phone call from a person who tried to book the testing. Ms Wollacott said that she did not need to have the test and she wanted it to be cancelled and her deposit refunded. Ms Wollacott received a refund during the week prior to her testimony on 27 July 2016. Mr Cobb testified that he instructed his solicitors to refund the money on his behalf.[71]

The investigation - Chad Prout

[71] ts 303 ‑ 304.

The respondent gave evidence that he was a senior investigator with the retail building and services branch of Consumer Protection.
On 11 July 2013 the Department of Commerce issued a media statement which stated that consumer protection were investigating reports from Western Australian consumers who had been approached by a solar panel company to conduct testing on their units which may not be necessary. The statement identified the test as AIT and said that the company was 'falsely claiming that this annual test is mandatory under WA Law'.[72]
[72] Exhibit 20.
On 22 November 2013 a letter was sent to Mr Cobb in his capacity as director of the appellant. Enclosed was a copy of a media statement which the Commissioner for Consumer Protection (the Commissioner) intended to publish. The letter also stated that the Commissioner had received multiple complaints from consumers concerning the appellant and that these allegations involved false or misleading representations with respect to the need for goods and services, warranty provisions and non‑provision of information and termination rights relating to unsolicited consumer agreements. The enclosed media statement dated November 2013 was headed 'Warning about solar panel company misleading consumers (Solarshop and Clean Energy Enterprises)'. The media statement said:
Solar Shop Group Pty Ltd and sole Director Mr Daniel Cobb, based in Cremorne, is charging WA consumers $330 for [AIT] and falsely claiming that this annual test is mandatory under WA law. Consumer Protection has received 53 formal complaints from Solar Shop customers since October 2012, as well as from customers of an associated company Clean Energy Enterprises Pty Ltd of which Mr Cobb is also sole Director.[73]
[73] Exhibit 21.
The accompanying letter said that Mr Cobb and the appellant had until 27 November 2013 to provide any comment or make an objection to the proposed media statement. It also said that the warning related to some aspects of an ongoing investigation into 'Solar Shop's activities'. It advised that in due course Mr Cobb may be invited to attend an interview to discuss 'this and other aspects of the investigation' and that his attendance at any such interview would be voluntary.[74]
[74] Exhibit 21.
Mr Cobb replied by a letter which was sent to the Department of Commerce in December 2013. Mr Cobb said that for the purposes of his submission he would refer to both SSG Pty Ltd and the appellant as 'Solar Shop as both parties have been jointly named and referred to' in the correspondence. The submission responded to the allegation that representations made to customers were not true. It did not distinguish between SSG Pty Ltd and the appellant or any other company. The letter was signed by Mr Cobb as managing director. Directly underneath his name and position was a logo with the words 'Clean Energy Enterprises' as part of it. There was then an address in Port Melbourne, Victoria and contact telephone and fax numbers. Underneath those details was an email address '@cleanenergyenterprises.com.au' and an internet address which also used 'cleanenergyenterprises.com.au'. Immediately underneath the internet address were the words 'Clean Energy Enterprises Group' and on the last line a reference to 'Solarshop/commsolar/commercialpowersolution'.[75]
[75] Exhibit 24.
In relation to the representations, Mr Cobb said that 'we' had never charged $330 for AIT. He said that the only product 'we' sell for $330 is the preventative maintenance programme which includes the 31 point check and AIT. Mr Cobb asserted:
It is irresponsible and potentially negligent for any message to be put to consumers that 'it is not necessary' for consumers to have their PV systems tested and maintained. Given that independent investigations by the Clean Energy Council and the University of Western Australia have found that up to half of PV instals in WA are defective, it should in fact be a message further promoted.[76]
[76] Exhibit 24, page 2.
Mr Cobb said that 'our position' is that WA consumers have an obligation to maintain their domestic PV systems under a number of legislative and regulatory requirements, network connection agreements, industry best practice and various Australian standards. Mr Cobb referred to the WA Electrical Requirements, and obligations in the Connections Manual, which stated that all privately owned generating installations, whether network connected or stand alone, must comply with those statutory and regulatory requirements including relevant Australian standards. It said that a network operator may refuse to connect or may disconnect a customer's generating equipment from the distribution network if the equipment is deemed unsafe to network staff, system users or industry operatives.
In relation to the investigation into alleged breaches of the ACL, Mr Cobb requested the right to participate in a recorded interview to address the issues and answer any allegations. He concluded with the statement:
