Australian Competition and Consumer Commission v Panthera Finance Pty Ltd
[2020] FCA 340
•12 March 2020
FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Panthera Finance Pty Ltd [2020] FCA 340
File number: NSD 1162 of 2019 Judge: JAGOT J Date of judgment: 12 March 2020 Date of publication of reasons: 13 March 2020 Catchwords: CONSUMER LAW – where respondent admitted contraventions of Australian Consumer Law – where respondent contacted consumers pursuing payment of alleged debt – where consumers were not liable for alleged debt – undue harassment – false or misleading representations – agreed pecuniary penalties – application granted
HUMAN RIGHTS – Privacy – interlocutory application – where suppression orders sought for individuals that have provided affidavit evidence – where orders seek to prevent the disclosure of confidential information – commercial sensitivity of information is an appropriate basis for making a suppression or non-publication order – application granted
Legislation: Australian Securities and Investments Commission Act 2001 (Cth)
Competition and Consumer Act 2010 (Cth) ss 155AAA, 155AAA(21), Sch 2 (Australian Consumer Law) ss 29, 29(1)(m), 50, 50(1), 224(1)(a)(ii), 224(3) item 2, 246(1), 246(2), 246(2)(b)
Federal Court of Australia Act 1976 (Cth) ss 21, 37AF, 37AF(1)(a), 37AG(1), 37AG(1)(a)
Federal Court Rules 2011 (Cth) rr 2.32(1)(b), 2.32(3)(a)
Privacy Act 1988 (Cth) s 21V
Cases cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157
Australian Competition and Consumer Commission v ACM Group Ltd (No 2) [2018] FCA 1115
Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330
Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd (No 2) [2017] FCA 205
Australian Competition and Consumer Commission v Sontax Australia (1988) Pty Ltd [2011] FCA 1202
Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243
Australian Competition & Consumer Commission v McCaskey [2000] FCA 1037; (2000) 104 FCR 8
Australian Competition & Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472
Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482
Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Motorola Solutions Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17
Date of hearing: 12 March 2020 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 60 Counsel for the Applicants: Ms N Sharp SC with Ms V Brigden Solicitor for the Applicants: Australian Government Solicitor Counsel for the Respondent: Mr M Hodge QC with Mr M Clarke Solicitor for the Respondent: Burns & Associates Solicitors ORDERS
NSD 1162 of 2019 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
First Applicant
RAMI GREISS the holder of a delegation dated 23 September 2014 from the Australian Securities and Investments Commission pursuant to section 102 of the Australian Securities and Investments Commission Act 2001 (Cth) in relation to alleged contraventions of that Act
Second ApplicantAND: PANTHERA FINANCE PTY LTD ACN 147 634 482
Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
12 MARCH 2020
IN RELATION TO CONFIDENTIALITY THE COURT NOTES THAT:
1.In these orders the following terms have the following meanings:
Confidential Consumer Information means information contained in any document lodged or filed in the Court consisting of the:
(i) name;
(ii) date of birth;
(iii) home or work addresses;
(iv) phone numbers;
(v) email addresses;
(vi) credit card details;
(vii) bank account details;
(viii) credit history details; and
(ix) employer or place of work;
of Witness A, Witness B, Witness C, Witness D, MH and DD.
IN RELATION TO CONFIDENTIALITY THE COURT ORDERS THAT:
2.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Court Act), and on the ground that this order is necessary to prevent prejudice to the proper administration of justice:
(a)the persons referred to by the pseudonyms set out in the Confidential Appendix to these orders may only be referred to in the context of or in connection with these proceedings by those pseudonyms; and
(b)the names of Witness A, Witness B, Witness C, Witness D, MH and DD be confidential for the purposes of rr 2.32(1)(b) and 2.32(3)(a) of the Federal Court Rules 2011 (Cth).
3.Pursuant to s 37AF of the Court Act, and on the ground that this order is necessary to prevent prejudice to the proper administration of justice, publication and/or disclosure of the Confidential Consumer Information is prohibited, except that:
(a)the Confidential Consumer Information may be disclosed to:
(i)the Court, including the Registrar mediator assigned to this matter;
(ii)the parties to this proceeding;
(iii)the legal representatives of the parties to this proceedings;
(iv)paralegals, litigation support personnel, computers services personnel and secretarial or administrative staff employed by or engaged by the persons in paragraphs 3(a)(i) to 3(a)(iii); and
(b)this order does not prevent the applicant (the ACCC) or an ACCC official (within the meaning of s 155AAA(21) of the Competition and Consumer Act 2010 (Cth) (the CCA)) from disclosing Confidential Consumer Information to any entity or person to whom disclosure of “protected information” within the meaning of s 155AAA(21) of the CCA would be permitted pursuant to s 155AAA of the CAA.
4.Orders 2 and 3 above operate for five years from the date of this order.
5.The parties have liberty to apply on 7 days’ notice.
IN RELATION TO THE CONTRAVENTIONS THE COURT DECLARES THAT:
6.The respondent (Panthera) used undue harassment in connection with the supply or possible supply of goods or services, or the payment for goods or services, in respect of 3 consumers, by:
(a)between 22 September 2017 and 9 October 2017 and between 29 June 2018 and 14 July 2018, repeatedly contacting Witness A in pursuit of payment of a debt and repeatedly requiring Witness A to provide proof that she was not liable for the debt;
(b)on two occasions between early January and February 2017, requiring Witness B to provide a fraud report to prove that he was not liable for the debt;
(c)between 4 August 2014 and 4 April 2018, repeatedly contacting Witness C in pursuit of payment of a debt and repeatedly requiring Witness C to provide proof that she was not liable for the debt; and
(d)continuing to pursue the debt after Witnesses A, B and C had disputed liability for the debt, in a manner contrary to provisions 13(a), (d), (e), (f) (g) and in some instances (i) of the ACCC-ASIC Debt Collection Guidelines for collectors and creditors,
in circumstances where:
(a)Panthera was aware that Witnesses A, B and C had disputed liability for the debt; and
(b)Witnesses A, B and C were not in fact liable for the debts,
and thereby contravened s 50(1) of the Australian Consumer Law (the ACL) in relation to each consumer.
7.On 4 April 2017, Panthera, in trade or commerce, in connection with the supply or possible supply of goods or services, made a false or misleading representation concerning the exclusion or effect of a right in contravention of s 29(1)(m) of the ACL, by representing to Witness B that he needed to make a payment to Panthera of $100 in order to have a default listing removed from his credit file, in circumstances where:
(a)the default listing was inaccurate; and
(b)the consumer had a right to have the default listing removed free of charge, pursuant to s 21V of the Privacy Act 1988 (Cth).
IN RELATION TO THE CONTRAVENTIONS THE COURT ORDERS THAT:
8.Within 30 days of the date of this order, Panthera pay to the Commonwealth of Australia pecuniary penalties totalling $500,000 as follows:
(a)$125,000 in respect of each contravention of s 50(1) of the ACL in relation to the 3 consumers referred to in the declaration at 6 above; and
(b)$125,000 in respect of the contravention of s 29(1)(m) of the ACL, referred to in the declaration at 7 above.
IN RELATION TO THE CONTRAVENTIONS THE COURT ORDERS BY CONSENT THAT:
9.Pursuant to s 246(2)(b) of the ACL, Panthera continue to maintain a compliance program for three years from the date of this order, which must have a specific focus on ensuring compliance with ss 29 and 50 of the ACL, and Panthera’s processes for dealing with consumers who dispute liability for a debt.
10.Panthera make a contribution to the ACCC's costs in the amount of $100,000, to be paid within 30 days of the date of this order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Confidential Appendix
REDACTED
REASONS FOR JUDGMENT
JAGOT J:
Summary
These reasons for judgment explain why I made declarations and orders as proposed by the parties concerning contraventions of ss 29(1)(m) (false or misleading representation) and 50(1) (undue harassment) of the Australian Consumer Law (the ACL) in Sch 2 to the Competition and Consumer Act 2010 (Cth) (the CCA).
The proposed declarations concern the admitted unlawful conduct of the respondent (Panthera) as follows:
(1)in the specific periods detailed below between 4 August 2014 and 14 July 2018, Panthera engaged in undue harassment of three consumers, referred to as Witnesses A, B and C, while seeking payment of debts from those consumers, in circumstances where the consumers did not in fact owe the debts; and
(2)on 4 April 2017 Panthera made a false or misleading representation concerning the existence, exclusion or effect of a right in relation to Witness B.
The proposed orders involve the imposition of pecuniary penalties on Panthera totalling $500,000 in respect of the admitted contraventions, being three contraventions of s 50(1) (undue harassment) and one contravention of s 29(1)(m) (false or misleading representation) of the ACL.
Use of pseudonyms
I was satisfied that orders should also be made under s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth) (the Court Act) suppressing the names of the witnesses who were the subjects of Panthera’s unlawful conduct.
As the applicant (the ACCC) noted in its submissions s 37AF(1)(a) of the Court Act grants the Court the power to make suppression or non-publication orders in relation to information tending to reveal the identity of or otherwise concerning any witness (or any person who is related or otherwise associated with a witness) in a proceeding before the Court.
Section 37AG(1) sets out the grounds on which the Court may make a suppression order. The ACCC sought the suppression orders on the ground that they are necessary to prevent prejudice to the proper administration of justice, pursuant to s 37AG(1)(a) of the Court Act.
In Motorola Solutions Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 at [6] (Motorola) Perram J summarised the principles applicable to the making of suppression orders as follows:
(1)the [Court Act]contains Part VAA which relates to suppression and non-publication orders;
(2)the power of the Court to make such orders is contained in s 37AF and the grounds for making them are to be found in s 37AG which includes within it that ‘the order is necessary to prevent prejudice to the proper administration of justice’: s 37AG(1)(a);
(3)such an order is not lightly to be made. It must be necessary to prevent prejudice to the proper administration of justice and not merely desirable: see Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 666 [39]; Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8] per Edelman J;
(4)the Court may make any other order necessary to give effect to the primary order: s 37AF(2) of the [Court Act].
(5)the order, once made, must remain in place no longer than is reasonably necessary to achieve its purpose: s 37AJ(2); and
(6)the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 37AE) but no balancing exercise need be carried out between the utility of the order and the interest which open justice assumes under the [Court Act]: Australian Competition and Consumer Commission v Air New Zealand (No 12) [2013] FCA 533 at [21].
