Australian Competition and Consumer Commission v AGL Sales Pty Ltd (No 2)

This matter concerns proceedings brought by the Australian Competition and Consumer Commission (ACCC) against AGL Sales Pty Ltd (AGL SA) and CPM Energy Pty Ltd (CPM) for contraventions of the Australian Consumer Law (ACL). The ACCC alleged that on 3 November 2011, a sales representative of CPM, acting on behalf of AGL SA, entered the private residential premises of Ms Lisa Plant, knocked on her door, and commenced negotiations for the supply of retail electricity and gas. This occurred despite the presence of a visible 'DO NOT KNOCK' sign on the door. The ACCC sought declarations of contravention, pecuniary penalties, and orders against both AGL SA and CPM for their respective roles in the contravention of the ACL.

The primary legal issue before the Court was the determination of appropriate pecuniary penalties for the contraventions committed by AGL SA and CPM. The Court had to consider various factors, including the nature, extent, and circumstances of the conduct, the amount of loss caused and profit gained, the size and financial position of the respondents, and the deliberateness of the contravening conduct. The Court also needed to ensure that the penalties imposed had a deterrent effect on the respondents and others in the door-to-door selling industry.

In reaching its decision, the Court meticulously applied the principles outlined in the High Court's decision in Markarian v R, considering all relevant factors to assess a penalty of appropriate deterrent value. The Court noted that the contraventions involved deliberate conduct by CPM's sales representative, who knowingly ignored a clear 'DO NOT KNOCK' sign and proceeded to engage in negotiations with Ms Plant. The Court also highlighted that the conduct occurred in a private residence, which underscored the seriousness of the contravention. After evaluating the agreed positions of the parties and taking into account the need to deter similar conduct in the future, the Court determined that a penalty of $35,000 for AGL SA and $25,000 for CPM was appropriate. The Court further declared that both respondents contravened the ACL by failing to leave the premises immediately upon request.

The Court's final orders included declarations that CPM's sales representative contravened the ACL by remaining on Ms Plant's premises, knocking on her door, and engaging in negotiations despite the 'DO NOT KNOCK' sign. Additionally, the Court ordered AGL SA to pay a penalty of $35,000 and CPM to pay a penalty of $25,000 for their respective roles in the contravention.