I believe we are a significant business leaders in the Solar Industry nationally, with the 2^nd largest customer base in Australia and can greatly assist the department and the commissioner in these matters.
On 15 January 2014 the respondent sent a letter with various attachments to it to Mr Cobb in his capacity as director of SSG Pty Ltd and the appellant trading as 'Solar Shop'. The letter advised Mr Cobb and the appellant of the allegations, the subject of these charges and the provisions of the ACL which the respondent relied on. It stated that Mr Cobb had an opportunity to take part in a voluntary recorded interview concerning these allegations.
The voluntary interview took place on 21 January 2014 between the respondent and Mr Cobb.[77] Relevantly, Mr Cobb stated that SSG Pty Ltd was the employer of the approximately 28 employees of Solar Shop.[78] Six of these were sales staff who operated from various States.
[77] Exhibit 23.
[78] This is the spelling and capitalisation used in the transcript of the recorded interview.
Mr Cobb said that over the previous six years he had purchased his brother's company, Premier Solar, and 'about 14 different businesses' which then formed the 'Clean Energy Enterprises Group'. The corporate entities traded under three brand names, being 'Solar Shop Group', 'Commsolar' and 'Commercial Power Solutions'. Mr Cobb said that one of the businesses was residential, one was business and one was large‑scale power stations. Later in the interview he identified Commsolar as being the power station business.
Mr Prout asked Mr Cobb 'at what point do customers sign contracts with the Solar Shop?'[79] Mr Cobb responded by using the pronouns 'us' and 'we' and did not seek clarification as to which company Mr Prout was referring to.
[79] ts 41.
Mr Cobb said:
(1)'We know exactly what's required with unsolicited agreements'.
(2)'We approached this campaign as if these are all existing customers'. [80]
(3)'We've taken over a number of obligations with those customers, which we didn't have a legal obligation to, but we don't treat them any worse than our existing customers'.[81]
(4)'It would have been far more prudent for us to have … a completely different set of documentation for every single State'.
(5)'We took the best industry practices which were adopted in Victoria, because they're the most strictly regulated, and the others are following'.[82]
[80] Interview transcript page 134.
[81] Interview transcript page 44.
[82] Interview transcript page 101.
Mr Cobb was also asked about the representation.
Mr Cobb attempted to justify his belief in the truth of the representation by referring to the following documents:
(1)Western Power's Network Connection Agreement (NCA) which each customer signed which said that a domestic PV system was compliant with AS4777, which included AS/NZS3001‑3000;[83]
[83] Interview transcript pages 112 ‑ 113.
(2)Western Power's NCA which said that a domestic PV system was compliant with the Western Power's Technical Rules; and
(3)The Technical Rules 3.7.7 which stated that:
3.7.7Protection
An inverter energy system connected to the distribution system must be approved by the Network Service Provider and meet the requirements of relevant standards in accordance with clause 3.7.3 and the following requirements below.
(a)…
(b)A User must maintain the integrity of the protection and control systems of the inverter energy system so that they comply with the requirements of these Rules, AS4777‑2005 and the connection agreement at all times.
3.7.7.1Islanding protection
The islanding function must be automatic and must physically remove the inverter energy system from the distribution system. The islanding protection must be capable of detecting loss of supply from the network and disconnect the inverter energy system from the distribution system within 2 seconds.
Mr Cobb asserted that AIT was a mandatory part of AS4777. Mr Cobb acknowledged that since the Department of Commerce had raised the issue Western Power had been 'very vague and evasive about the issue'. That is, Western Power had refused to say that AIT was mandatory or not.[84]
[84] Interview transcript page 119.
Mr Cobb was also asked about the following representation in the emails and the attachment:
As part of the mandatory [AIT], the Solar Shop is carrying out a 31 point service check to ensure your solar system is in line with current state and federal standards. This is a requirement to maintain your installation warranties moving forward.[85]
[85] Interview transcript page121.
Mr Cobb said that the quoted passage had mixed up two messages in one sentence. He said it was a requirement of the 'solar panel manufacturers' performance warranties and the inverter companies that their systems were maintained'. He acknowledged that was a separate issue to the requirements of network operators and government regulators to maintain the systems. He acknowledged that 'we' could have done some things better in the paperwork that was given to customers.[86]
[86] Interview transcript page 122.
Mr Cobb said:
And it would be stupid of me to defend the fact that some of the supporting documents that were sent out are not as appropriate as a Western Australian document.[87]
[87] Interview transcript page 123.
Mr Cobb said that the documents proved that it was mandatory for customers to maintain their systems but he accepted that it was a grey area as to how often they should be maintained.[88]
[88] Interview transcript page 124.