The ACCC described its proposed orders (collectively, the Proposed Confidentiality Orders) in these terms:
Proposed Order 1 requires the use of pseudonyms in respect of consumers who have provided affidavits in the proceedings, and individuals related to those consumers;
Proposed Order 2 seeks to prevent the disclosure of Confidential Consumer Information;
Proposed Order 3 provides that Orders 1 and 2 will be operative for a period of five years only.
(Original emphasis.)
The ACCC noted that:
The matters set out in the Concise Statement in respect of Witnesses A, B and C traverse matters relating to financial standing, debt, identity verification and potential identity fraud or theft. The ACCC has filed affidavits from the witnesses, which have not been read in the proceeding (and as a result of agreement being reached between the parties as to relevant facts, are not expected to be read in the proceeding.) The affidavits filed on behalf of each witness contain personal and sensitive information, such as personal email addresses and phone numbers, residential addresses, credit card details and credit history details.
As to the Court’s power to make the Proposed Confidentiality Orders, the ACCC submitted that:
(1)the Proposed Confidentiality Orders relate to people who are:
(a)witnesses in these proceedings (being Witnesses A, B, C and D); or
(b)related to or otherwise associated with Witnesses in these proceedings (being, MH and DD); and
(2)as a result, the Proposed Orders 1 and 2, fall within the scope of s 37AF(1)(a) of the Court Act as they relate to the disclosure of information tending to reveal the identity of or otherwise concerning any witness (or any person who is related or otherwise associated with a witness) in a proceeding before the Court.
As to the necessity to make the Proposed Confidentiality Orders, the ACCC submitted that:
(1)Proposed Orders 1 and 2 be made on the ground that they are necessary to prevent prejudice to the proper administration of justice, pursuant to s 37AG(1)(a) of the Court Act; and
(2)if not made:
(a)there is significant risk that the Witnesses will suffer harm as a result of their willingness to provide evidence in court proceedings; and
(b)there is a significant risk that if the ACCC is not successful in obtaining orders to the effect of Proposed Orders 1 and 2, consumers will be less willing to provide evidence for the ACCC in consumer protection matters which would severely hamper the ACCC’s ability to discharge its function in enforcing consumer protection provisions of the ACL.
As to the Court’s discretion to make the Proposed Confidentiality Orders, the ACCC submitted:
(1)the ACCC relies on the willingness of individuals, such as Witnesses A, B, C and D, to give evidence in proceedings of this nature to discharge its function in enforcing the ACL;
(2)the ACCC is concerned that there may be a risk that consumers will be unwilling to assist the ACCC in future matters by giving evidence in proceedings, if by doing so, their identities are publicly disclosed and their personal details (including contact information and credit card details) become publicly available;
(3)refusal by consumers to provide evidence, would severely hamper the ACCC’s ability to discharge its function in enforcing the ACL, resulting in prejudice to the administration of justice;
(4)publication of the Witnesses’ names and contact information may expose them to unwanted media contact and attention, which is likely to result in them suffering stress and possible harassment as a result of their willingness to provide evidence in court proceedings;
(5)the Confidential Consumer Information contemplated by Proposed Order 2 consists of the type of unique information that enables a specific individual to be identified or contacted. Disclosure of this kind of information puts the individual at risk of having their personal information misused;
(6)the Court often redacts information of the kind contemplated by Proposed Order 2 in its published reasons for judgment, suggesting an acknowledgment that disclosure of these types of information is undesirable; and
(7)in Motorola at [8], Perram J noted that this Court, in a number of cases, has found that commercial sensitivity of information is an appropriate basis for making a suppression or non-publication order.
The ACCC submitted that the Proposed Confidentiality Orders should be made in the exercise of the Court’s discretion as it has demonstrated that Proposed Orders 1 and 2 are necessary, and not merely convenient, to prevent prejudice to the proper administration of justice. Further, the five year currency period contemplated by Proposed Order 3, is no longer than is reasonably necessary to prevent prejudice. The ACCC said this period is sufficient to allow media interest and publicity in this matter to die down and allows a period for the currency of some of the Confidential Consumer Information to lapse, such as credit card and drivers licence details.
According to the ACCC the Proposed Confidentiality Orders do not unduly affect the public interest in open justice. This is because:
(1)the use of pseudonyms does not overly impact the public’s right to engage with these proceedings; and
(2)the Confidential Consumer Information is contained in affidavit materials that, because they have not been formally read, are not generally accessible to the public in any event.
I accepted the ACCC’s submissions to the above effect. The Proposed Confidentiality Orders were made as they are necessary to prevent prejudice to the proper administration of justice.
Joint submissions, agreed facts and admissions
The parties jointly filed a document which contains agreed submissions, facts and admissions by Panthera (the Joint Document). A copy of that document is attached at Annexure A to these reasons for judgment. Words and phrased defined in the Joint Document take the same meaning in these reasons for judgment. The following facts and submissions are taken from the Joint Document.
Overview of the key facts
Statutory provisions
Section 50(1) of the ACL provides that a person must not use physical force, or undue harassment or coercion, in connection with, relevantly, the payment for goods or services.
Section 29(1)(m) of the ACL provides that a person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.
I accept the submissions of the parties to the effect that the ACL applies rather than the Australian Securities and Investments Commission Act 2001 (Cth), the latter of which is concerned with the provision of financial services. The same conclusion was reached in relation to debt collection activities in relation to goods and services not themselves being financial services in Australian Competition and Consumer Commission v ACM Group Ltd (No 2) [2018] FCA 1115 at [217]-[225].
Witness A
Panthera has admitted that between 22 September 2017 and 9 October 2017 and between 29 June 2018 and 14 July 2018, Panthera engaged in undue harassment of Witness A, in contravention of s 50(1) of the ACL, by:
(1)repeatedly contacting Witness A as set out in [13] of the Joint Document;
(2)repeatedly requiring Witness A to provide proof that she was not liable for the Origin Debt, as set out in [11], [20] and [21] of the Joint Document; and
(3)continuing to pursue the Origin Debt after Witness A had disputed liability as set out in [11] of the Joint Document, in a manner contrary to provisions 13(a), (d), (e), (f), (g) and in some instances (i) of the ACCC-ASIC Debt Collection Guidelines for collectors and creditors (the Guidelines),
in circumstances where:
(1)Panthera was aware that Witness A had disputed liability for the Origin Debt; and
(2)Witness A was not in fact liable for the Origin Debt.
Witness B
Panthera has admitted that between early January 2017 and 4 April 2017, Panthera engaged in undue harassment of Witness B, in contravention of s 50(1) of the ACL, by:
(1)requiring Witness B to provide a fraud report as proof that he was not liable for the Telstra Debt, as set out in [29] of the Joint Document; and
(2)continuing to pursue the Telstra Debt after Witness B had disputed liability as set out in [29] of the Joint Document, in a manner contrary to provisions 13(a), (d), (e), (f), (g) and in some instances (i) of the Guidelines,
in circumstances where:
(1)Panthera was aware that Witness B disputed liability for the Telstra Debt, as set out in [27] of the Joint Document; and
(2)Witness B was not in fact liable for the Telstra Debt.
Panthera has also admitted that on 4 April 2017 it made a false or misleading representation concerning the existence, exclusion or effect of a right, in contravention of s 29(1)(m) of the ACL, as set out in paragraph 34 of the Joint Document, by representing that Witness B was required to pay at least $100 to Panthera to have a default listing removed from his credit history in circumstances where:
(1)the default listing was inaccurate; and
(2)Witness B had a right to have the default listing removed free of charge, pursuant to s 21V of the Privacy Act 1988 (Cth).
Witness C
Panthera has admitted that between 4 August 2014 and 4 April 2018, it engaged in undue harassment of Witness C, in contravention of s 50(1) of the ACL, by:
(1)repeatedly contacting Witness C as set out in [44] of the Joint Document, in pursuit of payment of the AGL Debt;
(2)repeatedly requiring Witness C to provide proof that she was not liable for the AGL Debt, as set out in [42], [47] and [52] of the Joint Document;
(3)continuing to pursue the debt after Witness C had disputed liability for the AGL Debt as set out in [40] of the Joint Document, in a manner contrary to provisions 13(a), (d), (e), (f), (g) and in some instances (i) of the Guidelines;
in circumstances where:
(1)Panthera was aware that Witness C had disputed liability for the debt; and
(2)Witness C was not in fact liable for the debt.
It may readily be concluded that Panthera’s repeated and intrusive conduct as disclosed in the Joint Document constituted the undue harassment of each of Witness A, B and C. In circumstances where each of the Witnesses denied being the debtor and any liability to pay the debt Panthera repeatedly and over relatively significant periods effectively insisted that the Witnesses disprove their liability. In the circumstances I accept that Panthera’s conduct was such as to “intimidate or demoralise, tire out or exhaust a debtor, rather than merely to convey the demand for recovery”: Australian Competition & Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472 at [60] citing Australian Competition & Consumer Commission v McCaskey [2000] FCA 1037; (2000) 104 FCR 8 at [48].
Agreed orders
In Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [46] (Commonwealth v Director) the High Court said:
…there is an important public policy involved in promoting predictability of outcome in civil penalty proceedings and that the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers. As was recognised in Allied Mills and authoritatively determined in NW Frozen Foods, such predictability of outcome encourages corporations to acknowledge contraventions, which, in turn, assists in avoiding lengthy and complex litigation and thus tends to free the courts to deal with other matters and to free investigating officers to turn to other areas of investigation that await their attention.
At [58] the High Court said:
Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty. To do so is no different in principle or practice from approving an infant's compromise, a custody or property compromise, a group proceeding settlement or a scheme of arrangement.
At [60] and [61] the High Court noted the relevance of the fact that submissions were being advanced by a specialist regulator able to offer “informed submissions as to the effects of contravention on the industry and the level of penalty necessary to achieve compliance”, albeit that such submissions will be considered on the merits in the ordinary way.
The Joint Document records that these principles are not confined to agreed submissions on pecuniary penalties but apply equally to agreement on other forms of relief.
The proposed declarations
The parties submitted that the facts necessary to found the proposed declarations had been admitted and it is appropriate for the declarations to be made for these reasons:
(1)the Court has a wide discretionary power to make declarations under s 21 of the Court Act;
(2)the preconditions for declaratory relief, as explained by the High Court (Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, [437]-[438] and Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, [581]-[582]), are made out, being:
(a)There is a real and not a hypothetical question:
(i)There is a direct and important question as to whether Panthera's conduct towards each of Witness A, B and C contravened the provisions of the ACL;
(b)The applicant has a real interest in raising it:
(i)The ACCC has an obvious interest, as the statutory regulator discharging its functions in the public interest, in bringing the proceedings; and
(c)There is a proper contradictor and real consequences:
(i)Panthera, as the entity declared to have contravened the law, has an interest in opposing the relief. This remains so notwithstanding its admissions and agreement.
