Australian Competition and Consumer Commission v Abel Rent-A-Car Pty Ltd

[2000] FCA 522

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Abel Rent-A-Car Pty Ltd
[2000] FCA 522

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ABEL RENT-A-CAR PTY LIMITED ACN 060 876 468 AND STEVEN MARK CONN
Q 34 OF 1999

DRUMMOND J
19 APRIL 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 34 OF 1999

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

ABEL RENT-A-CAR PTY LIMITED ACN 060 876 468
FIRST RESPONDENT

STEVEN MARK CONN
SECOND RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	19 APRIL 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The second respondent pay the sum of $10,000 by way of penalty for the contempt, the subject of Declaration 2(B) of the orders made on 12 April 2000.

2.The sum of $10,000 be paid within one month of this date.

3.The second respondent pay the costs of the Australian Competition and Consumer Commission of and incidental to the contempt proceedings, such costs to be taxed on an indemnity basis, ie, to the intent that Mr Conn must pay all the costs of the Commission of and incidental to the contempt proceedings, save such costs, if any, as may have been unreasonably incurred by the Commission.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 34 OF 1999

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
APPLICANT

AND:

ABEL RENT-A-CAR PTY LIMITED ACN 060 876 468
FIRST RESPONDENT

STEVEN MARK CONN
SECOND RESPONDENT

JUDGE:	DRUMMOND J
DATE:	19 APRIL 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 12 April 2000 I made declarations that Abel Rent-A-Car Pty Ltd, by 11 June 1999, had not altered its signage in the respects referred to in Declaration 1(A) and was thus in contempt of court.  I also made a declaration that by 11 June 1999 it had not altered its billboard signage at its Cairns depot in the way referred to in that declaration and was also in contempt of court.  I further found that the second respondent, Mr Conn, who was, in effect, the controller of Abel Rent-A-Car Pty Ltd, at the date of these contempts, was himself in contempt in so far as he took no adequate steps to ensure that the first respondent did not breach the relevant court orders which brought it into contempt in the two respects that I have mentioned.

2. The Australian Competition and Consumer Commission does not ask for any penalty against Abel Rent-A-Car Pty Ltd because not only has it long since been sold, but it is now in liquidation.

3. In the reasons I published on 12 April 2000, I found that, so far as concerns the first contempt of the company, in which Mr Conn is also involved, the company had changed its terms of business so as to make the order of March 1999 in respect of which I found the company to be in contempt by Declaration 1(A), for practical purposes, irrelevant.  I was not prepared to find that that change of business in fact occurred only after 18 May 1999, the date fixed for compliance with the relevant court order.  I said, in relation to this first contempt by the company in which Mr Conn was involved, this:

   “However, that the first respondent changed its terms of trade in relevant respects prior to 18 May 1999, so as to justify the variation of the order eventually sought on 10 June 1999, and obtained on 24 June 1999, is no answer to the charge of contempt by breaching Order 1(a).”

4. I then commented that the fact that the mode of carrying on business had been changed by the company prior to the time fixed for compliance with the court order, though not an answer to the contempt charge was relevant to punishment, ie, as mitigating the punishment that would otherwise have been appropriate.  Abel Rent-A-Car was sold in early June 1999 by Mr Conn to another company, Aus Fleet Services Pty Limited.

5. So far as concerns the first contempt that I found against Mr Conn, it seems to me that the appropriate order is that he should pay the costs of the Commission of the contempt proceedings.  Apart from the costs order in relation to the first contempt, I do not think that any further punishment is appropriate.

6. Moving now to the second contempt, it is said in Mr Conn’s defence that there was no wilful conduct involved on his part, it was merely a matter of poor office administration.

7. I do not accept that.  The findings I made in relation to the second contempt, in my opinion, show that Mr Conn, as the person responsible for ensuring that the relevant order of the court was complied with, really made no serious attempt to attend to the Cairns signage until an officer of the Fair Trading Department, acting as I have described in my reasons, as an agent of the Commission, drew the attention of Abel Rent-A-Car to the fact that as late as 24 May - well after the time fixed for compliance with the order - no attempts had been made to change the signage.

8. I have reviewed in my reasons of 12 April 2000 what followed.  That does not suggest that Mr Conn worried too much about having to comply with the court order.  The officer of Abel Rent-A-Car to whom he left responsibility for attending to that seems to me not to have been given any instructions by Mr Conn, even after 24 May, that were sufficient to impress upon her the importance of attending urgently to the change of the Cairns signage.

9. So far as this particular contempt against Mr Conn is concerned, I think it involves more serious conduct on his part than his involvement in the breach of the earlier order to which I have made reference.

10. The Commission refers to Mr Conn’s involvement in the activities of Aus Fleet Services Pty Limited trading as Abel Rent-A-Car, to whom the Abel Rent-A-Car business was sold by him in June of last year, as indicating a lack of remorse on Mr Conn’s part.

11. In his sworn evidence, he claimed he had really little knowledge at all about who ran Aus Fleet Services Pty Limited.  He has put evidence before the Court today claiming that he has no real involvement in Aus Fleet Services Pty Limited’s business, that his only contact with it, according to his affidavit evidence and the evidence that he gave from the witness box, is that he is, in effect, merely a consultant-employee.  The position, I am satisfied, is quite different:  he is in the position of controller of Aus Fleet Services Pty Limited and its vehicle hire business.

12. The evidence of the mode in which Aus Fleet Services Pty Limited, trading under the Abel Rent-A-Car name, apparently is continuing to operate evidences a significant lack of remorse on Mr Conn’s part.  He, in my view, seems to be of the opinion that regulatory laws that impede him pursuing his business activities are there to be circumvented wherever that may be possible.  There is no sign of any awareness on his part of the seriousness of the conduct in respect of which he has been found guilty of contempt of court.

13. I thought about a term of imprisonment, but in view of the fairly limited nature of the contempt, and the character of the conduct involved on Mr Conn’s part, it is not, in my opinion, a case in which imprisonment is warranted.  However, a fine to be imposed on Mr Conn is appropriate.

14. In view of his unacceptable evidence about having only minimal association with Aus Fleet Services Pty Limited, I am not prepared to accept his evidence that he is so asset poor that a significant penalty would be for that reason inappropriate.

15. I will order that Mr Conn pay the sum of $10,000 by way of penalty for the contempt, the subject of Declaration 2(B) of the orders that I made on 12 April 2000.

16. In relation to this contempt, he will also be ordered to pay the costs of the Commission of and incidental to the contempt proceedings, such costs to be taxed on the usual basis in contempt matters, ie, on an indemnity basis to the intent that Mr Conn must pay all the costs of the Commission of and incidental to the contempt proceedings, save such costs, if any, as may have been unreasonably incurred by the Commission.  I do not consider that this is a case in which I should apportion costs, notwithstanding the fact that Abel Rent-A-Car and Mr Conn escaped a finding of contempt in respect of the failure to remedy the website.

17. I will allow Mr Conn one month to pay the penalty of $10,000.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:             19 April 2000

Counsel for the Applicant:	Miss E Ford
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	Mr C Smiley
Solicitor for the Respondents:	Macrossans Solicitors
Date of Hearing:	19 April 2000
Date of Judgment:	19 April 2000