The appellant's case

Mr Cobb was the only witness called by the appellant. He testified that he had 'started' the appellant. Mr Cobb said that he held his shares in the appellant for his family trust through the trustee company Cobb Corp Pty Ltd acting as trustee for the Cobb Family Trust.[89]
[89] ts 253.
Mr Cobb said that the appellant did not sell any products or services to consumers or businesses. He said that it was 'a shared resource company for the other companies' he had 'in the group'.[90]
[90] ts 251.
He said that the appellant also provided those facilities, like 'a service office type business' to other 'customers outside of the group'. He said that the appellant provided shared services to other companies such as leasing premises which it then sublet to various companies within his 'group' or to external parties. It also provided phone systems, IT infrastructure and 'the sorts of things that rather than duplicating across multiple brands, it's just a do it once, have one shared facility and cross‑charge it out'.[91]
[91] ts 253.
Mr Cobb named Commsolar Pty Ltd, Commercial Power Solutions and SSG Pty Ltd as part of 'the group'.[92] Mr Cobb said that one of the shared services that the appellant offered across 'all our companies and for some other providers' was 'a merchant facility'. By the merchant facility he said that this meant that the appellant took payments on behalf of other 'people' for a small fee and then passed the funds to 'those providers'. He said that the reason for that was that in the solar industry it was very difficult to obtain merchant facilities. Whereas the appellant being in a different industry was able to obtain the merchant facilities and get good rates on credit facilities.[93]
[92] ts 253. In the transcript SSG Pty Ltd is spelt as Solarshop Group Pty Ltd but I understand that this is in fact SSG Pty Ltd.
[93] ts 254.
Mr Cobb said that the general manager of SSG Pty Ltd was his brother, Martin Cobb. He said that there were three key people who reported to Mr Martin Cobb. These were the national sales manager, Roman Voloshin, the operations manager whose name was John and the financial controller, Mena Ferriera.
The business of SSG Pty Ltd was to sell solar products to residential customers. The main product was domestic PV systems. SSG Pty Ltd also had 'a fairly substantial maintenance business of domestic PV systems'.[94]
[94] ts 254.
Mr Cobb said that in 2011 'we' took over Solarshop Australia.[95] Its commercial customers were transferred to Commercial Power Solutions. Very large customers were handled by Commsolar. SSG Pty Ltd did the residential products and services. [96]
[95] I have inferred that this was a reference to Solar Shop Australia Pty Ltd.
[96] ts 255 ‑ 256.
Mr Cobb said that people such as Ms Mercer, Mr O'Brien, Mr Lannon, Mr Ahmed and Mr Fell who had contacted the residential customers about AIT and the 31 point check worked for the Chameleon Call Centre which was a company based in North Melbourne. It provided direct sales staff, call centre staff and customer service staff to the energy sector.[97]
[97] ts 257.
Mr Cobb said that his understanding was that SSG Pty Ltd hired Chameleon. He said that when 'we started to do this maintenance program' Mr Voloshin wanted to use a specialist operator that he trusted. He said that the appellant did not hire Chameleon to perform any services for it. The only services that Chameleon provided were for SSG Pty Ltd and SSG Pty Ltd paid Chameleon.[98]
[98] ts 259.
Mr Cobb testified that SSG Pty Ltd contracted with Rainey Electrical to perform electrical work on domestic PV systems in Western Australia. Mr Cobb produced a copy of a short document entitled '[NEK] Perth Metro Installation Agreement' between SSG Pty Ltd and Rainey Electrical Services regarding installation of NEK in the Perth metropolitan area. The document was signed by Mr Voloshin as a 'Solarshop representative' and dated 4 February 2013. The agreement contained the Solarshop logo. It also had the same footer which referred to the appellant, Commsolar and Commercial Power Solutions, as printed on the attachment.[99]
[99] Exhibit 42.
Through Mr Cobb the appellant also tendered a SSG Pty Ltd document entitled 'GCS Service Checklist' which Mr Cobb said was a document a customer received when an electrician performed the 31 point check. Accompanying that was another SSG Pty Ltd document entitled 'GCS Service Checklist - Supplementary Notes' which he said was a set of instructions to the electrician that performed the test.[100] The GCS Service Checklist did not refer to AIT.
[100] Exhibits 43 and 44.
Through Mr Cobb, the appellant tendered documents from network providers in the ACT and Victoria which required AIT or what Mr Wilmot had described as a disconnect test to be performed as part of regular maintenance on domestic PV systems.[101] Mr Cobb said that some network operators in Victoria had shut down some of Solarshop's customers systems which had not been maintained and where there was no proof that AIT had been performed.[102] He said that 'Consumer Affairs'[103] had told 'us' that it was 'our' responsibility to inform customers of their obligations in these regards.[104]
[101] Exhibits 45 and 47.
[102] ts 265.
[103] I assume he is referring to Consumer Affairs in Victoria.
[104] ts 265.
In cross‑examination Mr Cobb gave further evidence about the purchase of the assets of 'Solarshop Australia'.[105] He said that they were acquired by Australian Solar Electrics, which was his brother's company. Mr Cobb acted as guarantor of that transaction. The assets were then broken up. The intellectual property owned by Solarshop Australia became the property of Cobb Corp[106] as trustee of the Cobb Family Trust. This included the Solarshop logo.[107] It then licensed other companies to use that intellectual property.
[105] This seems to be a reference to Solarshop Australia Pty Ltd.
[106] This seems to be a reference to Cobb Corp Pty Ltd.
[107] ts 281.
Cobb Corp also owned the customer lists from Solarshop Australia. Mr Cobb said that when SSG Pty Ltd was registered it was granted a licence to use the Solarshop trademarks and systems. The appellant was granted licences to use some of Solarshop Australia's software and systems that 'we' use for the phones and some of the network service.[108] He denied that the appellant obtained a licence to use the Solarshop logo.[109]
[108] ts 280 ‑ 281.
[109] ts 281.