Further:
…the declarations are desirable and appropriate because they will record the Court’s disapproval of the conduct, vindicate the concerns of relevant consumers, assist the ACCC in carrying out the duties conferred on it by the CCA, assist in clarifying the law and make clear to other would-be contravenors that such conduct is unlawful.
Compliance program
It was submitted that it is appropriate to require Panthera to continue to maintain a compliance program as sought by consent in the Proposed Orders. Section 246(2)(b) of the ACL empowers the Court to make such orders and the pre-conditions enlivening that power are met in the present case as :
(1)the Proposed Orders are sought by the regulator in relation to a person who has contravened provisions of Chapter 3 of the ACL: s 246(1); and
(2)the Proposed Orders have the purpose of ensuring that Panthera does not engage in the same conduct, or similar or related conduct, for a period not exceeding 3 years: s 246(2).
Having regard to the principles expressed in Australian Competition and Consumer Commission v Sontax Australia (1988) Pty Ltd [2011] FCA 1202 at [36], the proposed compliance program:
(1)has a clear nexus to the contravening conduct. The order requires Panthera to continue to maintain a compliance program, with particular emphasis on:
(a)ensuring compliance with ss 29 and 50 of the ACL; and
(b)providing guidance on the proper process for dealing with consumers who dispute liability for a debt;
(2)will ensure a company-wide awareness of responsibilities and obligations in relation to the contravening conduct or similar or related conduct by requiring Panthera to continue to maintain compliance measures designed to minimise the risk of similar conduct occurring in the future; and
(3)is in the public interest as Panthera should continue to implement such a system having regard to the wrongdoing in the present case and, in particular, the fact that the conduct in respect of Witness A and C occurred over a lengthy period of time and involved multiple instances of contact.
Pecuniary penalties
Objects
Pursuant to s 224(1)(a)(ii) of the ACL, if the Court is satisfied that a person has contravened a provision of Part 3-1 of the ACL (which includes ss 29 and 50), the Court may order the person to pay such pecuniary penalty, in respect of each act or omission by the person to which it applies, as the Court determines to be appropriate.
The appropriateness of the penalties proposed are explained by reference to the central object of imposing penalties, namely the need to secure deterrence, and the assessment of an appropriate penalty for each contravention.
Civil penalties are “primarily if not wholly protective in promoting the public interest in compliance”: Commonwealth v Director [55], and see also [59] and [110].
General deterrence
The High Court has said that the principal object of deterrence is achieved if the pecuniary penalty has the necessary “sting or burden” to secure “the specific and general deterrent effects that are the raison d’etre of its imposition”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 at [116].
The parties jointly submitted that there is a need for general deterrence in the present case as:
1.…debt collection and recovery is a growing industry in Australia. It involves the purchase of ‘bad’ debts by recovery agencies, such as Panthera, at heavily discounted prices. Recovery agencies then seek to recover some or all of the debt, for the purpose of generating a profit on the original purchase price of the debt. Debt recovery often involves frequent and repeated contact with members of the community, many of whom may be suffering financial hardship or disadvantage...;
2.…the conditions in which the relevant conduct occurred are likely to continue to exist. That is, it is likely that some consumers who are contacted by a debt recovery agency will deny liability for a debt, in circumstances where they are in fact not liable for the debt. As a result, there remains the potential for business gains and consumer harms from conduct of a similar kind…;
3.…debt recovery agencies should be left in no doubt that a strong compliance program, sufficient to pick up and address conduct of the present kind, is not optional. If the burden of a penalty is seen to be less than the cost or effort of such a program, businesses may be tempted to prefer to absorb the risk of being caught over careful compliance with the ACL…;
4.…the protections against Unfair Practices contained in Part 3-1 of the ACL are an important part of Australia's consumer protection framework…; and
5.…the penalties imposed in the present case can be expected to be of interest to affected consumers, the public more broadly and to the debt recovery sector generally.
Specific deterrence
The parties submitted that the penalties must be sufficiently high to deter Panthera from engaging in like conduct in the future. In particular:
(1)Panthera is the second largest debt recovery agency operating in Australia;
(2)Panthera’s financial information shows it is a large corporation (in terms of revenue) and is very profitable; and
(3)the fact that Panthera has made admissions and agreed to the relief set out in these submissions should properly be reflected in any penalty, but does not overcome the need for specific deterrence as a significant factor: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330, [79].
Multiple contraventions
According to the Joint Document the parties seek the imposition of penalties in respect of four separate contraventions on the basis that each of the contraventions is sufficiently distinct to be distinguishable rather than occurring as part of the same conduct: Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 at [217]-[224] (Yazaki); Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd (No 2) [2017] FCA 205 at [13]-[17]. As the Joint Document put it:
The conduct giving rise to the s 50(1) (undue harassment) contraventions in respect of each of Witness A, B and C arises over different time periods, in respect of different consumers and is engaged in by different Panthera representatives. The false or misleading representation in relation to Witness B is factually separate to the conduct giving rise to the undue harassment contravention in respect of Witness B.
Further, according to the Joint Document:
(1)the contraventions are not so inextricably interrelated that they should be viewed as one multi-faceted “course of conduct”: Yazaki at [234];
(2)the totality principle requires the Court to make a “final check” of the penalties to be imposed, considered as a whole, to ensure the cumulative total of the penalties is “just and appropriate” and not too low or too high; and
the penalty sought in respect of each contravention adequately reflects the nature and circumstances of the conduct giving rise to each contravention. As a result, the parties agree that no totality reduction is required.
Determining the pecuniary penalties
Maximum penalty
Careful attention to the maximum penalty is required: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
Before 1 September 2018 the maximum penalty for contraventions by a company of a provision in Part 3-1 of the ACL was $1.1 million: item 2 of s 224(3). This maximum applies to each of the four contraventions.
Relevant factors
Section 224(2) of the ACL provides that in determining the appropriate pecuniary penalty, the Court must have regard to all relevant matters including:
(a)the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and
(b) the circumstances in which the act or omission took place; and
(c)whether the person has previously been found by a court in proceedings under Chapter 4 or this Part to have engaged in any similar conduct.
The parties submitted that the following penalties would have the appropriate deterrent effect:
Witness Contravention Penalty Witness A 1 x s 50(1) $125,000 Witness B 1 x s 50(1) $125,000 1 x s 29(1)(m) $125,000 Witness C 1 x s 50(1) $125,000 Total $500,000
The parties referred to the following considerations to support these proposed penalties as having a sufficient deterrent effect:
(1)Panthera is a large and profitable company. It is the second largest debt recovery agency operating in Australia. As a result, a significant penalty is necessary in order to achieve specific deterrence;
(2)the proposed penalties are necessary and sufficient:
(a)to remind other debt collection companies of the importance of ensuring that they do not unduly harass or mislead customers in the course of their collection activities; and
(b)to encourage them to comply with the Guidelines when dealing with consumers;
(3)the penalties reflect that the conduct arose in respect of the three Witnesses, at different times during a period of approximately four years, and resulted in stress and inconvenience to the Witnesses; and
(4)the penalties make proper allowance for the following considerations:
(a)ACCC does not allege that Panthera’s conduct was systemic;
(b)Panthera received a total of $100 from the Witnesses as a result of the conduct; and
(c)Panthera has made admissions and cooperated with the ACCC.
The nature, extent and duration of the conduct
Panthera’s conduct caused inconvenience and stress to all three consumers over weeks (Witness A), months (Witness B) and years (Witness C), and created a risk that they would pay money that they did not owe to Panthera. The conduct was confined to three customers and is not alleged to be systemic. In this regard, it is relevant that Panthera made over 19 million contacts in the financial year to 30 June 2019 and the contraventions relate to three customers only and arose from failures to comply with Panthera’s own internal governance systems.
The relevant circumstances of the conduct
Panthera’s conduct was deliberately engaged in, but arose from a breakdown in Panthera’s usual systems. Further:
…there is no evidence to suggest that senior management was involved in or had knowledge of the conduct. Rather, the conduct appears to have arisen as the result of the actions of several relatively low level employees who failed to follow Panthera’s policies and procedures.
The loss or damage caused by the conduct
Panthera’s conduct caused Witness B to pay $100 when he was not required to do so. Panthera’s conduct did not cause Witnesses A and C any direct financial loss. Panthera’s conduct did cause harm to each of Witness A, B and C. Panthera’s conduct caused inconvenience and stress to each Witness. Specifically:
Witness [sic] A and B were put to the inconvenience of attending a police station to obtain a fraud report. Witness [sic] A and C were required to provide detailed personal information to Panthera over a significant period of time, in circumstances where they had repeatedly denied liability for the debt. Panthera's conduct resulted in Witness B suffering delay in obtaining a car loan and Witness C not being able to obtain a mortgage or mobile phone.
The size of the contravenor and its financial position
According to the Joint Document:
(1)Panthera is a private company limited by shares that is incorporated in Australia;
(2)Panthera was established in 2010 and is the second largest debt recovery agency operating in Australia;
(3)Panthera employs the equivalent of 400 full time employees;
(4)in the financial year to 30 June 2019 Panthera had 855,865 distinct customers;
(5)Panthera made over 19 million total contacts in the year to 30 June 2019 with an average daily contact count of 52,057; and
(6)Panthera reported net profits of more than:
(a)$23 million in 2015-16;
(b)$22 million in 2016-17;
(c)$19 million in 2017-18; and
(d)$32 million in 2018-19.
Prior similar conduct and culture
As the Joint Document put it:
(1)Panthera has not previously been found to have contravened the ACL;
(2)Panthera takes compliance with the ACL seriously, and has policies and procedures in place for its business which are covered by an ISO quality management systems standard accreditation (9001:2015); and
(3)the contravening conduct occurred inconsistently with those internal policies and procedures.
Further as the Joint Document discloses at [116] as a result of this matter Panthera has increased its compliance reviews, including the level of monitoring of collectors’ calls and records, to ensure that levels of compliance and quality are above industry standards and has recently employed an experienced General Manager of Risk and Compliance to oversee and improve its compliance systems.