Respondent's contention

The Criminal Appeals Act 2004 (WA) s 14(3) states:
The Supreme Court is not required to set aside or vary a decision of a court of summary jurisdiction because the court omitted to make any necessary finding of fact if the facts or evidence -
(a)in substance support the decision; or
(b)justify the finding,
and the Supreme Court, under subsection (1), may instead either vary the decision or substitute another decision for it.
Pursuant to s 14(3) the respondent contends that if the magistrate erred in concluding that the appellant carried on the business of 'Solar Shop'[172] and thereby had engaged in the conduct the subject of the charges, the appellant could be convicted of the false or misleading charge 'by reason of its name appearing on those communications for the purpose of promoting the connected nature of the businesses in the appellant's group'.
[172] I will use the spelling Solarshop even though the respondent uses 'Solar Shop'. I have previously found that the magistrate did not find that the appellant was carrying on the business of Solar Shop but that she did find that the appellant was carrying on the business of Solarshop.
The respondent contends that:
(1)even if the appellant was not carrying on the business of Solarshop the appellant can at law have made the relevant representation because a representation can be made by more than one person;[173]
(2)the evidence did not establish any basis for asserting that any entity other than the appellant was at the head of the Clean Energy Enterprises Group or that references to Clean Energy Enterprises were references other than to the appellant;
(3)Mr Cobb gave evidence in cross‑examination that:
(a)'We were going through a public listing process for Clean Energy Enterprises';[174]
(b)in response to the proposition that 'Clean Energy Enterprises, by allowing Solarshop to use its name, its website, on the material that's being sent out to consumers, wanted to be associated with Solarshop?' he answered 'Well, we're proud of the relationship that exists between the two companies';[175]
(c)the inclusion of the Clean Energy Enterprises name on the correspondence to the consumers was for marketing purposes;[176]
(4)the inclusion of the appellant's name in the attachment and emails went beyond benign association between different entities within a group; and
(5)the appellant was at the head of a group of related companies which it 'looked after'[177] and it was to be publicly listed.
[173] Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) 134 FCR 585 [31], [37] (Moore & Mansfield JJ); [65] (Stone J); Ackers v Austcorp International Ltd [2009] FCA 432 [154].
[174] ts 283.
[175] ts 284.
[176] ts 284.
[177] Reasons for decision [68]; ts 282.
Therefore the respondent says that the appellant adopted and endorsed what was said in the emails and the attachment sent as part of the business of one of its brands 'which traded under its banner'. Thus, he submits that any representations made in the course of the business of Solarshop were representations made by the appellant.
I take issue with the last proposition. I accept that the law provides that if as it did the appellant agreed to its name being put onto Solarshop's written material which it knew was being given to customers by a related entity then it may be held to have made the representations contained in the written material. However, the law does not provide that any representation made in the course of business related entities is made by all the entities. That is not the law unless the corporate veil is lifted or pierced and that is not why the respondent in its Notice of Contention says the appellant should be found guilty of the false or misleading charge.
The appellant does not dispute that it is possible for more than one person to make a representation. However, it disputes the fact that 'mere communication of a commonality of business interests between one company and another can be a basis for finding that the companies have somehow made the representations made by each other'.[178]
[178] Appellant's response to respondent's notice of contention [4].
The appellant contends that before the appellant could be found liable for representations made by SSG Pty Ltd which it says carried on the business of Solarshop it must be proved that the appellant 'knew of, prepared, specifically directed, vetted, approved or adopted the specific content of the representation' that was made.[179]
[179] Appellant's response to respondent's notice of contention [12].
As I have indicated it is true that the respondent's submissions include a broader proposition than the one contended for in the Notice of Contention. However, it is appropriate that I address the more narrow contention contained in the notice. It is that the appellant should be convicted of the false or misleading charge on the basis that it made the representation the subject of that charge by reason of its name appearing on those communications for the purposes of promoting the connected nature of the businesses in the appellant's group. Further, in its written submissions it relied upon the evidence which I have particularised in [241]. The respondent specifically submitted that the inclusion of the appellant's name in the relevant documents containing the representations went beyond 'benign association between different entities within a group'.
The appellant relies on Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd (t/as Bet365)[180] where Beach J in the Federal Court ruled that a holding company, Bet365 Group Ltd (Bet365GL), was not liable for representations made by its subsidiaries, Hillside Australia or Hillside UK. It is important to note that in that case Bet365GL's name did not appear on the relevant promotions. Although Bet365GL owned the registered Australian trademark for 'bet365' and it was also the registrant of domain names 'bet365.com.au' and 'bet365.com', it had licensed and authorised the use by Hillside Australia of the trademark and the domain name 'bet365.com.au'.[181]
[180] Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd (t/as Bet365) [2015] FCA 1007.
[181] Ibid [13].
Beach J found that the ACCC had not made out its case against Bet365GL that it was a principal contravener. The relevant reasons given by his Honour for that conclusion were in summary:
(1)the mere fact that Bet365GL was the parent company of a global group or that it was the ultimate parent and controlling entity of Hillside Australia did not establish Bet365GL's liability [141];
(2)Hillside UK, not Bet365GL, was the main operating entity for the group and provided shared services to the rest of the group [142] ‑ [146];
(3)there was no direct evidence of any day‑to‑day control or direction by Bet365GL of the conduct of Hillside UK and Hillside Australia [147];
(4)the licensing of trademarks or a domain name without more did not establish Bet365GL's liability as a principal [150];
(5)there was no evidence suggesting that Bet365GL had given or issued any specific instruction, direction or request to Hillside Australia or Hillside UK during the relevant period concerning the use of the domain name, the content of the website or offers of incentives to new customers to open accounts [151];
(6)the fact that the group, including Bet365GL, had global promotional activities which, to Bet365GL's knowledge, include that its subsidiaries were to and did offer open account incentives using the trademark 'bet365' and on websites with domain names incorporating the name 'bet365', did not prove the offence [154];
(7)the fact that Bet365GL has 'bet365' in its name did not establish its involvement in the impugned conduct [155];
(8)the fact that there were common or overlapping directorships or a common general counsel did not per se establish control in the relevant sense [156];
(9)alleged admissions were not made by someone able to make admissions on behalf of Bet365GL [157];
(10)no question of ostensible authority arose in the case [158]; and
(11)Ackers v Austcorp was distinguishable on its facts. Further, the present case was not of a type where the holding company communicated to the public or the relevant class that it adopted or endorsed for itself what its subsidiary represented in terms of the specific promotions [159].
The determination of whether the appellant should be found guilty of the false or misleading charge on the basis that it made the representation the subject of the charge by reason of its name appearing on the attachment for the purposes of promoting the connected nature of the businesses in the appellant's group must be determined according to the factual context of this particular case. To that extent other cases which turn on their factual circumstances are not directly applicable.
The factual context includes that the appellant was SSG Pty Ltd's ultimate holding company, that Mr Cobb was the sole director and secretary of SSG Pty Ltd and the sole director of the appellant.
It is also necessary for me to accept Mr Cobb's evidence when I determine whether the evidence proved that the appellant was guilty on this basis. It would not be fair for me to find that the magistrate erred in failing to give adequate reasons for rejecting his evidence and then for me to reject it also without having heard and observed him give evidence.
Thus, I accept for the determination of the Notice of Contention Mr Cobb's evidence that:
(1)the appellant was not the dealer or supplier of AIT or the 31 point check. Rather, it was SSG Pty Ltd that was the supplier and dealer of those services;
(2)SSG Pty Ltd was primarily responsible for the marketing campaign for AIT and the 31 point check including the use of the Chameleon Call Centre and preparing and sending the emails and the attachment;
(3)Mr Cobb's shares in the appellant were held by him on behalf of Cobb Corp Pty Ltd as trustee of the Cobb Family Trust;
(4)the appellant did not sell any products or services to consumers or businesses. It was a shared resource company for other companies in the Clean Energy Resources Group;
(5)other entities in the group included SSG Pty Ltd which provided domestic PV system products and services, Commsolar Pty Ltd and Commercial Power Solutions;
(6)the general manager of SSG Pty Ltd was Mr Cobb's brother, Martin Cobb. There were other key people who reported to Martin Cobb;
(7)the Clean Energy Enterprises Group had taken over Solarshop Australia Pty Ltd and its business had been broken up between the various entities in the group;
(8)the right to use the Solarshop brand and logo had been transferred to SSG Pty Ltd;
(9)on the advice of 'the marketing people', the appellant permitted SSG Pty Ltd to put its name and the names of other entities in the Clean Energy Group onto its correspondence as a means of promoting that the Solarshop business was part of a bigger group;[182]
(10)Mr Cobb did not approve the attachment; rather Mr Voloshin had the delegated authority to do that;