Co-operation
According to the Joint Document:
(1)Panthera has co-operated with the ACCC by making substantive admissions, agreeing to the making of appropriate orders (including as to a proposed penalty), and joined in the making of the Joint Document; and
(2)Panthera also appropriately engaged with the ACCC during the ACCC's investigation and agreed to participate in mediation at an early stage in these proceedings.
The parties submitted that a meaningful discount for co-operation is appropriate and the proposed penalties factor in such a discount.
Other decisions:
The Joint Document stated:
…although similar contraventions should incur similar penalties, the differing circumstances of individual cases mean that a penalty in one case cannot dictate the penalty in a later case; as a result, comparisons with previous penalties will rarely be useful…
While the parties identified some cases as being of possible assistance at [122]-[124] of the Joint Document the parties also acknowledged that the facts and circumstances of the present case were not directly comparable to those cases. At best the cases do not undermine the conclusion I have reached that the agreed pecuniary penalties are within the range of appropriate penalties for these contraventions.
Costs
Panthera has agreed to contribute $100,000 towards the ACCC's costs of the proceeding.
Conclusions
Having considered the terms of the Joint Document, important aspects of which are summarised above, I consider that it is appropriate to make the declarations and orders and to impose the pecuniary penalties sought by the parties. The Joint Document discloses the careful consideration which has been given by the parties, one of which is the ACCC, a specialist regulator, to the appropriate declarations, orders and pecuniary penalties. I am satisfied that it is in the interests of justice to make the declarations and orders and to impose the pecuniary penalties as sought by the parties.
In particular, I am satisfied that the proposed pecuniary penalties provide the necessary “sting” in terms of both specific deterrence of Panthera in terms of any future contravening conduct and general deterrence of those engaged in similar debt collection activities as Panthera. The industry is one in which the risk of non-compliance is real if systematic endeavours are not taken to ensure and implement a culture of compliance with the ACL. The risks of harm to the community from debt collection activities which do not comply with the requirements of the ACL and the Guidelines is real and has the specific potential to impact on members of society who may be vulnerable to exploitation. It is essential to impose a penalty on Panthera of sufficient size to ensure that those in this industry know that they cannot treat the risk of non-compliance as a mere cost of doing business. The penalties to which contravenors will be exposed will be substantial having regard to the maximum penalties which can be imposed and the importance of achieving general deterrence objectives in this industry given its size and the risks of non-compliance inherent in businesses of this kind.
I am satisfied that the agreement which has been reached between the parties reflects an outcome which has been carefully considered and gives due weight to the primary goal of promoting the public interest in compliance with the ACL in this industry.
The declarations and orders sought will be made accordingly.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 13 March 2020
ANNEXURE A
JOINT SUBMISSIONS AND STATEMENT OF AGREED FACTS
PARTI INTRODUCTION
1.This document comprises submissions made jointly by the parties, agreed facts pursuant to section 191(3)(a) of the Evidence Act 1995 (Cth), and admissions by the respondent (Panthera).
2.By the Originating Application and Concise Statement dated 23 July 2019, the applicants (the Australian Competition and Consumer Commission (ACCC) and Rami Greiss) alleged that Panthera engaged in conduct that contravened ss 21(1)(a) (unconscionable conduct), 29(1)(m) (false or misleading representation), 50(1) (undue harassment) and 50(1) (coercion) of the Australian Consumer Law (ACL). The applicants alternately alleged contraventions of the corresponding provisions of the Australian Securities and Investments Commissions Act 2001 (Cth) (ASIC Act).
3.Panthera admits that it has contravened ss 29(1)(m) (false or misleading representation) and 50(1) (undue harassment) of the ACL, as set out below. Panthera denies and the applicants do not press the balance of the allegations.
4.Facts agreed between the parties, and the matters admitted by Panthera, are set out in these submissions. The Court may rely upon Panthera’s admissions, and the facts agreed pursuant to 191(3)(a) of the Evidence Act, to pronounce judgment and make orders.[1]
[1]Federal Court Rules r 22.07. See also: ACCC v Jurlique International Pty Ltd (2007) ATPR ¶42-146 at 46,087.
5.In summary, Panthera admits that:
5.1.In the specific periods detailed below between 4 August 2014 and 14 July 2018, it engaged in undue harassment of three consumers, referred to as Witnesses A, B and C, while seeking payment of debts from those consumers, in circumstances where the consumers did not in fact owe the debts; and
5.2.On 4 April 2017 it made a false or misleading representation concerning the existence, exclusion or effect of a right in relation to Witness B.
6.On the basis of the agreed facts and admissions set out in these submissions, the parties jointly seek the declarations and orders set out in the accompanying Proposed Orders. The Proposed Orders include orders seeking the imposition of pecuniary penalties totalling $500,000, in respect of the admitted contraventions, being three contraventions of s 50(1) (undue harassment) and one contravention of s 29(1)(m) (false or misleading representation) of the ACL.
7.The parties recognise that the grant of such relief remains at the discretion of the Court. These submissions explain why the parties contend that relief to be appropriate.
PARTII AGREED FACTS AND ADMISSIONS
A. Agreed Facts
(a) Witness A
8.In about August 2017, Panthera acquired a debt from Origin Energy Electricity Ltd in the amount of $378.50 for the supply of electricity to an address in New South Wales (Origin Debt).
9.Panthera incorrectly identified Witness A as the person who owed the Origin Debt by having a ‘skip trace’ performed. Witness A had a similar name to the person who owed the debt but had never lived at the addresses Panthera had on file. Panthera subsequently pursued the debt from Witness A. Panthera believed that Witness A owed the debt when it began pursuing the debt from Witness A. While Witness A disputed liability for the debt, throughout its contact with Witness A Panthera mistakenly continued to assume Witness A owed the debt.
10.Witness A was not liable for the Origin Debt, had never held an account with Origin and had never lived in New South Wales.
11.On 22 September 2017, a telephone conversation took place between a Panthera representative and Witness A. In that conversation, Witness A disputed liability for the debt, stated that she had never lived in New South Wales and had never held an account with Origin. The Panthera representative told Witness A that she needed to provide a police report to Panthera.
12.Panthera was aware from 22 September 2017, that Witness A had disputed liability for the Origin Debt.
13.Between 22 September 2017 and 14 July 2018, Panthera contacted, or attempted to contact, Witness A on the following occasions, in relation to the debt:
13.1.email from [email protected] to Witness A on 22 September 2017 at 2:19pm;
13.2.two telephone calls on 27 September 2017 at unknown times, which Witness A did not answer, but in response to which she returned the telephone call and spoke with a Panthera representative later that day at 7:34pm;
13.3.a telephone call on 28 September 2017 at an unknown time, which Witness A did not answer;
13.4.two telephone calls on 4 October 2017 at unknown times, which Witness A did not answer;
13.5.a telephone call on 7 October 2017, which Witness A did not answer;
13.6.two telephone calls on 9 October 2017 at unknown times, which Witness A did not answer, but in response to which she returned the telephone call and spoke with a Panthera representative later that day at 6:29pm;
13.7.email from [email protected] to Witness A on 29 June 2018 at 10:47am;
13.8.email from [email protected] to Witness A on 10 July 2018 at 9:03am;
13.9.email from ‘Resolutions’ to Witness A on 14 July 2018 at 10:43am.
14.On or around 23 September 2017, Witness A attended a police station for the purposes of filing a police report, as she had been advised to do during the phone call with Panthera on 22 September 2017. The officer at the police station informed Witness A that she was not able to file a police report as this was not a police matter and that she needed to lodge a report with the Australian Cybercrime Online Reporting Network (ACORN).
15.On 24 September 2017, Witness A lodged an online report with ACORN.
16.On 24 September 2017, Witness A sent an email to Panthera advising that she had attempted to report a case of identity theft to the police, had submitted a complaint to ACORN and provided Panthera with the reference number of her ACORN complaint.
17.During the telephone call on 27 September 2017, Witness A informed the Panthera representative that she had never lived in New South Wales, that she had attempted to file a police report and had provided an ACORN reference number to Panthera by email. Witness A also informed the Panthera Representative during the call that she had never received Centrelink payments in her life. This was a reference to the fact that the bills relating to the Origin Debt that Panthera provided to Witness A, recorded Centrelink deductions being made.
18.On 9 October 2017, a Panthera representative telephoned Witness A on two occasions but Witness A did not answer. Later the same day, Witness A returned the call to Panthera. During the telephone call on 9 October 2017, the Panthera representative asked Witness A whether she had sent in her police report. Witness A said that she had, and referred the representative to her email to Panthera providing the ACORN reference number. Panthera then marked Witness A’s file for management review which caused collection activity to cease.
19.On 13 June 2018, Witness A sent an email to Panthera stating that a Detective Senior Constable of police (whose phone number she provided) had advised that the person liable for the Origin Debt had the same name as Witness A, but that Panthera had been pursuing the wrong person, that the debtor still resided at the New South Wales address to which the electricity was supplied, and provided the debtor’s driver licence number and date of birth.
20.On 29 June 2018, a Panthera representative asked Witness A to supply an electricity bill for the period between 17 January 2013 and 8 October 2014, or if unavailable, a gas bill, bank statement or tenancy agreement during that period. This contact occurred in error. On the same day, Witness A sent an email in reply querying the need for additional information.
21.On 10 and 14 July 2018, a Panthera representative sent emails to Witness A which stated that Panthera still required documentation to confirm Witness A’s residential address during the service period, and that if Panthera did not receive the information collection activity may proceed.
22.On 16 July 2018, Witness A sent Panthera two personal notices of assessment from the Australian Taxation Office and a private health insurance statement because she did not have the information they requested.
(b) Witness B
23.In about December 2016, Panthera acquired a debt from Telstra Corporation Limited (Telstra) in the amount of $657.10 for the supply of mobile broadband internet services (Telstra Debt).
24.Information supplied to Panthera from Telstra identified Witness B as the person who owed the Telstra Debt. Panthera subsequently pursued the debt from Witness B. Panthera believed that Witness B owed the debt when it began pursuing the debt from Witness B. While Witness B disputed liability for the debt, throughout its contact with Witness B Panthera mistakenly continued to assume Witness B owed the debt.
25.Witness B was not liable for the Telstra Debt as he was not the holder of the relevant Telstra account.
26.In or around late December 2016, Witness B received a letter Panthera sent on 21 December 2016 containing a notice of assignment of the Telstra Debt, which stated that Witness B needed to pay the Telstra Debt in full to Panthera.