(11)Mr Cobb was aware at the time it was being distributed that the attachment was being sent to consumers;
(12)After the Department of Commerce's media statement was brought to his attention in July 2013 Mr Cobb was aware that SSG Pty Ltd made no change to its correspondence with consumers; and
(13)Mr Cobb had the ultimate say in whether it was sent out, if he had chosen to exercise that say.[183]
[182] ts 284.
[183] ts 285.
The correspondence between the parties proves that the appellant and Mr Cobb were aware sometime in July that the Commissioner considered that the appellant, SSG Pty Ltd and Solarshop were falsely claiming to consumers that AIT was a mandatory test under Western Australian law. In January 2014 Mr Cobb took part in an interview with the respondent where the allegation that the attachment included false or misleading statements about the requirement for AIT in Western Australia were discussed.
Despite being aware of this Mr Cobb on behalf of the appellant did not stop the emails and the attachment with the appellant's name and email address on it being sent to consumers. For example Mr Little and Ms Morrison received the attachment on 15 July 2014, Mr Rendtorff received the attachment on 7 August 2014 Mr Jeffreys received the attachment in May 2014 Mr Giele and Ms Barnes received the attachment on 15 July 2014. The email received by Mr Rendtorff contained the appellant's name in bold and asserted that the author worked for the appellant.[184]
[184] Exhibit 14.
The appellant disputes that any relevant representation by it was made in trade or commerce. It is not in dispute that the respondent had to prove that the appellant was acting in trade or commerce when it made the representation.[185]
[185] The ACL s 151(1).
The term trade or commerce is defined to mean:
(a)trade or commerce within Australia; or
(b)trade or commerce between Australia and places outside Australia;
and includes any business or professional activity (whether or not carried on for profit).[186]
[186] The ACL s 2.
The appellant relies on what was said in the judgment of the plurality in Concrete Constructions (NSW) Pty Ltd v Nelson[187] about the meaning of the term trade or commerce in the Trade Practices Act 1974 (the TPA). Without deciding whether the definition in the ACL is broader than that in the TPA, I am of the opinion that the respondent proved that the appellant was acting in trade or commerce when it made the representation.
[187] Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594.
In Concrete Constructions the plurality considered alternative meanings of the phrase and determined that the reference to conduct 'in trade or commerce' in the TPA s 52 should be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. In justifying this conclusion, their Honours said:
What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public.[188]
[188] Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, 604.
I am satisfied beyond reasonable doubt that the appellant made the representation to consumers with whom the appellant and SSG Pty Ltd had dealings in the course of promotional activities for the purpose of supply of AIT and other maintenance services to potential customers. This is so even accepting that SSG Pty Ltd was the supplier and dealer of such services. The appellant was the provider of shared services to SSG Pty Ltd. It was the holding company of SSG Pty Ltd. It was in SSG Pty Ltd's commercial interests to be associated with the Clean Energy Group of companies of which the appellant was part. If SSG Pty Ltd attracted business by virtue of the attachment then that was in the appellant’s commercial and business interests. I have no difficulty in concluding that the appellant made the representation in trade or commerce.
I am satisfied beyond reasonable doubt that from July 2013 to August 2014 the appellant itself made a false or misleading representation as to the need for AIT testing in circumstances where it knowingly allowed its name to be placed on the attachment when the representation contained in the attachment was false and the appellant knew that the representation as to the need for AIT testing was considered to be false or misleading by the regulatory authorities. I also take into account that it was not clear from a simple reading of the attachment that it was in fact prepared and issued on behalf of SSG Pty Ltd.
I emphasise that this finding is not based on any assertion that the appellant controlled the actions of SSG Pty Ltd. It is based on the fact that the appellant knowingly allowed its name to be placed on the document that contained the representation and that when it did so it knew that the representation was contained in the attachment and that it was regarded to be false or misleading by the regulatory authorities. The conduct of the appellant in allowing its name to be placed on the attachment created a situation in which consumers would associate it in trade or commerce as a promoter of AIT for the reasons represented in the attachment. The appellant was conducting itself in trade and commerce. The message which the appellant wished to pass to the consumers was that it was associated with Solarshop and in that context that the attachment and the representation in it was not only Solarshop's document but it was also the appellant's document. Therefore I uphold the respondent's Notice of Contention in respect of the false and misleading charge.

Conclusions

For the foregoing reasons I would make the following orders:
(1)the appellant is granted an extension of time within which to appeal;
(2)the appellant is granted leave to appeal on all grounds;
(3)the respondent's Notice of Contention is upheld;
(4)the appeal against PN 17685/2015 is dismissed;
(5)the appeal is allowed in respect of all other charges; and
(6)the convictions in respect of all other charges are set aside.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE JENKINS
22 JUNE 2018

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ACN 158 148 951 PTY LTD -v- PROUT [2018] WASC 190 (S)
CORAM:   JENKINS J
HEARD:   22 JUNE 2018 & ON THE PAPERS
DELIVERED          :   9 OCTOBER 2018
FILE NO/S:   SJA 1008 of 2017
BETWEEN:   ACN 158 148 951 PTY LTD
Appellant
AND
CHAD ANTHONY PROUT
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S DE MAIO
File Number            :   PE 26933-26955 of 2015

Catchwords:

Criminal law - Appeal against conviction - Appeal allowed - Convictions set aside - Order to be made where charges not remitted to Magistrates Court

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)

Result:

Acquittals entered on PE 17686-17707/2015

Category: B

Representation:

Counsel:

Appellant	:	Mr G M Cridland
Respondent	:	Mr J L Derby

Solicitors:

Appellant	:	GG Legal
Respondent	:	Consumer Protection Legal Unit

Case(s) referred to in decision(s):

ACN 158 148 951 Pty Ltd v Prout [2018] WASC 190
Burrell v The Queen [2008] HCA 34

JENKINS J:

On 22 June 2018 I published my reasons for decision in this appeal.[189] These reasons should be read in conjunction with the reasons I published. I made the following orders:
[189] ACN 158 148 951 Pty Ltd v Prout [2018] WASC 190.
1.Appellant is granted an extension of time within which to appeal.
2.Appellant is granted leave to appeal on all grounds.
3.Respondent's notice of contention is upheld.
4.Appeal against PN 17685/2015 is dismissed.
5.Appeal is allowed in respect of all other charges.
6.Convictions and sentences in respect of all other charges[190] are set aside.
[190] PE 17686-17707/2015. In my reasons published on 22 June 2018 I referred to these charges as the unsolicited consumer agreement charges which is how I will refer to them throughout these reasons.
7.The costs order made by the Magistrate is set aside.
8.The costs in the Magistrates Court and the cost of the appeal are reserved to judge's chambers.