27.Witness B and/or his financial advisor informed Panthera representatives that Witness B was not liable for the Telstra Debt, and that Witness B believed the Telstra account was created fraudulently on at least the following occasions:
27.1.in or about early January 2017,
27.2.on 20 January 2017;
27.3.31 January 2017; and
27.4.on 4 April 2017.
28.From at least early January 2017, Panthera was aware that Witness B disputed liability for the Telstra Debt.
29.On 20 January and 31 January 2017, Panthera representatives told Witness B that he needed to file a “fraud report” in order to establish that he was not liable for the Telstra Debt.
30.On or about 6 February 2017, Witness B made a fraud report with police in relation to the Telstra Debt.
31.On 17 February 2017, a police officer informed Panthera that she was “looking into fraud” in relation to the account giving rise to the Telstra Debt.
32.On or around 17 February 2017, a Panthera manager made the commercial determination that Panthera would not recover the Telstra Debt from Witness B and changed the file status to “unrecoverable”.
33.In about late March 2017, Witness B became aware that a default had been listed on his credit file with respect to the Telstra Debt. That default listing had been placed by Telstra on 17 or 18 November 2016.
34.On 4 April 2017, a Panthera representative spoke to Witness B’s representative and stated that Panthera was aware of Witness B’s dispute and was investigating it, offered to negotiate a payment in order to secure the removal of the default listing and represented that Witness B would need to make a payment of at least $100 to Panthera in order for the default listing to be removed.
(c) Witness C
35.In about May 2014, Panthera acquired a debt from AGL APG Holdings Pty Limited (AGL) in the amount of $2,413.34 for the supply of energy services (AGL Debt). The AGL Debt related to energy services provided to an address in Maribyrnong, Victoria (Maribyrnong Address), between 15 June 2012 and 30 April 2013 (Service Period).
36.Information supplied to Panthera from AGL identified Witness C as the person who owed the AGL Debt. Panthera subsequently pursued this debt from Witness C. Panthera believed that Witness C owed the debt when it began pursuing the debt from Witness C. While Witness C disputed liability for the debt, throughout its contact with Witness C Panthera mistakenly continued to assume Witness C owed the debt.
37.Witness C had previously rented a house at the Maribyrnong Address, between 19 June 2010 and 18 June 2012. Witness C’s lease for the Maribyrnong Address formally ended on 18 June 2012. Witness C moved out of the Maribyrnong Address two to three weeks earlier.
38.In about July 2014, Witness C received a letter from Panthera demanding payment for the AGL Debt.
39.Witness C was not liable for the AGL Debt. Witness C’s lease for the Maribyrnong Address formally ended three days into the Service Period.
40.Between July 2014 and October 2014 Witness C repeatedly informed Panthera representatives that the AGL account giving rise to the AGL Debt was not hers and/or that she did not live at the Address during the Service Period, on the following occasions:
40.1.21 July 2014;
40.2.twice on 23 July 2014;
40.3.twice on 28 July 2014;
40.4.twice on 4 August 2014;
40.5.11 August 2014;
40.6.15 August 2014;
40.7.20 August 2014,
40.8.11 September 2014; and
40.9.21 October 2014.
41.From at least 21 July 2014, Panthera was aware that Witness C disputed liability for the AGL Debt.
42.On 21 July 2014, a Panthera representative spoke to Witness C over the telephone and stated that Witness C would need to provide proof that she was not liable for the AGL Debt.
43.On 23 July 2014, Witness C provided a letter from her former real estate agent to Panthera stating that Witness C’s official vacate date for the Maribyrnong Address was 18 June 2012, being three days into the Service Period for the AGL Debt. As set out at paragraph 37 above, Witness C had actually vacated the Maribyrnong Address two to three weeks earlier but this was not something she told Panthera specifically. On 29 July 2014 Witness C also provided an email from AGL stating that Witness C was not responsible for an electricity account but the email provided a different account number.
44.Between 4 August 2014 and 4 April 2018, Panthera contacted or attempted to contact Witness C a total of 47 times in pursuit of payment of the AGL Debt. This contact consisted of four letters, 11 phone calls, 21 voicemail messages, two email messages and nine sms messages.
45.On 14 December 2015 Panthera listed a default on Witness C’s credit file after sending the required notices. Witness C first became aware of the default listing on her credit file in mid-2016 when she and her husband applied for finance to purchase a house.
46.On 25 October 2017, Witness C’s husband telephoned Panthera and again disputed that Witness C was liable for the AGL Debt. During this call Witness C’s husband identified that:
46.1.the AGL bills provided by Panthera in relation to the AGL Debt, were addressed to a ‘Mr’ with the same name as Witness C, but that Witness C is his wife, and
46.2.the Service Period for the AGL Debt commenced three days before Witness C’s official vacate date of the Maribyrnong Address.
47.During that telephone call, the Panthera representative stated that if Witness C wanted to prove she was not liable for the AGL Debt, she would need to provide 100 points of primary evidence which were the fraud requirements for AGL, which could include:
47.1.a lease or tenancy agreement (the Panthera Representative noted that Witness C had already provided this),
47.2.certificate of the title or the contract of sale or another document showing where Witness C was living during the Service Period, which could be the rates notices or other bills for the address where Witness C was living during the Service Period,
47.3.a driver’s licence or other identification, and
47.4.utility bills for the address where Witness C was living during the Service Period.
48.The Panthera representative also stated during that call that Witness C could provide secondary evidence in the form of a statutory declaration, landline phone bill or a bank statement.
49.During the call, the Panthera Representative indicated that she thought it would be “extremely difficult” for Witness C to prove to AGL that she was not liable for the AGL Debt.
50.On 7 February 2018, Witness C made a statutory declaration stating that she did not open the account the subject of the AGL Debt. On 2 April 2018, , Witness C’s husband provided a copy of the statutory declaration to Panthera.
51.On 4 April 2018 Panthera notified Witness C that Panthera was prepared to accept a 50% discount in return for payment of the AGL Debt, and asked for payment of that amount. This communication was sent to Witness C as part of an automated campaign before Panthera reviewed the 2 April 2018 email attaching the statutory declaration.
52.Panthera again asked Witness C’s husband for further documents by email on 26 and 30 April 2018, after Panthera had received a copy of Witness C’s statutory declaration denying liability for the AGL Debt. The default was removed from Witness C’s credit file on or about 21 May 2018.
(d) ACCC-ASIC Debt Collection Guidelines
53.The ACCC and ASIC jointly publish the ACCC-ASIC Debt Collection Guidelines for collectors and creditors (Guidelines). The Guidelines are intended to assist debt collectors in ensuring collection activities are compliant with the Commonwealth consumer protection laws but do not have statutory force. At all relevant times, Panthera was aware of the Guidelines. At all relevant times, provision 13 of the Guidelines stated:
13. If Liability is disputed
(a) Collection activity (including credit report listing) should be suspended if a person contacted about a debt claims that:
- they are not the alleged debtor
- the debt was never incurred, or
- the debt has been paid or otherwise settled
- and you have not already confirmed their identity and liability.
(b) If collection activity is continued without properly investigating claims that a debt is not owed, including whether a debt is statute-barred, there is considerable risk of breaching the law.
Assignment
(c) If you are considering assigning a debt, and the debt is in dispute, you should think carefully about providing additional information to the assignee.
Identity of debtor is disputed
(d) A person must not be pursued for a debt unless there are reasonable grounds for asserting that the person is liable for the debt.
…
(e) Reasonable steps should be taken to ensure that the person contacted or attempting to be contacted is the alleged debtor. If the identity of the debtor cannot be established with sufficient certainty (because they deny their identity and you do not have any other supporting evidence to the contrary) all contact with that person should cease. Failure to do so may risk breaching the Privacy Act. See part 2, section 8, Privacy obligations to the debtor and third parties.
Quantum of or liability for a debt is disputed
(f) If the debtor’s liability for the debt cannot be established when challenged, collection activity should cease. A letter to the debtor should be considered advising that collection activity has ceased and the circumstances (if any) in which collection activity may be resumed in the future.
(g) It is misleading to state or imply that the debtor must prove they are not liable for the debt. In legal proceedings, proof of the debt lies with the person alleging the debt is owed to them.
(h) If the parties are unable to resolve a dispute about liability for a debt or the amount owed, you may have an obligation to advise the debtor of internal or external dispute resolution processes available— see further under part 2, sections 22, Resolving debtor complaints and disputes and 24, The role of independent external dispute resolution schemes.
(i) Subject to the next paragraph, further communication with a debtor, after the debtor has clearly denied liability and/or stated an intention to defend any legal proceedings brought against them, is not appropriate. In these circumstances, you have the option of starting legal proceedings if you choose to pursue the debt.
(j) However, further communication in writing may be appropriate after a denial of liability:
·to clarify the basis of the creditor’s or collector’s claim and the consequences of legal action being taken
·to advise the debtor of the creditor’s or collector’s intention to start legal proceedings, and the steps involved
·to put a genuine proposal to the debtor for settlement of the debt.
Further communication is also appropriate when it is subsequently authorised or requested by the debtor.
(k) Further communication with the debtor about any other debt, or any part of a debt that is not denied remains appropriate.
(l) If a court judgment is obtained for a debt for which liability had been denied, you are entitled to start or resume communication with the debtor for that judgment debt (assuming the judgment has not been set aside).
B. Admissions
54.Panthera admits the following contraventions of the ACL.
(e) Witness A:
55.Between 22 September 2017 and 9 October 2017 and between 29 June 2018 and 14 July 2018, Panthera engaged in undue harassment of Witness A, in contravention of s 50(1) of the ACL, by:
55.1.repeatedly contacting Witness A as set out in paragraph 13 above,
55.2.repeatedly requiring Witness A to provide proof that she was not liable for the Origin Debt, as set out in paragraphs 11, 20 and 21 above;
55.3.continuing to pursue the debt after Witness A had disputed liability for the Origin Debt as set out in paragraph 11 above, in a manner contrary to provisions 13(a), (d), (e), (f), (g) and in some instances (i) of the Guidelines;
in circumstances where:
55.4.Panthera was aware that Witness A had disputed liability for the debt, and
55.5.Witness A was not in fact liable for the debt.
(f) Witness B:
56.Between early January 2017 and 4 April 2017, Panthera engaged in undue harassment of Witness B, in contravention of s 50(1) of the ACL, by:
56.1.requiring Witness B to provide a fraud report as proof that he was not liable for the Telstra Debt, as set out in paragraph 29 above;
56.2.continuing to pursue the debt after Witness B had disputed liability for the Telstra Debt as set out in paragraph 29 above, in a manner contrary to provisions 13(a), (d), (e), (f), (g) and in some instances (i) of the Guidelines;
in circumstances where:
56.3.Panthera was aware that Witness B disputed liability for the debt, as set out in paragraph 27 above, and
56.4.Witness B was not in fact liable for the debt.