The appellant asked me to make order 6 above.
On the same date the respondent applied orally for an order remitting the unsolicited consumer agreement charges to the Magistrates Court in case the respondent wished to have them reheard. I refused to make the order and gave oral reasons for my decision as follows:
The difficulty which I see with that is that I have upheld the respondent's notice of contention in respect of the first charge, which proceeds on the basis … that the appellant is not the supplier or dealer. Rather, … Solarshop Group Pty Ltd was, in effect, the supplier and dealer but that the appellant was a co‑representor with Solarshop Group Pty Ltd in respect of the representations made to the consumers but not as a supplier or dealer.
In order to be guilty of the offences that we're now discussing, … it has to be on the basis that the appellant is the supplier and dealer. It would seem to me to be inconsistent with the notice of contention which the respondent relied upon and which I have upheld for the respondent then to go back to the Magistrates Court and, in fact, assert at a re‑trial that the appellant was the supplier and dealer. Consequently, I'm not minded to grant an order for a re‑trial. …
Well, not so much make an order for a re‑trial but to remit the charges to the Magistrates Court for that possibility.[191]
[191] 22 June 2018 ts 72.
After I delivered my oral reasons for refusing to remit the unsolicited consumer agreement charges to the Magistrates Court I queried whether it followed that I should dismiss those charges. I left it open to the appellant to seek that order as well as costs orders pursuant to order 8.
On 1 August 2018 the court received a letter from the appellant's solicitor in effect asking how the court would like to deal with a further application by the appellant for an order that the appellant be acquitted of the unsolicited consumer agreement charges or that the charges be dismissed.
On 2 August 2018 the court advised the parties that I would determine the issue on the papers. Directions were given to the parties to file written submissions in support of their respective positions.
On the same date, by consent, I made costs orders.
These are my reasons for acquitting the respondent of the unsolicited agreement charges.
Neither party asserted that there was an issue as to whether I had the power to make further orders given that the orders made on 22 June 2018 would have been the final orders made in the appeal if this application had not been made. However I have considered that issue and determined that I retain the power to make further orders in the appeal.[192] This is because the judgment made on 22 June 2018 has not been perfected by the issue of a certificate of conclusion of appeal.[193]
[192] Burrell v The Queen [2008] HCA 34 [20] ‑ [29] (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ).
[193] Criminal Procedure Rules 2005 (WA) r 74.
The appellant's written submissions filed pursuant to my directions of 2 August 2018 were in support of two applications in the appeal. The first was that a further order should be made setting aside the costs order made by the magistrate. As order 7 of my orders of 22 June 2018 is such an order I do not consider that a further order is required.
The second was that as I had set aside the convictions and sentences for the unsolicited consumer agreement charges and refused to remit them to the Magistrates Court those charges were 'in limbo, on foot and undetermined and will not be determined by retrial'. The appellant submitted that:
1.There should be a final resolution of the unsolicited consumer agreement charges either by the entry of acquittals or their dismissal.[194]
[194] Appellant's submissions 16 August 2018 [22].
2.If, as I found in relation to the unsolicited consumer agreement charges, a court of summary jurisdiction did not make findings which justified or allowed a conviction then the accused must be acquitted by the court of summary jurisdiction of the charge. The appellant did not provide authority for that proposition.[195]
[195] Appellant's submissions 16 August 2018 [23].
3.Pursuant to the Criminal Appeals Act 2004 (WA) (CAA) s 14(1)(d) I should substitute the decision which should have been made by the trial magistrate, being verdicts of acquittal. Alternatively I should dismiss the charges.
The respondent objected to me making either of the orders sought in relation to the second issue. He submitted that:
1.The power in the CAA s 14(1)(d) to 'substitute a decision that should have been made by the court of summary jurisdiction' was not enlivened because I had not found that the appellant ought to have been acquitted. Rather I found only that the magistrate had made inconsistent findings about important issues and had failed to provide adequate reasons for rejecting the defence evidence.
2.Before I could enter acquittals I would need to conduct a review of the evidence at trial to determine whether it was capable of satisfying a magistrate beyond reasonable doubt that the appellant was guilty. As I had not undertaken that process and it would be inappropriate for me to do so I could not now rely on the CAA s 14(1)(d) to acquit the appellant of the unsolicited consumer agreement charges.
3.It was not appropriate to dismiss the unsolicited consumer agreement charges under the CAA s 14(1)(d) because the Magistrates Court did not have power to dismiss the charges.
In respect of point 3 above I agree with the respondent. In determining a summary charge a court of summary jurisdiction can only:
(a)convict the accused of the charge; or
(b)acquit the accused of the charge; or
(c)enter judgment on the charge under the Criminal Procedure Act 2004 (WA) (CPA) s 128(2).[196]
[196] CPA s 3.
The power in the CPA s 128(2) applies only where the court does not have jurisdiction to deal with a charge.[197] A court of summary jurisdiction must dismiss a charge for want of prosecution[198] which was not the situation with respect to the unsolicited consumer agreement charges. The magistrate could not have dismissed the unsolicited consumer agreement charges and I should not do so.
[197] CPA s 128(2).
[198] CPA s 25.
The respondent made further submissions about why the power in the CAA s 14(1)(i) should not be used to acquit the appellant of the unsolicited consumer agreement charges but I will not summarise them as I have determined that it is appropriate to order pursuant to s 14(1)(d) that the appellant be acquitted of the unsolicited consumer agreement charges.
The CAA s 14(1) states relevantly:
In deciding an appeal, the Supreme Court may do one or more of the following ‑
(a)dismiss the appeal;
(b)allow the appeal;
(c)set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision;
(d)substitute a decision that should have been made by the court of summary jurisdiction;
(e)order the case to be dealt with again by the court of summary jurisdiction, with or without orders to that court ‑
(i)as to how or by whom it is to be constituted;
(ii)as to how it must deal with the case;
…
(i)make any other order it thinks fit.
The CAA s 14(1)(d) can be applied in different ways depending on the facts of the appeal. In this appeal I was satisfied that the magistrate's reasons did not support convictions for the unsolicited consumer agreement charges. Consequently, the decision that the magistrate should have made on the basis of those findings was to acquit the appellant of them. I also determined that I was not in a position to determine the facts which should have been found and further that it would not be fair for the respondent to retry the appellant on those charges. In these circumstances the order which I ought to make is to acquit the appellant of the unsolicited consumer agreement charges.
If the respondent had not succeeded on the notice of contention it would have been appropriate for me to order the unsolicited consumer agreement charges to be dealt with again by the Magistrates Court rather than to acquit the appellant of them.
The parties should bear their own costs of these applications. My reasons for that decision are that first, neither party has been wholly successful. Secondly, to the extent that the appellant was successful, the applications should have been made and dealt with on 22 June 2018 without the need for further costs to be expended.[199]
[199] Burrell [16], [27] ‑ [29].

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE JENKINS
9 OCTOBER 2018