57.On 4 April 2017 Panthera made a false or misleading representation concerning the existence, exclusion or effect of a right, in contravention of s29(1)(m) of the ACL, as set out in paragraph 34 above, by:
57.1.representing that Witness B was required to pay at least $100 to Panthera to have a default listing removed from his credit history,
in circumstances where:
57.2.the default listing was inaccurate, and
57.3.Witness B had a right to have the default listing removed free of charge, pursuant to s21V of the Privacy Act 1988 (Cth).
(g) Witness C
58.Between 4 August 2014 and 4 April 2018, it engaged in undue harassment of Witness C, in contravention of s 50(1) of the ACL, by:
58.1.repeatedly contacting Witness C as set out in paragraph 44 above, in pursuit of payment of the AGL Debt;
58.2.repeatedly requiring Witness C to provide proof that she was not liable for the AGL Debt, as set out in paragraphs 42, 47 and 52 above;
58.3.continuing to pursue the debt after Witness C had disputed liability for the AGL Debt as set out in paragraph 40 above, in a manner contrary to provisions 13(a), (d), (e), (f), (g) and in some instances (i) of the Guidelines;
in circumstances where:
58.4.Panthera was aware that Witness C had disputed liability for the debt; and
58.5.Witness C was not in fact liable for the debt.
PARTIII ORDERS BY AGREEMENT
59.The proper approach to civil regulatory orders which are sought on an agreed basis is that explained in Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482. The High Court there reaffirmed the practice of acting upon agreed penalty submissions, as explained in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41,993.
60.The plurality emphasised, at [46], the ‘important public policy involved in promoting predictability of outcome in civil penalty proceedings’ which ‘assists in avoiding lengthy and complex litigation and thus tends to free the courts to deal with other matters and to free investigating officers to turn to other areas of investigation that await their attention.’ Their Honours went on to state, at [58]:
Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and … highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty.
61.A further reason for courts acting upon such submissions is that they are advanced by a specialist regulator able to offer ‘informed submissions as to the effects of contravention on the industry and the level of penalty necessary to achieve compliance’, albeit that such submissions will be considered on the merits in the ordinary way: see [60]-[61].
62.These principles are not confined to agreed submissions on pecuniary penalties but apply equally to agreement on other forms of relief. The High Court’s conclusions as to the desirability of acting upon agreed penalty submissions were made in the context of its broader recognition that civil penalties were but one of numerous forms of relief which regulators could choose and pursue as a civil litigant in civil proceedings including by making submissions as to that relief (see [24], [57]-[59], [63], [103], [107]). This is consistent with the long-standing judicial support for agreed positions on declarations, injunctions and the like in civil regulatory proceedings, having regard the public interests explained in NW Frozen Foods.[2]
[2]See eg ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405, [72], [75]; ACCC v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79, [1], [20]-[21], [29]; ACCC v Target Australia Pty Ltd (2001) ATPR 41-840, [24]; ACCC v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548, [2]; ACCC v Construction, Forestry, Mining and Energy Union [2007] ATPR 42-140, [4] (ACCC v CFMEU).
PARTIV DECLARATIONS OF CONTRAVENTIONS
63.The contraventions are established by the facts and admissions set out in these submissions. For the following reasons, it is appropriate to make declarations as to those contraventions as set out in the Proposed Orders.
64.The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth). The preconditions for declaratory relief, as explained by the High Court,[3] are made out:
[3]See Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 437-438 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581–582. As to their application in the context of declarations of civil contraventions see ASIC v Axis International Management Pty Ltd (2009) 178 FCR 485, [26]-[43].
64.1.There is a real and not a hypothetical question: There is a direct and important question as to whether Panthera’s conduct towards each of Witness A, B and C contravened the provisions of the ACL.
64.2.The applicant has a real interest in raising it: The ACCC has an obvious interest, as the statutory regulator discharging its functions in the public interest, in bringing the proceedings.
64.3.There is a proper contradictor and real consequences: Panthera, as the entity declared to have contravened the law, has an interest in opposing the relief. This remains so notwithstanding its admissions and agreement.[4]
[4]ACCC v MSY Technology Pty Ltd (2012) 201 FCR 378, [30]-[33].
65.The utility of declarations that set out the particular liability found, and the basis for the penalties ordered, is recognised by the High Court and Full Federal Court, and in the great majority of civil penalty cases at primary judge level.[5] In this case, the declarations are desirable and appropriate because they will record the Court’s disapproval of the conduct, vindicate the concerns of relevant consumers, assist the ACCC in carrying out the duties conferred on it by the CCA, assist in clarifying the law, and make clear to other would-be contravenors that such conduct is unlawful.[6]
[5]See the helpful summary in Axis International, [26]-[43] and, more generally, Rural Press Limited v ACCC (2003) 216 CLR 53, [95] and Australian Softwood Forests Pty Ltd v Attorney-General (NSW); Ex Relatione Corporate Affairs Commission (1981) 148 CLR 121,125, 144-5; Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89, 97-9, 106, 107; Stuart v CFMEU (2010) 185 FCR 308, [35], [94]; and MSY Technology, [35].
[6]See generally Axis International, [26]-[31] and [42]; ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405, [77]-[79]; ACCC v CFMEU, [6] (and the cases there cited).
PARTV COMPLIANCE PROGRAM
66.It is appropriate to require Panthera to continue to maintain a compliance program as sought by consent in the Proposed Orders. To ensure compliance in such ways secures a fundamental purpose of the statutory regime: see eg NW Frozen, 294.
67.Section 246(2)(b) of the ACL empowers the Court to make such orders and the preconditions enlivening that power are met in the present case. First, it is sought by the regulator in relation to a person who has contravened provisions of Chapter 3 of the ACL: s 246(1). Second, it has the purpose of ensuring that Panthera does not engage in the same conduct, or similar or related conduct, for a period not exceeding 3 years: s 246(2).
68.The Court has recognised a number of considerations as being applicable to the discretion to grant such an order: see generally ACCC v Sontax Australia (1988) Pty Ltd [2011] FCA 1202, [36]. By reference to the considerations there summarised by Gordon J, the proposed order is desirable in the present case because:
68.1.It has a clear nexus to the contravening conduct. The order requires Panthera to continue to maintain a compliance program, with particular emphasis on (a) ensuring compliance with ss 29 and 50 of the ACL and (b) providing guidance on the proper process for dealing with consumers who dispute liability for a debt. These issues are the subject of the wrongdoing in the present case.
68.2.It will ensure a company-wide awareness of responsibilities and obligations in relation to the contravening conduct or similar or related conduct by requiring Panthera to continue to maintain compliance measures designed to minimise the risk of similar conduct occurring in the future.
68.3.It is in the public interest that Panthera continue to implement such a system having regard to the wrongdoing in the present case and, in particular, the fact that the conduct in respect of Witness A and C occurred over a lengthy period of time and involved multiple instances of contact.
PARTVI PECUNIARY PENALTIES
69.Pursuant to section 224(1)(a)(ii) of the ACL, if the Court is satisfied that a person has contravened a provision of Part 3-1 of the ACL (which includes ss 29 and 50), the Court may order the person to pay such pecuniary penalty, in respect of each act or omission by the person to which it applies, as the Court determines to be appropriate.
70.As explained, Commonwealth v Director highlights the desirability of imposing the agreed pecuniary penalties, subject to the Court being satisfied that they are appropriate. Their appropriateness is explained below by addressing in turn:
70.1.the central object of imposing penalties, namely the need to secure deterrence; and
70.2.the assessment of an appropriate penalty for each contravention.
A. The central purpose – ensuring deterrence
71.The requirement for a penalty of appropriate deterrent value: In Commonwealth v Director, the High Court emphasised that the primary purpose of civil penalties is to secure deterrence; in contrast to criminal sentences, they are not concerned with retribution and rehabilitation, but are ‘primarily if not wholly protective in promoting the public interest in compliance’: [55], and see also [59] and [110].
72.The High Court affirmed and applied a long line of authority including the well-known statements of French J, as his Honour then was, in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076, 52,152 (TPC v CSR). His Honour there referred to the 'primacy of the deterrent purpose in the imposition of penalty' and described deterrence, both specific and general, as the 'principal, and I think probably the only, object of the penalties'. Accordingly, the various penalty factors were to be considered in setting a penalty of ‘appropriate deterrent value'.
73.The High Court has more recently applied Commonwealth v Director in explaining that the effectiveness of the ‘principal object’ of deterrence will depend upon a pecuniary penalty having the necessary ‘sting or burden’ to secure ‘the specific and general deterrent effects that are the raison d’etre of its imposition’: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157, [116] (ABCC v CFMEU). [7]
[7]For recent applications of the principle see ACCC v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996 at [16] – [19]; ACCC v Cornerstone Investment Aust Pty Ltd (in liq) (No 5) [2019] FCA 1544 at [41]; Secretary, Department of Health v PeptideClinics Australia Pty Ltd (2019) 137 ACSR 494 at [29].
74.The primacy of deterrence has likewise been emphasised in various ways in relation to breaches of the ACL. For example:
74.1.The Full Federal Court has explained the need to ensure that the penalty in such cases ‘is not such as to be regarded by that offender or others as an acceptable cost of doing business’ and will deter them from ‘the cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention’: Singtel Optus Pty Ltd v ACCC (2012) 287 ALR 24, [62].
74.2.The High Court, applying the observations in Singtel Optus, has referred to the ‘primary role’ of deterrence in assessing the appropriate penalty for contraventions where commercial profit is the driver of the contravening conduct: ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640, [64]-[66].
74.3.The Full Federal Court has emphasised that the ‘critical importance of effective deterrence must inform the assessment of the appropriate penalty’: ACCC v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25, [153]. The Court explained that ‘the greater the risk of consumers being misled and the greater the prospect of gain to the contravener, the greater the sanction required, so as to make the risk/benefit equation less palatable to a potential wrongdoer and the deterrence sufficiently effective in achieving voluntary compliance’: [151] and, more generally, [57], [148]-[153], [164], [176].
(h) General deterrence considerations in the present case:
75.A number of matters point to the need for a penalty that will deter other businesses which may be minded to contravene in a similar way.
76.First, debt collection and recovery is a growing industry in Australia. It involves the purchase of ‘bad’ debts by recovery agencies, such as Panthera, at heavily discounted prices. Recovery agencies then seek to recover some or all of the debt, for the purpose of generating a profit on the original purchase price of the debt. Debt recovery often involves frequent and repeated contact with members of the community, many of whom may be suffering financial hardship or disadvantage. As such, the potential impact of undue harassment or misrepresentations to consumers in that industry (and the associated financial gain) are significant. Any perception that penalties attaching to such gains could be absorbed as a mere cost of doing business would give rise to the potential for very widespread and significant harms to consumers. This requires a strong deterrent message which will prevent any cynical profit/risk calculus: Singtel Optus, [61]-[64]; Reckitt, [149]-[153]; Peptide Clinics, [29]; Cornerstone, [41]; Birubi, at [17]
77.Second, and more specifically to the present case, the conditions in which the relevant conduct occurred are likely to continue to exist. That is, it is likely that some consumers who are contacted by a debt recovery agency will deny liability for a debt, in circumstances where they are in fact not liable for the debt. As a result, there remains the potential for business gains and consumer harms from conduct of a similar kind.
78.Third, debt recovery agencies should be left in no doubt that a strong compliance program, sufficient to pick up and address conduct of the present kind, is not optional. If the burden of a penalty is seen to be less than the cost or effort of such a program, businesses may be tempted to prefer to absorb the risk of being caught over careful compliance with the ACL. Such an approach would, in turn, give contravening companies an advantage over those which do take on the proper costs of compliance: see eg Reckitt, [152].
79.Panthera has an existing compliance program shaped around the Guidelines that it continues to improve. The contraventions were isolated instances where Panthera’s policies and procedures were not followed by its staff, despite the fact that all staff receive training, both initially and ongoing. In the financial year ending 30 June 2019, Panthera made over 19 million contacts in the course of its debt recovery operations.
80.Fourth, the protections against Unfair Practices contained in Part 3-1 of the ACL are an important part of Australia’s consumer protection framework. They have formed part of the CCA for many years. Members of the community are entitled to expect that corporations will act in accordance with the standards of conduct set out in Part 3-1.
81.Fifth, the penalties imposed in the present case can be expected to be of interest to affected consumers, the public more broadly and to the debt recovery sector generally. Accordingly, the imposition of appropriate deterrent penalties in the present case will validate the behaviour and efforts of compliant businesses and send a warning to non-compliant ones.
(i) Specific deterrence considerations in the present case:
82.A penalty must be sufficiently high to deter Panthera from engaging in like conduct in the future. Penalties should reflect an adequate level of burden, such that any potential contravener would seek to avoid the risk of penalty altogether, rather than factoring in a penalty as an acceptable cost of doing business.[8]
[8]ABCC v CFMEU at [116]; Peptide Clinics at [29]; Cornerstone at [41]; Birubi at [17]
83.Panthera is the second largest debt recovery agency operating in Australia. Panthera’s financial information, set out at paragraph 111 below, shows it is a large corporation (in terms of revenue) and is very profitable. As such, Panthera’s corporate size and profitability require a significant penalty in order to achieve specific deterrence.
84.The fact that Panthera has made admissions and agreed to the relief set out in these submissions should properly be reflected in any penalty, but does not overcome the need for specific deterrence as a significant factor: ACCC v Coles Supermarkets Australia Pty Limited [2015] FCA 330, [79] (Coles Supermarkets).
B. Imposing penalties for multiple contraventions
85.Each of the undue harassment contraventions and the misrepresentation contravention gives rise to a separate contravention of the ACL. The parties seek that penalties be imposed in respect of four separate contraventions.
86.Each of the contraventions is sufficiently distinct to be distinguishable rather than occurring as part of the same conduct: ACCC v Yazaki Corporation [2018] FCAFC 73, [217]-[224]; Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd (No 2) [2017] FCA 205, [13]-[17].[9] The conduct giving rise to the s 50(1) (undue harassment) contraventions in respect of each of Witness A, B and C arises over different time periods, in respect of different consumers and is engaged in by different Panthera representatives. The false or misleading representation in relation to Witness B is factually separate to the conduct giving rise to the undue harassment contravention in respect of Witness B.
[9]For the application of the same principle in other regimes see eg Australian Energy Regulator v Snowy Hydro Limited (No 2) [2015] FCA 58, [107]; Minister for Immigration and Border Protection v Hallmark Computer Pty Ltd (2016) 334 ALR 677, [28]; Peptide Clinics at [33].
87.The contraventions are not so inextricably interrelated that they should be viewed as one multi-faceted ‘course of conduct’: Yazaki, [234]. The question whether certain contraventions should be treated as being truly a single course of conduct is a factual enquiry to be made having regard to all of the circumstances of the case. It is a 'tool of analysis' which can, but need not, be used in any given case: Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461, [39]-[42]; Yazaki, [234]-[235]; ACCC v Cement Australia Pty Ltd [2017] FCAFC 159, [421]-[424]; Singtel Optus, [53].
88.The totality principle requires the Court to make a 'final check' of the penalties to be imposed, considered as a whole, to ensure the cumulative total of the penalties is 'just and appropriate,'[10] and not too low or too high. The parties submit that the penalty sought in respect of each contravention adequately reflects the nature and circumstances of the conduct giving rise to each contravention. As a result, the parties agree that no totality reduction is required.
[10]See eg ACCC v Safeway Stores Pty Ltd (1995) ATPR 41-375 at 40,169; ACCC v EnergyAustralia Pty Ltd [2014] ATPR 42-469 at [101]-[102]; See also Peptide Clinics at [34].
89.As noted above, the primary objective of civil penalties is to secure deterrence, with the effect that the ‘proportionality principle’ does not apply in a civil penalties context.[11] As a result, the parties submit that the ‘proportionality principle’ has no role to play in assessing the appropriateness of the penalties sought in this instance and, as such, no further reduction is required.
[11]See Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at [55] – [59]; ABCC v Pattinson [2019] FCA 1654.
C. Determining an appropriate penalty for each contravention
90.A number of principles guide the determination of an appropriate penalty amount. These are explained briefly, followed by a consideration of the proposed penalty amounts having regard to all the circumstances of the present contraventions.
(j) Principles to be applied in setting a penalty of ‘appropriate deterrent value’
91.Statutory maximum: In Markarian v The Queen (2005) 228 CLR 357, [31], the High Court held that 'careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.' The same considerations apply in relation to civil penalties: Reckitt, [154]-[155]; Flight Centre, [55]; Peptide Clinics, [31]; Birubi, [69] – [71].
92.Prior to 1 September 2018, the maximum penalty for contraventions by a company of a provision in Part 3-1 of the ACL was $1.1 million: item 2 of s 224(3). This $1.1 million maximum applies separately to each of Panthera’s four contraventions, thus giving rise to a total maximum penalty of $4.4 million.
93.Identifying the various factors: Section 224(2) of the ACL requires the Court to have regard to ‘all relevant matters’ in determining the appropriate penalty. It specifies a number of (non-exhaustive) statutory factors: the nature and extent of the wrongdoing, any loss or damage suffered, the circumstances of the wrongdoing and any Court findings as to prior similar conduct. Numerous other relevant factors have been identified and applied. For the most part these have their genesis in the ‘French factors’ set out in TPC v CSR. In the consumer law context, a modified form of that list has been found to be helpful: see Singtel Optus, [37]; Coles Supermarkets, [8]. It includes the size of the contravener, whether the wrongdoing was deliberate or covert, the involvement (or not) of senior management, whether the contravener has a culture of compliance and any relevant prior conduct.
94.Synthesising the factors: The reasoning process in deriving a penalty figure having regard to the various relevant factors is conventionally described as one of ‘instinctive synthesis’, as explained by the High Court in Markarian. The High Court there held that the process requires a weighing together of all relevant factors, rather than a sequential, mathematical process (such as starting from some pre-determined figure and making incremental additions or subtractions for each separate factor). It emphasised further the importance of ensuring the reasoning process is transparent.
95.This approach has been applied consistently in the civil penalty context: see eg Coles Supermarkets, [6]; Cornerstone, [43] to [45]; Birubi, [78]. While it remains available, it is relevant to note a qualification. In Commonwealth v Director at [56] the High Court identified unique features of the instinctive synthesis conducted in criminal sentencing. In that context the synthesis involves not only the facts and circumstances of the wrongdoing, but also the competing sentencing considerations (retribution, rehabilitation, etc) and the various sentencing options (ranging from recognisance orders through to imprisonment). These latter aspects of the synthesis are not present in relation to civil penalties.
(k) The principles applied – the proposed penalties have appropriate deterrent value
96.The parties submit that, having regard to the particular circumstances of this case, the following penalties will have appropriate deterrent effect in respect of each of the admitted contraventions:
Witness Contravention Penalty Witness A 1 x s 50(1) $125,000 Witness B 1 x s 50(1) $125,000 1 x s 29(1)(m) $125,000 Witness C 1 x s 50(1) $125,000 Total $500,000 97.The reasons why the proposed penalties would be an appropriate deterrent can be summarised briefly as follows:
97.1.First, Panthera is a large and profitable company. It is the second largest debt recovery agency operating in Australia. As a result, a significant penalty is necessary in order to achieve specific deterrence.
97.2.Second, the proposed penalties are necessary and sufficient (a) to remind other debt collection companies of the importance of ensuring that they do not unduly harass or mislead customers in the course of their collection activities; and (b) to encourage them to comply with the Guidelines when dealing with consumers.
97.3.Third, the proposed penalties reflect the nature and seriousness of the conduct. That is, the penalties reflect that the conduct arose in respect of three individual consumers, at different times during a period of approximately four years, and resulted in stress and inconvenience to the affected consumers.
97.4.Fourth, the penalties make proper allowance for the following considerations: (a) ACCC does not allege that Panthera’s conduct was systemic; (b) Panthera received a total of $100 from the consumers as a result of the conduct; and (c) Panthera has made admissions and cooperated with the ACCC.
98.Taking these matters into account, the parties submit that the proposed penalties are appropriate and within the reasonable range of penalties that ought to be ordered by the Court. A more detailed discussion of the factors which inform these matters is set out below.
(i) Nature, extent and duration of the conduct
99.Panthera’s conduct caused inconvenience and stress to all three consumers and created a risk that they would pay money that they did not owe to Panthera.
100.The duration of the contravening conduct in respect of Witnesses A and C occurred over the following periods:
100.1.Witness A: between 22 September 2017 and 9 October 2017 (approximately two weeks) and between 29 June 2018 and 14 July 2018 (approximately two weeks) and arose from 12 separate instances of attempted contact by Panthera.
100.2.Witness C: between 4 August 2014 and 4 April 2018 (approximately 3 years and 9 months) and arose from 47 separate instances of contact from Panthera.
101.In respect of Witness B, Panthera’s conduct occurred over a period of approximately 3.5 months. However, Panthera’s conduct resulted in Witness B paying $100 to Panthera in order to have the default listing removed from Witness B’s credit report, in circumstances where Witness B (a) did not owe the debt giving rise to the default, and (b) had a statutory right to have the default removed free of charge.
102.Panthera’s contravening conduct which is the subject of the Court’s consideration is confined: it relates to 3 consumers only, and the ACCC does not allege systemic conduct. However, the ACCC is concerned as to how Panthera dealt with these individual consumers, who did not in fact owe the debts that were being pursued by Panthera. While Panthera did not know that fact, the consumers had clearly put Panthera on notice that they disputed the debts.
103.The proposed penalties reflect the relatively limited scope of the conduct.
(ii) Relevant circumstances, including deliberateness and the role of management
104.Panthera’s conduct was deliberately engaged in, but arose from a breakdown in Panthera’s usual systems. The ACCC accepts that Panthera’s conduct was not deliberately designed to contravene the ACL. However, it was designed to illicit payment of a debt from each of Witnesses A, B and C, in circumstances where they had disputed liability for the debt.
105.It is also appropriate to note that there is no evidence to suggest that senior management was involved in or had knowledge of the conduct. Rather, the conduct appears to have arisen as the result of the actions of several relatively low level employees who failed to follow Panthera’s policies and procedures.
106.The proposed penalties reflect the non-involvement of senior management in the contraventions.
(iii) Loss or damage caused by the conduct
107.Panthera’s conduct caused Witness B to pay $100 when he was not required to do so. Panthera’s conduct did not cause Witnesses A and C any direct financial loss.
108.Nonetheless, Panthera’s conduct did cause harm to each of Witness A, B and C. Panthera’s conduct caused inconvenience and stress to each Witness. Witness A and B were put to the inconvenience of attending a police station to obtain a fraud report. Witness A and C were required to provide detailed personal information to Panthera over a significant period of time, in circumstances where they had repeatedly denied liability for the debt. Panthera’s conduct resulted in Witness B suffering delay in obtaining a car loan and Witness C not being able to obtain a mortgage or mobile phone.
(iv) Size of contravener and financial position
109.Panthera is a private company limited by shares that is incorporated in Australia. Panthera was established in 2010 and is the second largest debt recovery agency operating in Australia. Its related entities have operated in the debt purchase and collection business since 2005. Panthera employs the equivalent of 400 full time employees.
110.In the financial year to 30 June 2019 Panthera had 855,865 distinct customers. It made over 19 million total contacts in the year with an average daily contact count of 52,057.
111.In the financial years ending June 2016 to June 2019, Panthera reported financial information as follows:
Financial year Total revenue Net profit 2015-16 $46,787,345 $23,181,310 2016-17 $54,022,479 $22,016,936 2017-18 $63,353,082 $19,951,385 2018-19 $85,507,375 $32,732,061 112.These figures demonstrate that Panthera is a large corporation and very profitable company. While the financial resources of a respondent do not warrant the imposition of a higher penalty than would otherwise be appropriate,[12] to have the necessary deterrent effect a penalty must be imposed at a level that serves to maintain the sting or burden of a penalty.[13] The parties agree that the proposed penalties adequately strike this balance.
[12]Coles Supermarkets, [34].
[13]ABCC v CFMEU (2018) 262 CLR 157, [116].
(v) Prior similar conduct and culture of compliance with ACL
113.Panthera has not previously been found to have contravened the ACL.
114.Panthera takes compliance with the ACL seriously, and has policies and procedures in place for its business which are covered by an ISO quality management systems standard accreditation (9001:2015). The contravening conduct occurred inconsistently with those internal policies and procedures.
115.In addition, Panthera:
115.1.is a member of the Australian Financial Complaints Authority, the Australian Collectors and Debt Buyers Association and a founding member of the National Hardship Register;
115.2.maintains a learning and development team who deliver compliance training to all staff relating to Panthera’s policies and obligations under the law. The training is provided initially and on an ongoing basis;
115.3.maintains a risk and compliance team which includes a quality assurance team. The quality assurance team monitors operations to measure compliance and identify shortcomings;
115.4.maintains a resolutions team. The staff of the resolutions team have specific training to resolve disputes with consumers including those who dispute liability for debts when contacted by Panthera; and
115.5.employs a two dedicated financial counsellor liaison officers, who manage individual cases of hardship and engage with financial counselling groups.
116.Since the ACCC’s contact with Panthera in relation to this matter, Panthera has increased its compliance reviews, including the level of monitoring of collectors’ calls and records, to ensure that levels of compliance and quality are above industry standard. Panthera has also recently employed an experienced General Manager of Risk and Compliance, Patrick Brown to oversee and improve Panthera’s compliance systems.
(vi) Cooperation
117.Cooperation with authorities in the course of investigations and subsequent proceedings can properly reduce the penalty that would otherwise be imposed. The reduction reflects the fact that such cooperation: increases the likelihood of cooperation in future cases in a way that furthers the object of the legislation; frees up the regulator's resources, thereby increasing the likelihood that other contraveners will be detected and brought to justice, and facilitates the course of justice: see e.g. Commonwealth v Director, [46]; NW Frozen Foods at 293-294; Mobil Oil at [55].
118.Panthera has cooperated with the ACCC by making substantive admissions, agreeing to the making of appropriate orders (including as to a proposed penalty), and joined in the making of these submissions. Panthera also appropriately engaged with the ACCC during the ACCC’s investigation and agreed to participate in mediation at an early stage in these proceedings.
119.In the circumstances a meaningful discount for cooperation is appropriate. The proposed penalties factor in such a discount.
(vii) Other decisions
120.The Full Court has repeatedly emphasised that, although similar contraventions should incur similar penalties, the differing circumstances of individual cases mean that a penalty in one case cannot dictate the penalty in a later case; as a result, comparisons with previous penalties will rarely be useful: Singtel Optus, [60]; Flight Centre, [69]; Yazaki, [237]; NW Frozen Foods at 295-6. Insofar as any comparison with other respondents in other cases may be undertaken, what is sought is not numerical consistency, but the consistent application of principle.[14] Additionally, it should be noted that the ‘parity’ label often used in this context is a misnomer and inapt, as it is a criminal sentencing principle applied to ensure fairness of sentences as between co-offenders for the same offence: see eg Flight Centre, [70].
[14]McDonald v Australian Building and Construction Commissioner (2011) 2020 IR 467 at [23]-[25], applying the comparable principle laid out by the High Court in the sentencing context in Hili v The Queen (2010) 242 CLR 520, [48]-[49], reiterated since in R v Pham (2015) 256 CLR 550, [28]-[29].
121.The penalty sought in this case involves the proper application of appropriate principles. To the limited extent it can be compared with other decisions it can be seen to be broadly comparable. The following cases illustrate this point, noting the very substantial differences which make such comparisons fraught.
122.ACCC v ACM Group Limited (No 3) [2018] FCA 2059: A penalty of $750,000 was imposed for contraventions of ss 50(1)(b) (undue harassment), 50(1)(b) (coercion) and 21(1)(a) of the ACL, in respect of two consumers, CT and JR. ACM was a debt recovery agency, who purchased debts at a significantly reduced price and sought to recover them from consumers at a profit. The conduct giving rise to the s 50(1)(b) (undue harassment) contravention in respect of CR took place over a four year period and consisted of approximately 20 letters of demand and 40 phone calls. The conduct giving rise to the 50(1)(b) (coercion) contravention in respect of JR, arose during a single phone call. The s 21(1)(a) contravention arose due to a combination of the undue harassment and coercion, and associated misleading and deceptive conduct that was found to contravene s 18. The contraventions arose in circumstances where ACM knew both CR and JR were subject to particular vulnerabilities. ACM had previously been found to have contravened the similar consumer protections provisions of the ASIC Act. ACM contested both liability and penalty. Having regard to these factors, the parties submit that the conduct considered in ACM was all together more serious than in the present case.
123.ACCC v ABG Pages Pty Ltd [2018] FCA 764: A penalty of $300,000 was imposed on the corporate respondent and $40,000 on a knowingly concerned individual, for contraventions of ss 21, 22, 29(1)(d), 29(1)(h), 29(1)(i), 29(1)(m), 50 (undue harassment). The conduct giving rise to the contraventions arose over an approximately five year period and related to ABG Pages’ high pressure and aggressive sales tactics of online advertising. The conduct was found to give rise to systemic unconscionable conduct. Three undue harassment contraventions were made out in respect of three consumers, and arose from 933, 13 and 205 instances of contact respectively. The contact with each consumer occurred over a period of approximately 12 months in each instance. ABG’s revenue during the relevant period (2011 to 2016) was between $349,938 and $961,019. The parties submit that the conduct considered in ABG Pages was significantly more serious that in the present case. However, the penalty reflects that ABG had a much smaller corporate size than Panthera.
124.ACCC v Harrison (No 2) [2017] FCA 182: A penalty of $200,000 was imposed on the corporate respondents and $50,000 on a knowingly concerned individual, for contraventions of ss 21 and 50 (undue harassment) of the ACL. The Harrison group companies traded in telecommunication services. Undue harassment contraventions arose in respect of four consumers, from pressure to pay fees, where fees were not required to be paid. The s 21 contravention arose from the Harrison Group’s systemic practice of transferring contracts between its corporate group and included the undue harassment. Actual financial loss was established in respect of most consumers. The contravening companies were small, with modest profitability. Business revenue was approximately $80,000 - $100,000 per month (between about $1 million and $1.2 million per year), with profit between $100,000 and $120,000 per year. The conduct was serious, deliberate, arose from actions of senior management and extended over a number of years. The parties submit that (a) the conduct considered in Harrison is analogous but more serious than the present case, and (b) the penalty amount reflects that he Harrison Group was significantly smaller and less profitable than Panthera.
PARTVII COSTS
125.Panthera has agreed to contribute $100,000 towards the ACCC’s costs of the proceeding.
126.It is agreed the costs contribution will be paid within 30 days of the Court’s order.
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